SALE AND SERVICING AGREEMENT among CATERPILLAR FINANCIAL ASSET TRUST 2008-A Issuing Entity CATERPILLAR FINANCIAL FUNDING CORPORATION Depositor and CATERPILLAR FINANCIAL SERVICES CORPORATION Servicer Dated as of April 1, 2008
Exhibit
4.3
among
CATERPILLAR
FINANCIAL ASSET TRUST 2008-A
Issuing
Entity
Depositor
and
CATERPILLAR
FINANCIAL SERVICES CORPORATION
Servicer
Dated
as of April 1, 2008
TABLE
OF CONTENTS
Page
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DEFINITIONS
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SECTION
1.01. Definitions
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SECTION
1.02. Other Definitional
Provisions
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ARTICLE
II
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CONVEYANCE
OF RECEIVABLES
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SECTION
2.01. Conveyance of
Receivables
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SECTION
2.02. Closing
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SECTION
2.03. Books and Records
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ARTICLE III
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THE
RECEIVABLES
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SECTION
3.01. Representations and Warranties of
Depositor
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SECTION
3.02. Repurchase by Depositor or CFSC Upon
Breach
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SECTION
3.03. Custody of Receivable
Files
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SECTION
3.04. Duties of Servicer
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ARTICLE IV
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ADMINISTRATION
AND SERVICING OF RECEIVABLES
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SECTION
4.01. Duties of Servicer
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SECTION
4.02. Collection of Receivable
Payments
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SECTION
4.03. Realization upon
Receivables
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SECTION
4.04. Physical Damage
Insurance
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SECTION
4.05. Maintenance of Security Interests in Financed
Equipment
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SECTION
4.06. Covenants of Servicer
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SECTION
4.07. Purchase by Servicer of Receivables upon
Breach
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SECTION
4.08. Servicing Fee
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SECTION
4.09. Servicer Report
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SECTION
4.10. Annual Statement as to Compliance; Notice of
Default
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SECTION
4.11. Annual Independent Certified Public Accountants'
Attestation
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SECTION
4.12. Servicer Expenses
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SECTION
4.13. Reports to the
Commission
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ARTICLE V
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DISTRIBUTIONS;
RESERVE ACCOUNT; CERTIFICATEHOLDER AND NOTEHOLDER
INFORMATION
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SECTION
5.01. Establishment of Trust
Accounts
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-i-
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SECTION
5.02. Interest Rate Swap
Agreement
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SECTION
5.03. Collections
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SECTION
5.04. Additional Deposits
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SECTION
5.05. Distributions
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SECTION
5.06. Reserve Account
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SECTION
5.07. Certificateholder and Noteholder
Information
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SECTION
5.08. Net Deposits
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SECTION
5.09. Tax Monitoring.
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ARTICLE VI
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THE
DEPOSITOR
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SECTION
6.01. Representations of
Depositor
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SECTION
6.02. Liability of Depositor;
Indemnities
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SECTION
6.03. Merger or Consolidation of, or Assumption of the Obligations
of, Depositor
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SECTION
6.04. Limitation on Liability of Depositor and
Others
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SECTION
6.05. Depositor May Own the Certificate or
Notes
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ARTICLE VII
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THE
SERVICER
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SECTION
7.01. Representations of
Servicer
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SECTION
7.02. Indemnities of Servicer
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SECTION
7.03. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer
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SECTION
7.04. Limitation on Liability of Servicer and
Others
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SECTION
7.05. CFSC Not To Resign as
Servicer
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ARTICLE VIII
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DEFAULT
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SECTION
8.01. Servicer Default
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SECTION
8.02. Appointment of Successor
Servicer
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SECTION
8.03. Notification to Noteholders and
Certificateholders
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SECTION
8.04. Waiver of Past Defaults
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ARTICLE IX
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TERMINATION
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SECTION
9.01. Optional Purchase of All Receivables; Trust
Termination
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ARTICLE X
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MISCELLANEOUS
PROVISIONS
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SECTION
10.01. Amendment
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SECTION
10.02. Protection of Title to
Trust
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-ii-
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SECTION
10.03. Notices
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SECTION
10.04. Assignment
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SECTION
10.05. Limitations on Rights of
Others
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SECTION
10.06. Severability
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SECTION
10.07. Separate Counterparts
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SECTION
10.08. Headings
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SECTION
10.09. Governing Law
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SECTION
10.10. Assignment to Indenture
Trustee
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SECTION
10.11. Nonpetition Covenants
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SECTION
10.12. Limitation of Liability of Owner Trustee and Indenture
Trustee
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SCHEDULE
A - Schedule of Receivables A-1
SCHEDULE
B - Location of Receivable Files B-1
SCHEDULE
C - Servicer Report C-1
SCHEDULE
D - Trustee Instructions D-1
-iii-
SALE
AND SERVICING AGREEMENT dated as of April 1, 2008, among CATERPILLAR FINANCIAL
ASSET TRUST 2008-A, a Delaware statutory trust, CATERPILLAR FINANCIAL FUNDING
CORPORATION, a Nevada corporation, and CATERPILLAR FINANCIAL SERVICES
CORPORATION, a Delaware corporation.
WHEREAS
the Issuing Entity (as defined below) desires to purchase a portfolio of
receivables arising in connection with (i) retail installment sale
contracts for the purchase of machinery or equipment and (ii) equipment finance
lease contracts for the lease of machinery or equipment, in each case acquired
or originated by CFSC (as defined below) in the ordinary course of its
business;
WHEREAS
the Depositor (as defined below) has purchased such portfolio of receivables
from CFSC and desires to sell such portfolio of receivables to the Issuing
Entity; and
WHEREAS
CFSC desires to service such receivables.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions. Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"Additional Servicing
Compensation" means, with respect to any Receivable, any late fees,
extension fees and other administrative fees or similar charges allowed by
applicable law with respect to such Receivable.
"Administration
Agreement" means the Administration Agreement, dated as of April 1, 2008,
among the Trust, the Depositor, CFSC, as administrator, and U.S. Bank National
Association, as indenture trustee, as the same may be amended, modified or
supplemented from time to time.
"Administration Fee"
means the fee payable to the Administrator pursuant to Section 3 of the
Administration Agreement.
"Administrator" means
the administrator under the Administration Agreement.
"Affiliate" has the
meaning specified in the Indenture.
"Agreement" means this
Sale and Servicing Agreement, as the same may be amended, modified or
supplemented from time to time.
"Amount Financed"
means with respect to a Receivable related to a Lease, the original Net
Investment with respect to such Lease, and with respect to a Receivable related
to an Installment Sales Contract, the sum of the amount advanced under the
Receivable toward the purchase price of the related Financed Equipment, plus any
related costs.
"APR" or "Annual Percentage
Rate" with respect to any Receivable related to an Installment Sales
Contract means the annual percentage rate of interest of such Receivable as set
forth on the Schedule of Receivables for such Receivable and with respect to any
Receivable related to a Lease, the Implicit Interest Rate.
"Basic Documents" has
the meaning specified in the Indenture.
"Business Day" means
any day other than a Saturday, a Sunday or a day on which banking institutions
or trust companies in New York, New York, Nashville, Tennessee, Las Vegas,
Nevada, Chicago, Illinois, St. Xxxx, Minnesota or Wilmington, Delaware are
authorized or obligated by law, regulation or executive order to remain
closed.
"Caterpillar" means
Caterpillar Inc., a Delaware corporation, and its successors.
"Certificate" has the
meaning specified in the Trust Agreement.
"Certificate Balance"
means, on the Closing Date, $33,387,349 and, thereafter, $33,387,349 reduced by
all amounts allocable to principal previously distributed to the
Certificateholders pursuant to Section 5.02(a) of the Trust
Agreement.
"Certificate Distribution
Account" has the meaning specified in the Trust Agreement.
"Certificateholders"
has the meaning specified in the Trust Agreement.
"Certificate Pool
Factor" means 1.0000000 as of the Closing Date, and as of the close of
business on any Distribution Date thereafter a seven-digit decimal figure equal
to the Certificate Balance as of such date (after giving effect to reductions of
the Certificate Balance on such date) divided by the Certificate Balance at the
Closing Date.
"CFSC" means
Caterpillar Financial Services Corporation, a Delaware corporation, and its
successors.
"Class" means the
Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes or
the Class A-3 Notes, as applicable.
"Class A-1 Note Final
Scheduled Distribution Date" means the Distribution Date occurring in
April 2009.
"Class A-1 Note Interest
Rate" has the meaning specified in the Indenture.
"Class A-1 Note Pool
Factor" means 1.0000000 as of the Closing Date, and as of the close of
business on any Distribution Date thereafter means a seven digit decimal figure
equal to the Outstanding Principal Amount of the Class A-1 Notes as of such
date (after giving effect to payments in reduction of the principal amount of
the Class A-1 Notes on such date) divided by the original Outstanding
Principal Amount of the Class A-1 Notes.
2
"Class A-1 Notes"
has the meaning specified in the Indenture.
"Class A-2 Note Final
Scheduled Distribution Date" means the Distribution Date occurring in
December 2010.
"Class A-2 Notes"
means the Class A-2a Notes and the Class A-2b Notes, collectively.
"Class A-2a Note
Interest Rate" has the meaning specified in the Indenture.
"Class A-2a Note Pool
Factor" means 1.0000000 as of the Closing Date and as of the close of
business on any Distribution Date thereafter means a seven digit decimal figure
equal to the Outstanding Principal Amount of the Class A-2a Notes as of
such date (after giving effect to payments in reduction of the principal amount
of the Class A-2a Notes on such date) divided by the original Outstanding
Principal Amount of the Class A-2a Notes.
"Class A-2b Note
Interest Rate" has the meaning specified in the Indenture.
"Class A-2b Note Pool
Factor" means 1.0000000 as of the Closing Date and as of the close of
business on any Distribution Date thereafter means a seven digit decimal figure
equal to the Outstanding Principal Amount of the Class A-2b Notes as of
such date (after giving effect to payments in reduction of the principal amount
of the Class A-2b Notes on such date) divided by the original Outstanding
Principal Amount of the Class A-2b Notes.
"Class A-3 Note Final
Scheduled Distribution Date" means the Distribution Date occurring in
April 2014.
"Class A-3 Notes"
has the meaning specified in the Indenture.
"Class A-3 Note Interest
Rate" has the meaning specified in the Indenture.
"Class A-3 Note Pool
Factor" means 1.0000000 as of the Closing Date and, as of the close of
business on any Distribution Date thereafter means a seven digit decimal figure
equal to the Outstanding Principal Amount of the Class A-3 Notes as of such
date (after giving effect to payments in reduction of the principal amount of
the Class A-3 Notes on such date) divided by the original Outstanding
Principal Amount of the Class A-3 Notes.
"Class of Notes" means
all Notes included in Class A-1 Notes, all Notes included in Class A-2
Notes or all Notes included in Class A-3 Notes, whichever is
appropriate.
"Closing Date" means
April 29, 2008.
"Collateral" has the
meaning specified in the Granting Clause of the Indenture.
"Collection Account"
means the account designated as such, established and maintained pursuant to
Section 5.01 (a)(i).
"Collection Period"
means, with respect to the first Distribution Date, the calendar month of April
2008 and, with respect to each subsequent Distribution Date, the immediately
preceding calendar month. Any amount stated "as of the close of
business on the last day of a Collection Period" shall give effect to the
following calculations as determined as of the end of the day on such last day:
(i) all applications of collections and (ii) all distributions to be made on the
following Distribution Date.
3
"Commission" means the
Securities and Exchange Commission, and its successors.
"Contract" means an
Installment Sales Contract or a Lease, as applicable, and shall include all
documents relating to an amendment or modification of such
Contract.
"Contract Balance" of
a Receivable, as of the close of business on the last day of a Collection Period
or as of the Cut-off Date, as applicable, means the Amount Financed minus the
sum of (i) that portion of all Scheduled Payments paid on or prior to such day
allocable to principal using the actuarial method, (ii) any payment of the
Purchase Amount with respect to such Receivable purchased by the Servicer or
repurchased by CFSC or the Depositor and allocable to principal and (iii) any
prepayment in full or any partial prepayments (including any Liquidation
Proceeds) applied to reduce the Contract Balance of such Receivable, in each
case plus accrued and unpaid interest. With respect to each Lease,
the Servicer shall allocate all Scheduled Payments thereon between "principal"
and "interest" based upon each such Lease's Implicit Interest Rate.
"Corporate Trust
Office" means the office of the Indenture Trustee at which at any
particular time its corporate trust business shall be administered, which office
at the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, 00000, Attention: Caterpillar Financial
Asset Trust 2008-A, except that for purposes of Section 3.02 of the Indenture,
such term shall mean the office or agency of the Indenture Trustee in the
Borough of Manhattan in the City of New York which office at the date hereof is
located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000; or at such
other address as the Indenture Trustee may designate from time to time by notice
to the Noteholders, the Servicer, the Owner Trustee and the Depositor, or the
principal corporate trust office of any successor Indenture Trustee (the address
of which the successor Indenture Trustee will notify the Noteholders, the
Servicer, the Owner Trustee and the Depositor); provided that for purposes of
Section 3.02 of the Indenture, the address of any such office shall be in the
Borough of Manhattan in the City of New York.
"Cross-Collateralized
Equipment" means, with respect to any Contract, an item of machinery or
equipment, other than the related Financed Equipment, which also secures an
Obligor's indebtedness or obligations under the respective Receivable in
addition to the related Financed Equipment.
"Cumulative Realized
Losses" means, with respect to any Collection Period, the percentage
equivalent of a fraction equal to all Realized Losses during the period since
the Cut-off Date through the end of such Collection Period divided by the
Initial Pool Balance.
"Cut-off Date" means
April 1, 2008.
"Dealer" means each
Caterpillar dealer who sold an item of Financed Equipment relating to a
Receivable.
"Dealer Receivable"
means a Receivable originated by a Dealer and acquired by CFSC from such
Dealer.
"Depositor" means
Caterpillar Financial Funding Corporation, a Nevada corporation, and its
successors in interest to the extent permitted hereunder.
"Determination Date"
means, with respect to any Distribution Date, the fifth Business Day prior to
such Distribution Date.
"Discount Factor"
means 7.29% per annum.
"Distribution Date"
means the 25th day of each calendar month or, if such day is not a Business Day,
the immediately following Business Day, commencing on May 27, 2008.
"Eligible Institution"
means (a) the corporate trust department of the Indenture Trustee, the Owner
Trustee, BNYM (Delaware), as long as it is paying agent under the Trust
Agreement or U.S. Bank National Association, so long as it is a paying agent
under the Indenture, or (b) a depository institution organized under the laws of
the United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank) (i)(A) which has either (1)
a long-term unsecured debt rating of "AAA" or better by Standard & Poor's
and "Aaa" or better by Moody's or (2) a short-term unsecured debt rating or a
certificate of deposit rating of "A-1+" by Standard & Poor's and "Prime-1"
or better by Moody's, or any other long-term, short-term or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC or (ii)(A) the parent of which has a long-term or short-term
unsecured debt rating acceptable to the Rating Agencies and (B) whose deposits
are insured by the FDIC. If so qualified, the Indenture Trustee, the
Owner Trustee, BNYM (Delaware) or U.S. Bank National Association may be
considered an Eligible Institution for the purposes of clause (b) of this
definition.
"Eligible Investments"
mean the following (other than any issued by CFSC, the holder of the
Certificates or any of their respective Affiliates):
(a) direct
obligations of, and obligations fully guaranteed as to timely payment by, the
United States of America;
(b)
demand
deposits, time deposits or certificates of deposit of any depository institution
incorporated under the laws of the United States of America or any state thereof
(or any domestic branch of a foreign bank) and subject to supervision and
examination by federal or state banking or depository institution authorities;
provided, however, that at the
time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other than
such depository institution) thereof shall have a credit rating from each Rating
Agency in the highest investment category granted thereby;
(c)
commercial
paper having, at the time of the investment or contractual commitment to invest
therein, a rating from each Rating Agency in the highest investment category
granted thereby;
5
(d)
investments
in money market funds having a rating from each Rating Agency in the highest
investment category granted thereby (including any such funds for which the
Indenture Trustee or the Owner Trustee or any of their respective Affiliates is
investment manager or advisor);
(e)
investments
in common trust funds having a rating from each Rating Agency in the highest
investment category granted thereby maintained and operated by Eligible
Institutions (including the Indenture Trustee or the Owner
Trustee);
(f)
bankers'
acceptances issued by any depository institution or trust company referred to in
clause (b) above;
(g)
repurchase
obligations with respect to any security that is a direct obligation of, or
fully guaranteed by, the United States of America or any agency or
instrumentality thereof the obligations of which are backed by the full faith
and credit of the United States of America, in either case entered into with (i)
a depository institution (acting as principal) described in clause (b) or (ii) a
depository institution the deposits of which are insured by FDIC;
or
(h)
any
other investment that is permitted by each of the Rating Agencies.
"Eligible Securities
Account" means either (a) a segregated account with an Eligible
Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as such
depository institution shall have a senior unsecured rating of at least
investment grade from each Rating Agency in one of its generic rating
categories.
"Exchange Act" means
the Securities Exchange Act of 1934, as amended.
"FDIC" means the
Federal Deposit Insurance Corporation, and its successors.
"Final Scheduled Distribution
Date" means any of the Class A-1 Note Final Scheduled Distribution
Date, the Class A-2 Note Final Scheduled Distribution Date or the
Class A-3 Note Final Scheduled Distribution Date.
"Financed Equipment"
means an item of machinery or equipment, together with all accessions thereto,
which was purchased or refinanced, in the case of an Installment Sales Contract
or leased, in the case of a Lease, by an Obligor pursuant to the terms of the
related Contract, and in either case which secures such related Obligor's
indebtedness or obligations under the respective Receivable.
"First Priority Principal
Distribution Amount" means, with respect to any Distribution Date, an
amount, not less than zero, equal to the excess, if any, of (i) the Outstanding
Principal Amount of all Notes as of the preceding Distribution Date (after
giving effect to any principal payments made on the Notes on such preceding
Distribution Date) over (ii) the Note Value at the end of the Collection Period
preceding such Distribution Date; provided, however, that the
First Priority Principal Distribution Amount shall not be less than the
aggregate of (i) on and after the Class A-1 Note Final Scheduled
Distribution Date, the amount that is necessary to reduce the Outstanding
Principal Amount of the Class A-1 Notes to zero, (ii) on and after the
Class A-2 Note Final Scheduled Distribution Date, the amount that is
necessary to reduce the Outstanding Principal Amount of the Class A-2 Notes
to zero and (iii) on and after the Class A-3 Note Final Scheduled
Distribution Date, the amount that is necessary to reduce the Outstanding
Principal Amount of the Class A-3 Notes to zero.
6
"Governmental
Authority" means the United States of America, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
"Holder" or "Noteholder" has the
meaning specified in the Indenture.
"Implicit Interest
Rate" means with respect to any Receivable related to a Lease, the rate
set forth with respect to such Receivable on the Schedule of
Receivables.
"Indenture" means the
Indenture, dated as of April 1, 2008, between the Issuing Entity and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Indenture Trustee"
means U.S. Bank National Association, a national banking association, in its
capacity as indenture trustee under the Indenture, its successors in interest
and any successor indenture trustee under the Indenture.
"Initial Note Value"
means the Note Value as of the Cut-off Date, which is $642,058,349.
"Initial Pool Balance"
means the Pool Balance as of the Cut-off Date, which is
$648,365,308.
"Initial Swap
Counterparty" means, Barclays Bank PLC, as Party A under the Initial
Interest Rate Swap Agreement.
"Initial Interest Rate Swap
Agreement" means the ISDA Master Agreement (1992 Multicurrency-Cross
Border), dated as of the Closing Date, between the Initial Swap Counterparty and
the Issuing Entity, the Schedule and the Credit Support Annex thereto, each
dated as of the Closing Date and, the Confirmation thereto with respect to the
Class A-2b Notes, dated as of the Closing Date, and entered into pursuant to
such ISDA Master Agreement, as the same may be amended or supplemented from time
to time in accordance with the terms thereof.
"Insolvency Event"
means, with respect to a specified Person, (i) the entry of a decree or order
for relief by a court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any substantial
part of its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or (ii) the commencement by such Person of a
voluntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such Person to
the entry of an order for relief in an involuntary case under any such law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the
foregoing.
7
"Installment Sales
Contract" means, with respect to any applicable Receivable, the related
fixed rate retail installment sale contract for the purchase of machinery or
equipment.
"Interest Rate Swap
Agreement" means the Initial Interest Rate Swap Agreement and/or any
Replacement Interest Rate Swap Agreement.
"Investment Earnings"
means, with respect to any Distribution Date, the investment earnings (net of
losses and investment expenses) on amounts on deposit in the Trust
Accounts.
"Issuing Entity" means
Caterpillar Financial Asset Trust 2008-A, a Delaware statutory trust, and its
successors.
"Lease" means, with
respect to any applicable Receivable, the related equipment finance lease
contract.
"Lien" means a
security interest, lien, charge, pledge, equity or encumbrance of any kind with
respect to any Receivable other than mechanics' liens and any liens which attach
to such Receivable by operation of law as a result of any act or omission by the
related Obligor.
"Liquidated
Receivable" means any Receivable which has been liquidated by the
Servicer through the sale or other disposition of the related Financed
Equipment.
"Liquidation Proceeds"
means, with respect to any Liquidated Receivable, the monies collected in
respect thereof, from whatever source (including the proceeds of insurance
policies with respect to the related Financed Equipment or Obligor on a
Liquidated Receivable), net of the sum of any amounts expended by the Servicer
in connection with such liquidation and any amounts required by law or the
applicable Contract to be remitted to the Obligor on such Liquidated Receivable,
excluding (i) Recoveries and (ii) monies collected in respect of any Liquidated
Receivable in excess of the Contract Balance therefor.
"Moody's" means
Xxxxx'x Investors Service, Inc., or its successor.
"Net APR" means, with
respect to any Receivable, the APR therefor less the Servicing Fee
Rate.
"Net Excess Spread"
means, with respect to any Distribution Date on or prior to the Distribution
Date on which the amount on deposit in the Reserve Account equals the Specified
Reserve Account Balance, the Total Available Amount reduced by (i) the Servicing
Fee and all unpaid Servicing Fees from prior Collection Periods, (ii) the
Administration Fee and all unpaid Administration Fees from prior Collection
Periods, (iii) any Net Swap Payment, (iv) any Senior Swap Termination Payment,
(v) the Noteholders' Interest Distributable Amount and (vi) the difference
between (A) the Note Value at the end of the second preceding Collection Period,
or in the case of the initial Distribution Date, the Initial Note Value, and (B)
the Note Value at the end of the preceding Collection Period.
8
"Net Investment" with
respect to a Lease, means the present value of the sum of (i) Scheduled
Payments due thereunder and (ii) the residual payment amount at the end of the
Lease term, discounted at the Implicit Interest Rate for such
Lease.
"Net Swap Payment"
means for the Interest Rate Swap Agreement, the net amount owed, if any, by the
Issuing Entity to the Swap Counterparty on any Distribution Date, including any
prior, unpaid Net Swap Payments and any interest accrued thereon, under the
Interest Rate Swap Agreement; provided, that "Net Swap Payment" does not include
any Swap Termination Payments.
"Net Swap Receipt"
means, for the Interest Rate Swap Agreement, the net amount, if any, owed by the
Swap Counterparty to the Issuing Entity on any Distribution Date (excluding any
Swap Termination Payments) which shall be deposited into the Collection
Account.
"Note Register" and
"Note
Registrar" have the meanings specified in the Indenture.
"Note Value" means, at
any time, the present value of the unpaid Scheduled Payments on the Receivables
(including all lease residual payments on the Leases), discounted on a monthly
basis at the Discount Factor. For purposes of calculating Note Value
for any (i) delinquent Receivable that has not had the Financed Equipment
by which it is secured repossessed and which is not a Liquidated Receivable or a
180-Day Receivable, the amount of any delinquent payments will be assumed to be
received in the next Collection Period and all other payments which have not yet
become due will be assumed to be received as originally scheduled,
(ii) Receivable that has had the Financed Equipment by which it is secured
repossessed but which has not yet become a Liquidated Receivable or a 180-Day
Receivable, the outstanding Contract Balance of that Receivable will be assumed
to be received in the next Collection Period and it will be assumed that no
other payments will be received on that Receivable, (iii) Liquidated
Receivable, it will be assumed that no payments will be received on that
Receivable and (iv) 180-Day Receivable, the aggregate amount of unpaid
Scheduled Payments of such 180-Day Receivable will be reduced by the Write Down
Amount, if any, calculated during the preceding Collection Period and all
remaining Scheduled Payments will be assumed to be received as originally
scheduled.
"Noteholders" has the
meaning specified in the Indenture.
"Noteholders' Interest
Carryover Shortfall" means, with respect to any Distribution Date, the
sum of (i) the excess, if any, of (A) the sum of (1) the
Noteholders' Monthly Interest Distributable Amount for the preceding
Distribution Date and (2) any outstanding Noteholders' Interest Carryover
Shortfall on such preceding Distribution Date, over (B) the amount in
respect of interest that is actually distributed to the Noteholders on such
preceding Distribution Date, and (ii) interest on the amount of interest
due but not paid to Noteholders on the preceding Distribution Date, to the
extent permitted by law, at the Class A-1 Note Interest Rate, the
Class A-2a Note Interest Rate, the Class A-2b Note Interest Rate and
the Class A-3 Note Interest Rate, as applicable, from and including such
preceding Distribution Date (or, in the case of the initial Distribution Date,
from and including the Closing Date) to, but excluding, the current Distribution
Date.
9
"Noteholders' Interest
Distributable Amount" means, with respect to any Distribution Date, the
sum of (i) the Noteholders' Monthly Interest Distributable Amount for such
Distribution Date and (ii) the Noteholders' Interest Carryover Shortfall for
such Distribution Date.
"Noteholders' Monthly
Interest Distributable Amount" means, with respect to any Distribution
Date, an amount equal to the aggregate amount of interest accrued on the
Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes and
the Class A-3 Notes at the Class A-1 Note Interest Rate, the
Class A-2a Note Interest Rate and the Class A-2b Note Interest Rate,
the Class A-3 Note Interest Rate, respectively, with respect to the
Class A-1 Notes and the Class A-2b Notes, from and including the preceding
Distribution Date (or, in the case of the initial Distribution Date, from and
including the Closing Date), to but excluding such Distribution Date (based on a
360-day year and the actual number of days elapsed), and, with respect to the
Class A-2a Notes and the Class A-3 Notes, from and including the 25th day of
the month preceding such Distribution Date (or, in the case of the initial
Distribution Date, from and including the Closing Date), to but excluding the
25th
day of the month of such Distribution Date (in each case based on a 360-day year
of twelve 30-day months).
"Notes" means the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes,
collectively.
"Obligor" on a
Receivable means (i) the purchaser, co-purchasers or lessees of the Financed
Equipment and (ii) any other Person, including the related Dealer, who owes
payments under the Receivable.
"Officers'
Certificate" means a certificate signed by (i) the chairman of the board,
the president, the vice chairman of the board, the executive vice president, any
vice president, a treasurer or any assistant treasurer and (ii) the controller
(or chief accounting officer) or a secretary or assistant secretary, in each
case of the Depositor or the Servicer, as appropriate.
"180-Day Receivable"
means, as of the last day of any Collection Period, any Receivable as to which
(i) a Scheduled Payment is more than 180 days past its due date, as specified in
the related Contract, and (ii) the Servicer has determined its estimated value
in accordance with its servicing standards.
"Opinion of Counsel"
means one or more written opinions of counsel who may be an employee of or
counsel to the Depositor, CFSC or the Servicer, which counsel shall be
acceptable to the Indenture Trustee, the Owner Trustee or the Rating Agencies,
as applicable.
"Original Contract"
means with respect to each Receivable, a related Contract that satisfies the
following conditions:
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(a) (i) Such
Contract states as part of its terms:
"Although
multiple counterparts of this document may be signed, only the counterpart
accepted, acknowledged and certified by CFSC on the signature page thereof as
the original will constitute original chattel paper."; and
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(ii)
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CFSC
has accepted, acknowledged and certified one originally executed copy or
version of such Contract (and no other) by stamping on the signature page
thereon the following legend and executing the same where indicated (which
execution will be effected in red by use of a stamp containing a replica
of an authorized signatory of
CFSC):
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ACCEPTED,
ACKNOWLEDGED AND CERTIFIED BY CATERPILLAR FINANCIAL SERVICES CORPORATION AS THE
ORIGINAL.
By: ______________________________________
Title: _____________________________________;
or
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(b)
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Such
Contract is in "snap-set" or other form for which only one original may be
produced.
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(c)
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The
Contract is a Dealer Receivable and the Dealer has represented and
warranted to CFSC that such Contract is the original and only contract
executed in connection with the related Financed
Equipment.
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"Outstanding" has the
meaning specified in the Indenture.
"Outstanding Principal
Amount" means the aggregate principal amount of all Notes, or a Class of
Notes, as applicable, Outstanding at the date of determination.
"Over 60-day Delinquency
Percentage" means, for any Distribution Date, the percentage equivalent
of a fraction equal to the aggregate Contract Balance of all Receivables for
which a Scheduled Payment was more than 60 days past its related due date (as
specified in the related Contract) as of the end of the preceding Collection
Period, divided by the Pool Balance on such Distribution Date.
"Owner Trust Estate"
has the meaning specified in the Trust Agreement.
"Owner Trustee" means
BNYM (Delaware), a Delaware banking corporation, in its capacity as owner
trustee under the Trust Agreement, its successors in interest and any successor
Owner Trustee under the Trust Agreement.
"Pool Balance" means,
at any time, the aggregate of the Contract Balances of the Receivables at the
end of the preceding Collection Period, after giving effect to (i) all payments
received from Obligors and Purchase Amounts remitted by CFSC, the Depositor or
the Servicer, as the case may be, for such Collection Period, (ii) Liquidation
Proceeds received with respect to any Liquidated Receivables received during
such Collection Period and (iii) all Realized Losses on Liquidated Receivables
and 180 Day Receivables for that Collection Period.
11
"Pool Factor" means
1.0000000 as of the Cut-off Date and, as of the close of business on the last
day of a Collection Period thereafter means a seven digit decimal figure equal
to the Pool Balance as of such date divided by the Initial Pool
Balance.
"Principal Distribution
Account" means the administrative subaccount within the Collection
Account established by the Indenture Trustee pursuant to Section
5.01(a)(i).
"Principal Distribution
Amount" means, with respect to any Distribution Date, the sum of the
First Priority Principal Distribution Amount and the Regular Principal
Distribution Amount for such Distribution Date.
"Purchase Agreement"
means the Purchase Agreement, dated as of April 1, 2008, between the Depositor
and CFSC, as the same may be amended, modified or supplemented from time to
time.
"Purchase Amount"
means, with respect to an Installment Sales Contract or a Lease, the Contract
Balance calculated as of the close of business on the last day of a Collection
Period, required to prepay in full the respective Receivable under the terms
thereof, in each case plus interest at the related APR to the end of the month
during which the Installment Sales Contract or Lease became a Purchased
Receivable.
"Purchased Receivable"
means a Receivable (i) purchased as of the close of business on the last day of
a Collection Period by the Servicer pursuant to Section 4.07, (ii)
repurchased as of the last day of a Collection Period by the Depositor or CSFC
pursuant to Section
3.02, or (iii) purchased by the Servicer pursuant to Section
9.01.
"Rating Agencies"
means Xxxxx'x and Standard & Poor's. If no such organization or
successor is in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency
Condition" means, with respect to any action, that each Rating Agency
shall have been given 10 days' (or such shorter period as is acceptable to each
Rating Agency) prior notice thereof and that each Rating Agency shall have
notified the Depositor, the Servicer, the Owner Trustee and the Indenture
Trustee in writing that such action will not result in a reduction or withdrawal
of the then current rating of any Class of Notes.
"Realized Loss" means,
for any Distribution Date, the sum of (i) with respect to any Receivable that
became a Liquidated Receivable during the related Collection Period, the excess,
if any, of (a) the Contract Balance of such Liquidated Receivable minus the
Write Down Amount for such Receivable, if any, over (b) the Liquidation Proceeds
for that Liquidated Receivable for that Collection Period to the extent
allocable to principal and (ii) the Write Down Amount, if any, calculated during
the related Collection Period, with respect to each 180-Day
Receivable.
"Receivable" means any
Contract listed on the Schedule of Receivables.
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"Receivable File"
means (a) with respect to each Receivable (other than a Dealer Receivable), the
Original Contract related to such Receivable and (b) with respect to each Dealer
Receivable, the Original Contract related to such Receivable and any documents
used to assign such Dealer Receivable and the related Dealer's security interest
in the related Transaction Equipment to CFSC.
"Recoveries" means,
with respect to any Liquidated Receivable, (a) monies collected in respect
thereof, from whatever source, but after (i) such Receivable became a Liquidated
Receivable and (ii) the proceeds from the sale or other disposition of the
related Financed Equipment have been received by the Servicer for deposit in the
Collection Account, net of (b) the sum of any amounts expended by the Servicer
for the account of the Obligor and any amounts required by law or the applicable
Contract to be remitted to the Obligor.
"Regular Principal
Distribution Amount" means, with respect to any Distribution Date, an
amount, not less than zero, equal to (i) the excess of (A) the sum of the
Outstanding Principal Amount of all Notes and the Certificate Balance as of the
preceding Distribution Date (in each case, after giving effect to any principal
payments made on the Notes and Certificates on such preceding Distribution Date)
over (B) the Note Value at the end of the Collection Period preceding such
Distribution Date, minus (ii) the First Priority Principal Distribution Amount
for such Distribution Date.
"Regulation AB" means
Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time to
time.
"Replacement Swap
Counterparty" means, any Swap Counterparty under a Replacement Interest
Rate Swap Agreement that satisfies the conditions set forth in the Interest Rate
Swap Agreement.
"Replacement Interest Rate
Swap Agreement" means any ISDA Master Agreement, dated after the Closing
Date, between a Swap Counterparty that on the date of such Replacement Interest
Rate Swap Agreement is an "Eligible Replacement" as defined in the Initial
Interest Rate Swap Agreement and the Issuing Entity, the Schedule and Credit
Support Annex thereto, each dated after the Closing Date, and the Confirmations
thereto, each dated after the Closing Date, and entered into pursuant to such
ISDA Master Agreement, and pursuant to the conditions set forth in the Initial
Interest Rate Swap Agreement in connection with the termination of the Initial
Interest Rate Swap Agreement, as the same may be amended or supplemented from
time to time in accordance with the terms thereof.
"Reserve Account"
means the account designated as such, established and maintained pursuant to
Section
5.01(a)(ii).
"Reserve Account Initial
Deposit" means the initial deposit to the Reserve Account by the Issuing
Entity on the Closing Date of $8,025,729.
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"Schedule of
Receivables" means the schedule of Receivables (which schedule may be in
the form of microfiche) attached as Schedule A.
"Scheduled Payment" on
a Receivable means the scheduled periodic payment required to be made by the
Obligor.
"Securities" means,
collectively, the Notes and the Certificate.
"Securities Act" means
the Securities Act of 1933, as amended.
"Securities
Intermediary" has the meaning specified in Section 5.01(c)(ii)(B) and
initially means U.S. Bank National Association.
"Senior Swap Termination
Payment" means any Swap Termination Payment owed by the Issuing Entity to
the Swap Counterparty under the Interest Rate Swap Agreement other than a
Subordinated Swap Termination Payment.
"Servicer" means CFSC,
as the servicer of the Receivables, and each successor to CFSC (in the same
capacity) pursuant to Section 7.03 or 8.02.
"Servicer Default"
means an event specified in Section
8.01.
"Servicer Report"
means an Officers' Certificate of the Servicer delivered pursuant to Section 4.09,
substantially in the form of Schedule C or in such
other form that is acceptable to the Indenture Trustee, the Owner Trustee and
the Servicer.
"Servicing Fee" means
the fee payable to the Servicer for services rendered during the respective
Collection Period, determined pursuant to Section
4.08.
"Servicing Fee Rate"
means 1.0% per annum.
"Specified Reserve Account
Balance" means, with respect to any Distribution Date, an amount equal to
the lesser of (i) the Outstanding Principal Amount of the Notes and
(ii) 1.65% of the Initial Note Value; provided, however, that the
percentage specified in clause (ii) of this definition of Specified Reserve
Account Balance may be reduced as follows:
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·
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if
on the Distribution Date in October 2009, (i) Cumulative Realized
Losses for the related Collection Period are less than 0.65% and
(ii) the Three Month Rolling Over 60-Day Delinquency Percentage
for such Distribution Date is less than 5.00%, the percentage specified in
clause (ii) of this definition of Specified Reserve Account Balance will
be 1.325% for the October 2009 Distribution Date and each subsequent
Distribution Date, subject to any further reduction in accordance with the
terms of this definition;
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·
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if
on the Distribution Date in April 2010, (i) the percentage then specified
in clause (ii) of this definition of Specified Reserve Account Balance is
1.65%, (ii) Cumulative Realized Losses for the related Collection Period
are less than 1.00% and (iii) the Three Month Rolling Over 60-Day
Delinquency Percentage for such Distribution Date is less than 6.00%, the
percentage then specified in clause (ii) of this definition of Specified
Reserve Account Balance will be reduced by 0.65% for the April 2010
Distribution Date and each subsequent Distribution
Date;
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·
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if
on the Distribution Date in April 2010, (i) the percentage then specified
in clause (ii) of this definition of Specified Reserve Account Balance is
1.325%, (ii) Cumulative Realized Losses for the related Collection Period
are less than 1.00% and (iii) the Three Month Rolling Over 60-Day
Delinquency Percentage for such Distribution Date is less than 6.00%, the
percentage then specified in clause (ii) of this definition of Specified
Reserve Account Balance will be reduced by 0.325% for the April 2010
Distribution Date and each subsequent Distribution Date;
and
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·
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if
on the Distribution Date in October 2010, (i) the percentage then
specified in clause (ii) of this definition of Specified Reserve Account
Balance is 1.325% or greater, (ii) Cumulative Realized Losses for the
related Collection Period are less than 1.20% and (iii) the Three Month
Rolling Over 60-Day Delinquency Percentage for such Distribution Date is
less than 7.00%, the percentage then specified in clause (ii) of this
definition of Specified Reserve Account Balance will be reduced by 0.325%
for the October 2010 Distribution Date and each subsequent Distribution
Date.
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provided, further, that on and
after the date on which the Depositor eliminates the Reserve Account in
accordance with the provisions of Section 5.06(e), the Specified Reserve Account
Balance shall be zero.
"Standard &
Poor's" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successors.
"Subordinated Swap
Termination Payment" means any Swap Termination Payment owed by the
Issuing Entity to the Swap Counterparty under the Interest Rate Swap Agreement
on any Distribution Date relating to an early termination of a Transaction (as
defined therein) under the Interest Rate Swap Agreement following a Swap Event
of Default or a Swap Termination Event arising under the Interest Rate Swap
Agreement where the Swap Counterparty is the "Defaulting Party" or sole
"Affected Party" (other than any such termination event as a result of
"Illegality" or "Tax Event") (the terms "Defaulting Party," "Affected Party,"
"Illegality" and "Tax Event" each has the meaning set forth in the Interest Rate
Swap Agreement).
"Swap Counterparty"
means (i) the Initial Swap Counterparty and (ii) a Person that is not an
Affiliate of the Issuing Entity, as swap counterparty under the Interest Rate
Swap Agreement, or any successor or replacement swap counterparty thereunder
from time to time.
"Swap Termination
Payment" means any payment due to the Swap Counterparty by the Issuing
Entity or to the Issuing Entity by the Swap Counterparty, including interest
that may accrue thereon, under the Interest Rate Swap Agreement due to a
termination of a Transaction (as defined therein) under the Interest Rate Swap
Agreement due to a Swap Event of Default or a Swap Termination
Event.
"Three Month Rolling Over
60-Day Delinquency Percentage" means, for any Distribution Date, the
average of the Over 60-day Delinquency Percentages for that Distribution Date
and the two immediately preceding Distribution Dates.
15
"Total Available
Amount" means, for each Distribution Date, the sum of the aggregate
collections in respect of Receivables (including any Liquidation Proceeds, any
Purchase Amounts paid by the Depositor, CFSC or the Servicer and any amounts
received from Dealers with respect to Receivables) received during the related
Collection Period, Investment Earnings on the Trust Accounts during such
Collection Period and any Net Swap Receipt for such Distribution Date but shall
not include any payments or proceeds (including any Liquidation Proceeds and any
amounts received from Dealers with respect to Receivables) of (i) any
Receivables the Purchase Amount of which has been included in the Total
Available Amount in a prior Collection Period, (ii) any Liquidated Receivable
after and to the extent of the reassignment of such Liquidated Receivable by the
Trust to the Depositor in accordance with Section 4.02 and (iii) any Additional
Servicing Compensation.
"Total Distribution
Amount" means, with respect to any Distribution Date, the sum of
(i) the Total Available Amount for such Distribution Date and (ii) the
amount, if any withdrawn from the Reserve Account and deposited into the
Collection Account on such Distribution Date pursuant to Section 5.06(b) on such
Distribution Date.
"Total Required
Payment" means, for each Distribution Date, the amounts payable pursuant
to Section 5.05(b)(i) through 5.05(b)(v).
"Transaction
Equipment" means, collectively, the Financed Equipment and, if
applicable, the Cross-Collateralized Equipment.
"Transfer Date" means,
with respect to any Distribution Date, the Business Day preceding such
Distribution Date.
"Trust" means the
Issuing Entity.
"Trust Account
Property" means the Trust Accounts, all investment property, instruments,
money and other property credited to or on deposit in any Trust Account from
time to time, including the Reserve Account Initial Deposit, and all proceeds of
the foregoing.
"Trust Accounts" has
the meaning specified in Section
5.01(b).
"Trust Agreement"
means the Amended and Restated Trust Agreement, dated as of April 29, 2008,
between the Depositor and the Owner Trustee, as the same may be amended,
modified or supplemented from time to time.
"Trust Officer" means,
in the case of (a) the Indenture Trustee, any officer within the Corporate Trust
Office of the Indenture Trustee, including any Vice President, Assistant Vice
President, Trust Officer, Secretary, Assistant Secretary or any other officer of
the Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject, and (b)
the Owner Trustee, any officer in the Corporate Trustee Administration
Department of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement and the Basic Documents on behalf of the
Owner Trustee.
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"Write Down Amount"
means, for any 180-Day Receivable, the excess of (i) the Contract Balance of
such 180-Day Receivable as of the last day of the Collection Period during which
a Scheduled Payment on such Receivable became more than 180 days past its due
date, as specified in the related Contract, over (ii) the estimated value of the
Receivable, as determined by the Servicer in accordance with its servicing
standards, to the extent allocable to principal in the same manner as a payment
in such amount would be.
SECTION 1.02.
Other Definitional
Provisions.
(a)
Capitalized
terms used herein and not otherwise defined herein have the meanings assigned to
them in the Indenture.
(b) All
terms defined in this Agreement shall have the meanings contained herein when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c)
As
used in this Agreement and in any document made or delivered pursuant hereto,
accounting terms not defined in this Agreement or in any such other document,
and accounting terms partly defined in this Agreement or in any such other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such other document shall control.
(d)
The
words "hereof," "herein," "hereunder," and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section, Schedule and Exhibit references
contained in this Agreement are references to Sections, Schedules and Exhibits
in or to this Agreement unless otherwise specified; the term "including" shall
mean "including without limitation"; and the term "or" is not
exclusive. Terms used herein that are defined in the New York UCC and
not otherwise defined herein shall have the meanings set forth in the New York
UCC, unless the contract requires otherwise.
(e)
The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
ARTICLE
II
CONVEYANCE
OF RECEIVABLES
SECTION
2.01. Conveyance of
Receivables. In consideration of the Issuing Entity's delivery
to or upon the order of the Depositor of (i) Class A-1 Notes with an
aggregate Outstanding Principal Amount of $182,000,000, (ii) Class A-2a
Notes with an aggregate Outstanding Principal Amount of $105,000,000, (iii)
Class A-2b Notes with an aggregate Outstanding Principal Amount of
$122,000,000, (iv) Class A-3 Notes with an aggregate Outstanding Principal
Amount of $199,671,000 and (v) the Certificates with a Certificate Balance
of $33,387,349, the Depositor does hereby sell, transfer, assign, set over and
otherwise convey to the Issuing Entity, without recourse (subject to the
obligations herein), all right, title and interest, whether now owned or
hereafter acquired, of the Depositor in and to the following:
17
(a)
the
Receivables, and all monies (including accrued interest) due thereunder on or
after the Cut-off Date;
(b)
the Trust
Account Property;
(c)
the
security interests in the Transaction Equipment granted by Obligors pursuant to
the Receivables, the Transaction Equipment, and all Liquidation
Proceeds;
(d) all
proceeds of repossessed or returned Transaction Equipment;
(e) all
proceeds with respect to the Receivables from claims on any physical damage,
credit life, liability or disability insurance policies covering Financed
Equipment or Obligors, as the case may be;
(f) the
Purchase Agreement, including the right of the Depositor to cause CFSC to
repurchase Receivables from the Depositor as provided therein;
(g) all
proceeds from recourse to, or other payments by, Dealers on
Receivables;
(h) cash
in the amount of the Reserve Account Initial Deposit; and
(i)
the proceeds of any and all of the foregoing.
It
is the express intent of the parties hereto that the conveyance of the
Receivables and the other property described above by the Depositor to the
Issuing Entity as provided in this Agreement be, and be construed as, a sale of
the Receivables and the other property described above by the Depositor to the
Issuing Entity. It is, further, not the intention of the parties that
such conveyance be deemed the grant of a security interest in the Receivables or
the other property described above by the Depositor to the Issuing Entity to
secure a debt or other obligation of the Depositor. However, in the
event, notwithstanding the intent of the parties, the Receivables or the other
property described above are held to be property of the Depositor, or if for any
reason this Agreement is held or deemed to create a security interest in the
Receivables or the other property described above then, (a) this Agreement
shall be a security agreement within the meaning of Article 9 of the New York
UCC and (b) the Depositor hereby grants to the Issuing Entity a security
interest in all of the Depositor's right, title, and interest, whether now owned
or hereafter acquired, in and to the property described in clauses (a) through
(i) above, as security for the obligations of the Depositor
hereunder. In connection herewith, the Issuing Entity (or its
assignee) shall have all of the rights and remedies of a secured party under the
UCC.
Any
assignment of the interest of the Issuing Entity pursuant to this Section 2.01 shall
also be an assignment of the security interest created hereby. Each
of the Depositor and the Issuing Entity shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement creates a security interest in the Receivables, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of the
Agreement.
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SECTION 2.02.
Closing.
The
conveyance of the Receivables and the other property described in Section 2.01
shall take place on the Closing Date, simultaneously with the closing of the
transactions contemplated by the Purchase Agreement, the underwriting agreement
relating to the Notes and the other Basic Documents. Upon the
delivery to or upon the order of the Depositor of the Notes and the Certificate,
the ownership of each Receivable and the contents of the related Receivable File
is vested in the Issuing Entity, subject only to the lien of the
Indenture.
SECTION 2.03.
Books and
Records.
The
transfer of each Receivable shall be reflected on the Depositor's balance sheets
and other financial statements prepared in accordance with generally accepted
accounting principles as a transfer of assets by the Depositor to the Issuing
Entity. The Depositor shall be responsible for maintaining, and shall
maintain, a complete and accurate set of books and records and computer files
for each Receivable which shall be clearly marked to reflect the ownership of
each Receivable by the Issuing Entity.
ARTICLE
III
THE
RECEIVABLES
SECTION 3.01.
Representations and
Warranties of Depositor. The Depositor hereby makes the
following representations and warranties as to the Receivables on which the
Issuing Entity is deemed to have relied in acquiring the
Receivables. Such representations and warranties speak as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Receivables to the Issuing Entity and the grant of a
security interest therein to the Indenture Trustee pursuant to the
Indenture.
(a) Title. It
is the intention of the Depositor that the transfer and assignment herein
contemplated constitute a sale of the Receivables from the Depositor to the
Issuing Entity and that the beneficial interest in and title to such Receivables
not be part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Depositor under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the Depositor to
any Person other than the Issuing Entity. Immediately prior to the
transfer and assignment herein contemplated, the Depositor owns and has good and
marketable title to the Receivables free and clear of any Lien, claim or
encumbrance of any Person and, immediately upon the transfer thereof, the
Issuing Entity shall have good and marketable title to each such Receivable,
free and clear of all Liens and rights of others; and the transfer has been
perfected under the UCC.
(b)
Priority. Other
than the security interest granted to the Issuing Entity pursuant to this
Agreement, the Depositor has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Receivables. The
Depositor has not authorized the filing of and is not aware of any financing
statement against the Depositor that includes a description of collateral
covering the Receivables other than any financing statement relating to the
security interest granted to the Issuing Entity hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor. None of the Contracts that constitute
or evidence the Receivables has any xxxx or notation indicating that it has been
pledged, assigned or otherwise conveyed by the Depositor to any Person other
than the Issuing Entity or the Indenture Trustee.
19
(c)
Security
Interest. This Agreement creates a valid and continuing
security interest (as defined in the UCC) in the Receivables and the proceeds
thereof in favor of the Issuing Entity, which security interest is prior to all
other Liens, and is enforceable as such against creditors of and purchasers from
the Depositor.
(d) Characterization
of Receivables. The Receivables constitute "tangible chattel
paper" within the meaning of the UCC.
(e)
All
Actions Taken. On the Closing Date all original executed
copies of each Contract that constitute or evidence the Receivables shall be
deemed to have been delivered to the Servicer, in its capacity as custodian, for
all purposes hereunder. The Depositor has caused or will have caused,
within 10 days of the Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdiction under
applicable law in order to perfect the security interest in the Receivables
granted to the Issuing Entity hereunder. All actions necessary in any
jurisdiction to be taken to give (i) the Issuing Entity a first priority
perfected ownership or security interest in the Receivables (exclusive of
Receivables for which a governmental entity is the Obligor) and (ii) the
Indenture Trustee a first priority perfected security interest therein (including
UCC filings with the Nevada Secretary of State)
have been taken or will be taken within 10 days of the Closing
Date.
(f)
Possession
of Receivable Files. All of the Receivable Files have been or
will be delivered to the Servicer as custodian on or prior to the Closing
Date.
(g)
Perfection
of Security Interest in Financed Equipment. The Depositor has
taken all steps necessary to perfect its security interest against the Obligors
in the property securing the Contracts.
(h)
No
Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Depositor of this Agreement
or any other Basic Document, the performance by the Depositor of the
transactions contemplated by this Agreement or any other Basic Document and the
fulfillment by the Depositor of the terms hereof or thereof, have been obtained
or have been completed and are in full force and effect (other than approvals,
authorizations, consents, orders or other actions which if not obtained or
completed or in full force and effect would not have a material adverse effect
on the Depositor or the Issuing Entity or upon the collectability of any
Receivable or upon the ability of the Depositor to perform its obligations under
this Agreement).
20
SECTION
3.02. Repurchase
by Depositor or CFSC Upon Breach.
(a)
The
Depositor, the Servicer or the Owner Trustee, as the case may be, shall inform
the other parties to this Agreement, CFSC and the Indenture Trustee promptly, in
writing, upon the discovery of any breach of the Depositor's representations and
warranties made pursuant to Section
3.01 or any breach of CFSC's representations and warranties made pursuant
to Section 3.02(b) of the Purchase Agreement. Unless any such breach
shall have been cured by the last day of the second month following the month of
the discovery thereof by the Depositor or receipt by the Depositor of written
notice from the Owner Trustee or the Servicer of such breach, the Depositor
shall be obligated, and, if necessary, the Depositor or the Owner Trustee shall
enforce the obligation of CFSC, if any, under Section 6.02(a)(i) of the Purchase
Agreement, to repurchase any Receivable materially and adversely affected by any
such breach as of such last day (or, at the Depositor's option, as of the last
day of the first month following the month of the
discovery).
(b)
In
consideration of the repurchase of the Receivable, the Depositor shall remit the
Purchase Amount with respect to such Receivable in the manner specified in Section
5.04; provided,
however,
that the obligation of the Depositor to repurchase any Receivable arising solely
as a result of a breach of CFSC's representations and warranties pursuant to
Section 3.02(b) of the Purchase Agreement is subject to the receipt by the
Depositor of the Purchase Amount from CFSC. Subject to the provisions
of Section
6.02, the sole remedy of the Issuing Entity, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of representations and warranties pursuant to Section
3.01, Section 3.02(b) of the Purchase Agreement and the agreement
contained in this Section shall be to require the Depositor to repurchase
Receivables pursuant to this Section, subject to the conditions contained
herein, or to enforce CFSC's obligation, if any, to the Depositor to repurchase
such Receivables pursuant to the Purchase Agreement. The Owner
Trustee shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable pursuant
to this Section.
SECTION
3.03. Custody
of Receivable Files. To assure uniform quality in servicing
the Receivables and to reduce administrative costs, the Depositor and the
Issuing Entity, as their interests may appear, hereby revocably appoint the
Servicer, and the Servicer hereby accepts such appointment, to act for the
benefit of the Issuing Entity and the Indenture Trustee as custodian of the
documents described in the definition of Receivable File, which are hereby
constructively delivered to the Indenture Trustee, as pledgee of the Issuing
Entity.
SECTION
3.04. Duties
of Servicer.
(a)
Receivable
Files. The Servicer, in its capacity as custodian, shall hold
the Receivable Files for the benefit of the Issuing Entity and the Indenture
Trustee and maintain such accurate and complete accounts, records and computer
systems pertaining to each Receivable File as shall enable itself and the
Issuing Entity to comply with this Agreement. The Depositor will
cause the Servicer, in its capacity as custodian, to deliver a written
acknowledgment that the Servicer, in its capacity as custodian, is holding the
Receivable Files solely on behalf and for the benefit of the Issuing Entity and
the Indenture Trustee. In performing its duties as custodian, the
Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the receivable files
relating to all comparable receivables that the Servicer services for itself or
others. The Servicer shall conduct, or cause to be conducted, periodic audits of
the related accounts, records and computer systems, in such a manner as shall
enable the Issuing Entity or the Indenture Trustee to verify the accuracy of the
Servicer's record keeping. The Servicer shall promptly report to the
Issuing Entity and the Indenture Trustee any failure on its part to hold the
Receivable Files or maintain its accounts, records and computer systems as
herein provided and promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or any periodic
review by the Issuing Entity, the Owner Trustee or the Indenture Trustee of the
Receivable Files. Within 30 days from the Closing Date, the Servicer
shall cause the Receivable Files to be removed from the State of Tennessee and
delivered to the address listed in Schedule
B.
21
(b)
Maintenance
of and Access to Records. The Servicer shall maintain each
Receivable File at its office located at 0000 X. Xxxxxxx Xxx Xxxxx 000, Xxx
Xxxxx Xxxxxx 00000, or at such other offices in the State of Nevada as the
Servicer shall designate from time to time after giving the Issuing Entity, the
Depositor, each Rating Agency and the Indenture Trustee prior written notice.
The Servicer shall notify the Owner Trustee and the Indenture Trustee of any
change in the location of its principal place of business in writing not later
than 90 days after any such change. The Servicer shall make available
to the Owner Trustee and the Indenture Trustee, or their respective duly
authorized representatives, attorneys or auditors, a list of locations of the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Owner Trustee or the Indenture
Trustee shall instruct. The Indenture Trustee shall have access to
such accounts, records and computer systems.
(c)
Safekeeping. The
Servicer shall hold, or cause to be held, on behalf of the Issuing Entity (i)
all file stamped copies of UCC financing statements evidencing the security
interest of the Issuing Entity in Transaction Equipment and (ii) the Receivable
Files and any other documents that CFSC or the Depositor shall keep on file, in
accordance with its customary procedures, relating to a Receivable, an Obligor
or Transaction Equipment, and shall maintain such accurate and complete records
pertaining to each Receivable as shall enable the Issuing Entity to comply with
this Agreement. Upon instruction from the Indenture Trustee, the
Servicer shall release any such UCC filing or other document to the Indenture
Trustee, the Indenture Trustee's agent, or the Indenture Trustee's designee, as
the case may be, at such place or places as the Indenture Trustee may designate,
as soon as practicable.
(d)
Indemnification. The
Servicer, as custodian, shall indemnify the Issuing Entity, the Owner Trustee
and the Indenture Trustee for any and all liabilities, obligations, losses,
damages, payments, costs, or expenses of any kind whatsoever that may be imposed
on, incurred or asserted against the Issuing Entity, the Owner Trustee or the
Indenture Trustee as the result of any act or omission in any way relating to
the maintenance and custody by the Servicer, as custodian, of the Receivable
Files; provided,
however,
that the Servicer shall not be liable for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Issuing
Entity, the Owner Trustee or the Indenture Trustee.
(e)
Term
of Appointment as Custodian. The Servicer's appointment as
custodian shall continue in full force and effect until terminated pursuant to
this Section
3.04(e) or until this Agreement shall be terminated. If the
Servicer shall resign as Servicer under Section 7.05 or if all of the rights and
obligations of the Servicer shall have been terminated under Section 8.01, the
appointment of the Servicer as custodian may be terminated by the Indenture
Trustee or by the Holders of Notes evidencing not less than 25% of the
Outstanding Principal Amount of the Notes, or if no Notes are Outstanding,
either the Owner Trustee or the Certificateholders, in the same manner as the
Indenture Trustee or such Holders may terminate the rights and obligations of
the Servicer under Section 8.01. As
soon as practicable after any termination of such appointment, the Servicer
shall, at its expense, deliver and/or electronically communicate the Receivable
Files to the Issuing Entity or the Issuing Entity's agent at such place or
places as the Issuing Entity may reasonably
designate. Notwithstanding the termination of the Servicer as
custodian, the Issuing Entity agrees that upon any such termination, the Issuing
Entity shall provide, or cause its agent to provide, access to the Receivable
Files to the Servicer for the purpose of carrying out its duties and
responsibilities with respect to the servicing of the Receivables
hereunder.
22
(f)
Release
of Receivable Files. From time to time, the Servicer, as custodian, is
hereby authorized to remove the Receivable File related to any Receivable or the
specific documents identified in such request by the Servicer from the address
listed in Schedule
B. The Servicer shall return the Receivable File, or such
other documents which have been removed by the Servicer, to the address listed
in Schedule
B when Servicer's need therefor no longer exists, unless the Receivable
shall be satisfied in full or liquidated. The Servicer shall return a
Receivable File removed by it within 30 days of such removal and if such
Receivable File has not been returned to the address listed in Schedule
B within such 30 day period, the Servicer shall repurchase the related
Receivable pursuant to Section
4.07.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF RECEIVABLES
SECTION
4.01. Duties
of Servicer. The Issuing Entity hereby engages the Servicer
and the Servicer hereby agrees to manage, service, administer and make
collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable receivables that it services for itself
or others. The Servicer's duties shall include calculating, billing,
collection and posting of all payments, responding to inquiries of Obligors on
such Receivables, investigating delinquencies, reporting tax information to
Obligors (to the extent required under the related Contracts), accounting for
collections, and furnishing servicer reports to the Owner Trustee and the
Indenture Trustee with respect to distributions. Subject to the
provisions of Section
4.02, the Servicer shall follow its customary standards, policies and
procedures in performing its duties as Servicer. Without limiting the
generality of the foregoing, the Servicer is authorized and empowered to execute
and deliver, on behalf of itself, the Issuing Entity, the Owner Trustee, the
Indenture Trustee, the Certificateholders and the Noteholders or any of them,
any and all instruments of satisfaction or cancellation, or partial or full
release or discharge, and all other comparable instruments, with respect to such
Receivables or to the Transaction Equipment securing such
Receivables. If the Servicer shall commence a legal proceeding to
enforce a Receivable, the Issuing Entity (in the case of a Receivable other than
a Purchased Receivable) shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such Receivable to the
Servicer. If in any enforcement suit or legal proceeding it shall be
held that the Servicer may not enforce a Receivable on the ground that it shall
not be a real party in interest or a holder entitled to enforce such Receivable,
the Owner Trustee shall, at the Servicer's expense and direction, take steps to
enforce such Receivable, including bringing suit in its name or the name of the
Issuing Entity, the Indenture Trustee, the Certificateholders or the
Noteholders. The Owner Trustee shall, upon the written request of the
Servicer, furnish the Servicer with any powers of attorney and other documents
reasonably necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. The Servicer shall
prepare, execute or cause to be executed and deliver all certificates or other
documents required to be delivered by the Issuing Entity pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 or the rules and regulations promulgated
thereunder. The Servicer shall determine the estimated value of any
Receivable as to which a Scheduled Payment is more than 180 days past its due
date as of the last day of a Collection Period during or prior to the
immediately following Collection Period.
23
SECTION
4.02. Collection
of Receivable Payments.
(a)
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Receivables as and when the same shall become
due and shall follow such collection procedures as it follows with respect to
all comparable machinery receivables that it services for itself or
others. The Servicer shall not reduce the principal balance of,
reduce the APR of, reduce the aggregate amount of Scheduled Payments or the
amount of any Scheduled Payment due under any Receivable, release or modify the
security interest in the Financed Equipment securing such Receivable, or
otherwise amend or modify a Receivable in a manner that would have a material
adverse effect on the interests of the Noteholders. Notwithstanding
the foregoing, the Servicer may grant extensions on a Receivable; provided,
however,
that if the Servicer extends the due date of any Scheduled Payment to a date
beyond the Class A-3 Note Final Scheduled Distribution Date, it shall promptly
purchase the Receivable from the Issuing Entity in accordance with the terms of
Section
4.07. To the extent not otherwise required by applicable law
or the applicable Contract, the Servicer shall allocate payments made by or on
behalf of the Obligor with respect to the Receivables first to any overdue
Scheduled Payment (including taxes and miscellaneous billables), second to the
current Scheduled Payment (including taxes and miscellaneous billables) and
third to late fees. The Servicer may in its discretion waive any
other amounts of Additional Servicing Compensation that may be collected in the
ordinary course of servicing a Receivable. Notwithstanding anything
in this Agreement to the contrary, in the event that a Receivable becomes a
Liquidated Receivable, any Recoveries relating thereto shall be paid to the
Depositor and such Liquidated Receivable shall be assigned by the Issuing Entity
to the Depositor.
(b)
Notwithstanding
anything in this Agreement to the contrary (but subject to the immediately
succeeding sentence), the Servicer may refinance any Receivable only if (i) the
related Obligor executes a new installment sales contract or lease and (ii) the
proceeds of such refinancing are used to pre-pay all obligations in full of such
Obligor under such Receivable (which amount shall be applied in accordance with
Section
5.03). The new receivable created by the refinancing shall not
be property of the Issuing Entity. The parties hereto intend that the
Servicer will not refinance a Receivable pursuant to this Section
4.02(b) in order to provide direct or indirect assurance to the
Depositor, the Indenture Trustee, the Owner Trustee, the Noteholders or the
Certificateholders, as applicable, against loss by reason of the bankruptcy or
insolvency (or other credit condition) of, or default by, the Obligor on, or the
uncollectability of, any Receivable.
24
SECTION
4.03. Realization
upon Receivables. On behalf of the Issuing Entity, the
Servicer shall use its best efforts, consistent with its customary servicing
procedures, to repossess or otherwise realize upon the Transaction Equipment
securing any Receivable as to which the Servicer shall have determined eventual
payment in full is unlikely or, with respect to Financed Equipment relating to
any Lease, as to which the related Obligor has returned the Financed
Equipment. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of comparable receivables, which may include selling the Transaction
Equipment at public or private sale. The foregoing shall be subject
to the provision that, in any case in which any item of Transaction Equipment
shall have suffered damage, the Servicer shall not expend funds in connection
with the repair or the repossession of such Transaction Equipment unless it
shall determine in its discretion that such repair or repossession will increase
the Liquidation Proceeds by an amount greater than the amount of such
expenses.
SECTION
4.04. Physical
Damage Insurance. The Servicer shall, in accordance with its
customary servicing procedures, require that each Obligor shall have obtained
physical damage insurance covering the Transaction Equipment as of the execution
of the Receivable.
SECTION
4.05. Maintenance
of Security Interests in Financed Equipment. The Servicer
shall, in accordance with its customary servicing procedures, take such steps as
are necessary to maintain perfection of the security interest created by each
Receivable (including each Receivable on which a governmental entity is the
Obligor) in the related Financed Equipment. The Servicer is hereby
authorized to take such steps as are necessary to re-perfect such security
interest or to maintain such perfected security interest on behalf of the
Issuing Entity and the Indenture Trustee in the event of the relocation of the
Obligor, or for any other reason.
SECTION
4.06. Covenants
of Servicer. The Servicer shall not: (i) release
the Transaction Equipment securing any Receivable from the security interest
granted by such Receivable in whole or in part or modify such security interest
except (A) in accordance with Section
4.03 or (B) in the event of payment in full by the Obligor
thereunder; (ii) impair the rights of the Issuing Entity, the
Indenture Trustee, the Certificateholders or the Noteholders in any Receivable;
or (iii) modify or refinance a Receivable except in accordance with the terms of
Section 4.02.
SECTION
4.07. Purchase
by Servicer of Receivables upon Breach. The Servicer or the
Owner Trustee shall inform the other party and the Indenture Trustee, the
Depositor and CFSC promptly, in writing, upon the discovery of any breach
pursuant to Section
3.04(f), 4.02,
4.05
or 4.06. Unless
the breach shall have been cured by the last day of the second month following
such discovery (or, at the Servicer's election, the last day of the first
following month), the Servicer shall purchase any Receivable materially and
adversely affected by such breach. If the Servicer takes any action
pursuant to Section
4.02 that impairs the rights of the Issuing Entity, the Indenture
Trustee, the Certificateholders or the Noteholders in any Receivable or as
otherwise provided in Section
4.02, the Servicer shall purchase such Receivable. In
consideration of the purchase of any such Receivable pursuant to either of the
two preceding sentences, the Servicer shall remit the Purchase Amount in the
manner specified in Section
5.04. Subject to Section
7.02, the sole remedy of the Issuing Entity, the Owner Trustee, the
Indenture Trustee, the Certificateholders or the Noteholders with respect to a
breach pursuant to Section
3.04(f), 4.02,
4.05
or 4.06
shall be to require the Servicer to purchase Receivables pursuant to this
Section. The Owner Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
purchase of any Receivable pursuant to this Section. The parties
hereto intend that the Servicer will not intentionally breach or cause a breach
pursuant to Section
3.04(f),
4.02,
4.05
or 4.06
in order to provide direct or indirect assurance to the Depositor, the Indenture
Trustee, the Owner Trustee, the Noteholders or the Certificateholders, as
applicable, against loss by reason of the bankruptcy or insolvency (or other
credit condition) of, or default by, the Obligor on, or the uncollectability of,
any Receivable.
25
SECTION
4.08. Servicing
Fee. On each Distribution Date, the Servicer shall be entitled
to receive the Servicing Fee in respect of the immediately preceding Collection
Period equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b)
the Note Value as of the first day of such preceding Collection
Period. The Servicer shall also be entitled to any Additional
Servicing Compensation with respect to Receivables, collected (from whatever
source) on the Receivables, which Additional Servicing Compensation shall be
paid to the Servicer pursuant to Section
5.08.
SECTION
4.09. Servicer
Report. On each Determination Date, the Servicer shall deliver
to the Administrator, the Owner Trustee, the Paying Agent as defined in the
Trust Agreement, the Indenture Trustee and the Depositor, with a copy to the
Rating Agencies, a Servicer Report containing all information necessary to make
the distributions pursuant to Sections
5.05, 5.06
and 5.07
for the Collection Period preceding the date of such Servicer
Report. The Servicer Report shall be substantially in the form of
Schedule C (or such other form as is acceptable to the Indenture Trustee,
the Owner Trustee and the Servicer). Neither the Owner Trustee nor
the Indenture Trustee shall be required to determine, confirm or recalculate the
information contained in the Servicer Report. Receivables to be
purchased by the Servicer or to be repurchased by the Depositor or CSFC shall be
identified by the Servicer by account number with respect to such Receivable as
specified in Schedule
A.
SECTION
4.10. Annual
Statement as to Compliance; Notice of
Default.
(a)
The
Servicer shall deliver to each of the Owner Trustee, the Indenture Trustee and
the Rating Agencies, on or before the earlier of (1) April 30 of each year
(commencing April 30, 2009) or (2) with respect to any calendar year during
which the Issuing Entity's Annual Report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, the date on which the Annual Report on Form 10-K is required to be
filed in accordance with the Exchange Act and the rules and regulations of the
Commission, a servicer compliance statement, signed by an authorized officer of
the Servicer, as described in Item 1123 of Regulation AB, to the effect
that:
26
(i)
A review
of the Servicer's activities during the preceding 12-month period ended December
31 (or in the case of the initial statement, the period from the Closing Date to
December 31) and of its performance under this Agreement has been made under
such officer's supervision; and
(ii)
To the
best of such officer's knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement in all material respects
throughout the reporting period or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known to
such officer and the nature and status thereof.
(b)
The
Servicer shall use commercially reasonable efforts to obtain from all other
parties participating in the servicing function any additional certifications
required under Item 1123 of Regulation AB to the extent required to be included
in the Issuing Entity's Annual Report on Form 10-K; provided,
however,
that a failure to obtain such certifications shall not be a breach of the
Servicer's duties hereunder if any such party fails to deliver such a
certification.
(c)
The
Indenture Trustee shall send a copy of such certificate and the accountants'
attestation referred to in Section
4.11 to the Rating Agencies. A copy of such certificate and
the accountants' attestation referred to in Section
4.11 may be obtained by any Certificateholder by a request in writing to
the Owner Trustee at its address in Section
10.03.
(d)
The
Servicer shall deliver to the Owner Trustee, the Indenture Trustee and the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an Officers'
Certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Default under Section
8.01(a) or (b).
SECTION
4.11. Annual
Independent Certified Public Accountants' Attestation. In
order to confirm that the servicing of the Receivables has been conducted in
compliance with the terms of this Agreement and to comply with the applicable
provisions of Regulation AB, the Servicer shall deliver or shall cause a firm of
independent certified public accountants, which may also render other services
to the Servicer, the Depositor or CFSC, to deliver to the Owner Trustee and the
Indenture Trustee on or before the earlier of (a) April 30 of each year
(commencing April 30, 2009) or (b) with respect to any calendar year during
which the Issuing Entity's Annual Report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, the date on which the Annual Report on Form 10-K is required to be
filed in accordance with the Exchange Act and the rules and regulations of the
Commission, the attestation required under Item 1122(b) of Regulation
AB.
SECTION
4.12. Servicer
Expenses. The Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder, including fees and
disbursements of independent accountants, taxes imposed on the Servicer and
expenses incurred in connection with distributions and reports to the Owner
Trustee, the Indenture Trustee, the Certificateholders and the
Noteholders.
27
SECTION
4.13. Reports
to the Commission.
(a)
The
Servicer shall cause to be filed with the Commission any periodic reports
required to be filed by the Issuing Entity under the provisions of the Exchange
Act, and the rules and regulations of the Commission thereunder including,
without limitation, reports on Form 10-K, Form 10-D and Form 8-K. The
Depositor shall, at its expense, cooperate in any reasonable request made by the
Servicer in connection with such filings.
(b)
Any Form
10-K filed with the Commission in connection with this Section 4.13 shall
include, with respect to the Notes:
(i)
A
certification, signed by the senior officer in charge of the servicing functions
of the Servicer, in the form required or permitted by the Commission (the "Form
10-K Certification"), in compliance with Rules 13a-14 and 15d-14 under the
Exchange Act and any additional directives of the
Commission.
(ii)
A report
regarding its assessment of compliance during the preceding calendar year with
all applicable servicing criteria set forth in Item 1122(d) of Regulation
AB with respect to transactions involving the Servicer that are backed by the
same types of assets as those backing the Notes, as well as similar reports on
assessment of compliance received from other parties participating in the
servicing function as required by Item 1122(a) of Regulation
AB.
(iii)
With
respect to each assessment report described immediately above, a report by a
registered public accounting firm that attests to, and reports on, the
assessment made by the asserting party, as set forth in relevant Commission
regulations, as described in Regulation 1122(b) of Regulation AB and Section
4.11.
(iv)
The
servicer compliance statement required to be delivered pursuant Section
4.10.
(c)
The
Servicer shall use commercially reasonable efforts to obtain from all other
parties participating in the servicing function any required assessment report
and related accountants' attestation to the extent required to be included in
the Issuing Entity's Annual Report on Form 10-K; provided,
however,
that a failure to obtain such certifications shall not be a breach of the
Servicer's duties hereunder if any such party fails to deliver such a report or
attestation.
ARTICLE
V
DISTRIBUTIONS;
RESERVE ACCOUNT;
CERTIFICATEHOLDER
AND NOTEHOLDER INFORMATION
SECTION
5.01. Establishment
of Trust Accounts.
(a)
(i) The
Servicer, for the benefit of the Noteholders, each Swap Counterparty and the
Certificateholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Securities Account (the "Collection Account"), which is U.S.
Bank National Association Account # 123072001 as of the Closing Date. The
Indenture Trustee shall establish and maintain an administrative subaccount
within the Collection Account for the benefit of the Noteholders, each Swap
Counterparty and the Certificateholders (the "Principal Distribution Account"),
which is U.S. Bank National Association Account # 123072002 as of the Closing
Date.
28
(ii)
The
Servicer, for the benefit of the Noteholders, each Swap Counterparty and the
Certificateholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Securities Account (the "Reserve Account"), which is U.S.
Bank National Association Account # 123072003 as of the Closing
Date.
(b)
Funds on
deposit in the Collection Account (including the Principal Distribution Account)
and the Reserve Account (collectively, the "Trust Accounts") shall be invested
by the Indenture Trustee in Eligible Investments selected by the Servicer; provided,
however,
it is understood and agreed that the Indenture Trustee shall not be liable for
any loss arising from such investment in Eligible Investments (other than losses
from nonpayment of investments in obligations of the institution acting as
Indenture Trustee). All such Eligible Investments shall be held by
the Indenture Trustee for the benefit of the applicable Noteholders, each Swap
Counterparty and, if applicable, the Certificateholders. Other than as permitted
by the Rating Agencies, funds credited to or on deposit in the Trust Accounts
shall be invested in Eligible Investments that will mature so that such funds
will be available at the close of business on the Transfer Date preceding the
immediately following Distribution Date; provided,
however,
that funds credited to or on deposit in Trust Accounts may be invested in
Eligible Investments of the Indenture Trustee which may mature so that such
funds will be available on the Distribution Date. Funds credited to
or deposited in a Trust Account on a Transfer Date which immediately precedes a
Distribution Date upon the maturity of any Eligible Investments are not required
to be invested overnight, but if so invested, such investments must meet the
conditions of the immediately preceding sentence.
(c) (i) The
Trust Accounts shall be under the control of the Indenture
Trustee. If, at any time, any of the Trust Accounts ceases to be an
Eligible Securities Account, the Indenture Trustee (or the Servicer on its
behalf) shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new Trust
Account as an Eligible Securities Account and shall transfer any cash or any
investments to such new Trust Account. So long as U.S. Bank National
Association is an Eligible Institution, any Trust Account may be maintained with
it as an Eligible Securities Account.
(ii) With
respect to the Trust Account Property, the Indenture Trustee and U.S. Bank
National Association, as Securities Intermediary, agree, and each subsequent
Securities Intermediary shall agree, by its acceptance hereof,
that:
(A) any
Trust Account Property held in securities accounts shall be held solely in the
Eligible Securities Accounts; and each such Eligible Securities Account shall be
subject to the control of the Indenture Trustee, and the Indenture Trustee shall
have sole signature authority with respect thereto;
29
(B) all
Trust Account Property shall be delivered to the Indenture Trustee by causing
the financial institution then maintaining the related Trust Account (each such
institution being referred to herein as a "Securities Intermediary") to indicate
by book-entry that the financial asset related to such Trust Account Property
has been credited to such Trust Account. Each Trust Account shall
only be established at a financial institution which agrees (i) to comply with
entitlement orders with respect to such Trust Account issued by the Indenture
Trustee without further consent of the Depositor, the Servicer or the Issuing
Entity and (ii) that each item of property credited to such Trust Account shall
be treated as a financial asset, and the Securities Intermediary does hereby
agree to the foregoing; and
(C) Upon
release of the lien of the Indenture Trustee under the Indenture in accordance
with the terms thereof, each of the Trust Accounts shall be put in the name of
the Issuing Entity and the Issuing Entity shall have all rights granted to the
Indenture Trustee pursuant to this Agreement.
(iii) The
Servicer shall have the power, revocable by the Indenture Trustee or by the
Owner Trustee with the consent of the Indenture Trustee, to instruct the
Indenture Trustee to make withdrawals and payments from the Trust Accounts for
the purpose of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to carry out its
duties under the Indenture.
(iv) The
Indenture Trustee is hereby authorized to execute purchase and sales directed by
the Servicer through the facilities of its own trading or capital markets
operations. The Indenture Trustee shall send statements to the
Servicer and the Issuing Entity monthly reflecting activity for each account
created hereunder for the preceding month. Although the Issuing
Entity recognizes that it may obtain a broker confirmation at no additional
cost, the Issuing Entity hereby agrees that confirmations of investments are not
required to be issued by the Indenture Trustee for each month in which a monthly
statement is rendered. No statement need be rendered pursuant to the
provision hereof if no activity occurred in the account for such
month.
SECTION
5.02. Interest
Rate Swap Agreement. On the Closing Date, the Issuing Entity
shall enter into the Initial Interest Rate Swap Agreement with the Initial Swap
Counterparty. The Servicer shall cause the Issuing Entity to enter into a
Replacement Interest Rate Swap Agreement if required pursuant to Section 6.14(c)
of the Indenture.
SECTION
5.03. Collections. Subject
to Section
5.04, the Servicer shall remit to the Collection Account (i) all payments
by or on behalf of the Obligors with respect to the Receivables (other than
Purchased Receivables) and (ii) all Liquidation Proceeds, in each case as
collected during each Collection Period within two Business Days of receipt and
identification thereof. Notwithstanding the foregoing, if (i) CFSC is the
Servicer, (ii) a Servicer Default shall not have occurred and be continuing and
(iii) CFSC maintains a short-term rating of at least "A-1" by Standard &
Poor's and "Prime-1" by Moody's, the Servicer may remit such collections with
respect to each Collection Period to the Collection Account on or before the
second Business Day prior to the following Distribution Date. For purposes of
this Article V, the phrase "payments by or on behalf of Obligors" shall mean
payments made with respect to the Receivables by Persons other than the Servicer
or CFSC.
30
SECTION
5.04. Additional
Deposits.
(a)
The
Servicer and the Depositor shall deposit or cause to be deposited in the
Collection Account the Purchase Amounts with respect to Purchased Receivables as
set forth in the immediately following sentence, and the Servicer shall deposit
in the Collection Account all amounts to be paid under Section
9.01 as set forth therein. The Servicer and the Depositor will
deposit the Purchase Amount with respect to each Purchased Receivable when such
obligations are due, unless, with respect to Purchase Amounts to be remitted by
the Servicer, the Servicer shall be permitted to make deposits monthly prior to
each Distribution Date pursuant to Section
5.03, in which case such deposits shall be made in accordance with such
Section. The Servicer shall account for Purchase Amounts paid by
itself, CFSC, or the Depositor separately.
(b)
By its
acknowledgement of this Agreement, the Indenture Trustee agrees that on each
Distribution Date it will withdraw all Investment Earnings credited to the
Reserve Account since the preceding Distribution Date (or in the case of the
initial Distribution Date, the Indenture Trustee will withdraw all Investment
Earnings credited to Reserve Account since the Closing Date) and deposit such
Investment Earnings in the Collection Account in accordance with Section
8.03(a) of the Indenture.
SECTION
5.05. Distributions.
(a)
On each
Determination Date, the Servicer shall calculate all amounts required to
determine the amounts, if any, to be remitted to the Noteholders, the Swap
Counterparty and the Certificateholders.
(b)
On the
second Business Day prior to each Distribution Date, the Servicer shall instruct
the Indenture Trustee, which instruction shall be in the form of Schedule
D (or such other form that is acceptable to the Indenture Trustee and the
Servicer), to make the following deposits and distributions for receipt by the
Servicer, the Noteholders, or for deposit in the applicable Trust Account or
Certificate Distribution Account by 11:00 A.M. (New York time) on such following
Distribution Date to the extent of the Total Distribution Amount on deposit in
the Collection Account (and any funds are to be distributed pursuant to Section
6.14(d) of the Indenture), in the following order of
priority:
(i)
to the
Servicer, the Servicing Fee and all unpaid Servicing Fees from prior Collection
Periods;
(ii)
to the
Administrator under the Administration Agreement, the Administration Fee and all
unpaid Administration Fees from prior Collection Periods;
31
(iii)
to the
Swap Counterparty, any Net Swap Payment owed on such Distribution
Date;
(iv)
to the
Noteholders and the Swap Counterparty, pro rata the Noteholders' Interest
Distributable Amount and any Senior Swap Termination Payment owed on such
Distribution Date, respectively;
(v)
to the
Principal Distribution Account, the First Priority Principal Distribution
Amount, if any;
(vi)
to the
Reserve Account, an amount equal to the excess of the Specified Reserve Account
Balance over the amount on deposit in the Reserve Account on such Distribution
Date; provided,
that,
on or prior to the Distribution Date on which the amount on deposit in the
Reserve Account equals the Specified Reserve Account Balance, the amount
deposited in the Reserve Account pursuant to this clause (vi) shall not exceed
the Net Excess Spread for the applicable Distribution Date;
(vii)
to the
Principal Distribution Account, the Regular Principal Distribution
Amount;
(viii)
pro rata,
to the Indenture Trustee under the Indenture, all unpaid Indenture Trustee's
fees and expenses, and to the Issuing Entity, the amount of any state taxes
payable by the Issuing Entity;
(xi)
to the
Swap Counterparty, any Subordinated Swap Termination Payments owed on such
Distribution Date; and
(x)
to the
Certificate Distribution Account, the remaining Total Distribution
Amount.
(c)
On the
second Business Day prior to each Distribution Date, the Servicer shall instruct
the Indenture Trustee, which instruction shall be in the form of Schedule
D (or such other form that is acceptable to the Indenture Trustee and the
Servicer), to make the following distributions from the Principal Distribution
Account by 11:00 A.M. (New York time) on such following Distribution Date in the
following order of priority:
(i)
to the
Class A-1 Noteholders in reduction of the Outstanding Principal Amount of
the Class A-1 Notes until the Outstanding Principal Amount thereof has been
reduced to zero;
(ii)
to the
Class A-2 Noteholders in reduction of the Outstanding Principal Amount of
the Class A-2 Notes until the Outstanding Principal Amount thereof has been
reduced to zero;
(iii)
to the
Class A-3 Noteholders in reduction of the Outstanding Principal Amount of
the Class A-3 Notes until the Outstanding Principal Amount thereof has been
reduced to zero; and
32
(iv)
to the
Certificate Distribution Account, any funds remaining on deposit in the
Principal Distribution Account.
(d)
Notwithstanding
anything in this Section
5.05 to the contrary, if an Event of Default under the Indenture occurs
and the maturities of the Notes are accelerated pursuant to Section
5.02 of the Indenture, all amounts on deposit in the Collection Account
shall be applied in accordance with Section
5.04(b) or 5.04(c)
of the Indenture.
SECTION
5.06. Reserve
Account.
(a)
On the
Closing Date, the Issuing Entity shall deposit the Reserve Account Initial
Deposit into the Reserve Account using the cash supplied to it pursuant to
Section 2.01(h). The Servicer shall determine the Specified
Reserve Account Balance for each Distribution Date.
(b)
On each
Determination Date, the Servicer shall determine if the Total Required Payment
exceeds the Total Available Amount for the related Distribution Date, and if
such an excess exists the Servicer shall instruct the Indenture Trustee to
withdraw from the Reserve Account on the related Distribution Date, to the
extent of funds available therein after any withdrawal from the Reserve Account
pursuant to Section
5.04(b), an amount equal to such excess and deposit such funds into the
Collection Account for inclusion as part of the Total Distribution Amount for
distribution on such Distribution Date in accordance with the priorities set
forth in Section
5.05(b).
(c)
On each
Determination Date, the Servicer shall determine if the amount on deposit in the
Reserve Account (after taking into account any deposits thereto pursuant to
Sections
5.05(b) and any withdrawals therefrom pursuant to Sections
5.04(b) or 5.06(b))
is greater than the Specified Reserve Account Balance for such Distribution Date
(which shall be calculated to give effect to the reduction in the Outstanding
Principal Amount of the Notes to result from payments to Noteholders pursuant to
Section
5.05(c) on such Distribution Date) and the Servicer shall instruct the
Indenture Trustee to deposit such amounts in the Certificate Distribution
Account.
(d)
Notwithstanding
anything in this Section
5.06 to the contrary, if an Event of Default under the Indenture occurs
and the maturities of the Notes are accelerated pursuant to Section
5.02 of the Indenture, amounts on deposit in the Reserve Account shall be
applied by the Indenture Trustee in accordance with Section
5.04(b) or 5.04(c)
of the Indenture.
(e)
Upon
satisfaction of the Rating Agency Condition, the Depositor may eliminate the
Reserve Account and replace it with an alternative
arrangement.
SECTION
5.07. Certificateholder
and Noteholder Information. On each Distribution Date, the Indenture
Trustee shall forward or make available to each Noteholder of record and the
Administrator shall forward to each Certificateholder of record pursuant to the
Trust Agreement the Servicer Report delivered by the Servicer pursuant to
Section 4.09. Such Servicer Report shall set forth at least the
following information as to the Notes (separately stating such information as to
the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes
and the Class A-3 Notes) and the Certificates, to the extent
applicable:
33
(i)
the
amount to be deposited to the Principal Distribution Account and the amounts to
be paid to the Noteholders and the Certificateholders
therefrom;
(ii)
the
Noteholders' Interest Distributable Amount and the amounts paid to the
Noteholders in respect thereof;
(iii)
the Pool
Balance as of the close of business on the last day of the preceding Collection
Period;
(iv)
the Note
Value as of the close of business on the last day of the preceding Collection
Period;
(v)
the
Outstanding Principal Amount of each class of the Notes, the Class A-1 Note
Pool Factor, the Class A-2a Note Pool Factor, the Class A-2b Note Pool
Factor, the Class A-3 Note Pool Factor and the Certificate Balance, in each
case as of the close of business on the last day of the preceding Collection
Period, after giving effect to payments allocated to principal reported under
(i) above;
(vi)
the
amount of the Servicing Fee paid to the Servicer with respect to the related
Collection Period;
(vii)
the
amount of the Administration Fee paid to the Administrator with respect to the
preceding Collection Period;
(viii)
the
aggregate amount of the Purchase Amounts for Purchased Receivables with respect
to the related Collection Period paid by each of CFSC, the Depositor, and the
Servicer (accounted for separately);
(ix)
the
amount of Realized Losses, if any, for the related Collection
Period;
(x)
the
amount of Cumulative Realized Losses with respect to the related Collection
Period;
(xi)
the
balance of the Reserve Account on such Distribution Date, after giving effect to
withdrawals made on such Distribution Date;
(xii)
the
Specified Reserve Account Balance for such Distribution
Date;
(xiii)
the
amount, if any, to be withdrawn from the Reserve Account and deposited into the
Collection Account on such Distribution Date pursuant to Section 5.06(b);
(xiv)
the
amount, if any, to be withdrawn from the Reserve Account and deposited to the
Certificate Distribution Account pursuant to Section
5.06(c);
(xv)
the
amount of any Net Swap Payment or any Net Swap Receipt for such Distribution
Date;
34
(xvi)
the
amount of any Senior Swap Termination Payment or Subordinated Swap Termination
Payment paid by the Issuing Entity on such Distribution
Date;
(xvii)
the
amount of any Swap Termination Payment paid by the Swap Counterparty on such
Distribution Date;
(xviii) the
aggregate amount to be deposited to the Certificate Distribution Account
pursuant to Section 5.05(c);
(xix)
the
amount, if any, to be distributed to the Certificateholders pursuant to Section 5.02(a)
of the Trust Agreement; and
(xx)
the
Certificate Balance for such Distribution Date .
Each
amount set forth pursuant to paragraph (i), (ii) or (iv) above shall be
expressed as a dollar amount per $1,000 of original principal balance of a
Note.
The
Indenture Trustee shall only be required to provide to the Noteholders the
information furnished to it by the Servicer. The Indenture Trustee
shall not be required to determine, confirm or recompute any such
information.
SECTION
5.08. Net
Deposits. As an administrative convenience, so long as CFSC is
the Servicer and the Administrator, if the Servicer is permitted to remit
collections monthly rather than within two Business Days of their receipt and
identification pursuant to Section
5.03, the Servicer will be permitted to make the deposit of collections
on the Receivables and Purchase Amounts for or with respect to the Collection
Period net of distributions to be made to the Servicer or the Administrator with
respect to such Collection Period (including any Additional Servicing
Compensation and the Servicing Fee to the extent of amounts available for
payment thereof), and the Servicer shall pay amounts owing to the Administrator
directly; provided, that if the Servicer is required to remit collections within
two Business Days, the Servicer shall be paid the Additional Servicing
Compensation by means of the Servicer making the deposit of such collections net
of the Additional Servicing Compensation and deposits of such amounts may not be
made net of the Servicing Fee. The Servicer, however, will account to
the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders as if the Servicing Fee and Administration Fee were paid
individually.
SECTION
5.09. Tax
Monitoring. The Servicer shall monitor whether any state taxes
are payable by the Issuing Entity and shall notify the Indenture Trustee of the
amount and due date of such taxes in a timely manner.
ARTICLE
VI
THE
DEPOSITOR
SECTION
6.01. Representations
of Depositor. The Depositor makes the following
representations on which the Issuing Entity is deemed to have relied in
acquiring the Receivables. The representations speak as of the
execution and delivery of this Agreement and shall survive the sale of the
Receivables to the Issuing Entity and the grant of a security interest therein
to the Indenture Trustee pursuant to the Indenture.
35
(a)
Organization
and Good Standing. The Depositor is duly organized and validly
existing as a corporation in good standing under the laws of the State of Nevada
with the power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently conducted,
and had at all relevant times, and has, the power, authority and legal right to
acquire and own the Receivables.
(b)
Due
Qualification. The Depositor is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the failure to so qualify
or to obtain any such license or approval would render any Receivable
unenforceable that would otherwise be enforceable by the Depositor or the
Issuing Entity.
(c)
Power
and Authority. The Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the Receivables and other property
to be sold and assigned to and deposited with the Issuing Entity and has duly
authorized such sale and assignment to the Issuing Entity by all necessary
corporate action; and the execution, delivery and performance of this Agreement
has been duly authorized by the Depositor by all necessary corporate
action.
(d)
Binding
Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Depositor enforceable in accordance with its terms,
except to the extent that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and the remedy of specific
performance and injunctive relief may be subject to certain equitable defenses
and to the discretion of the court before which any proceeding therefor may be
brought.
(e)
No
Violation. The consummation by the Depositor of the
transactions contemplated by this Agreement and the fulfillment by the Depositor
of the terms hereof do not (i) 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 articles of incorporation or by-laws of the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; (ii) result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than pursuant to the
Basic Documents); or (iii) violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
its properties.
(f)
No
Proceedings. There are no proceedings or investigations
pending, or to the Depositor's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, the Notes, the Certificates or any of the other Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the Certificates or
the consummation of any of the transactions contemplated by this Agreement, the
Indenture or any of the other Basic Documents; (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, the Notes, the Certificates or
any other of the Basic Documents or (iv) which might adversely affect the
federal or state income tax attributes of the Notes or the
Certificate.
36
SECTION
6.02. Liability
of Depositor; Indemnities. The Depositor shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Depositor under this Agreement.
(a)
The
Depositor shall indemnify, defend and hold harmless the Issuing Entity, the
Owner Trustee and the Indenture Trustee and their officers, directors and agents
from and against any taxes that may at any time be asserted against the Issuing
Entity, the Owner Trustee or the Indenture Trustee or their respective officers,
directors, and agents with respect to the sale of the Receivables to the Issuing
Entity or the issuance and original sale of the Certificates and the Notes,
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Issuing Entity,
not including any taxes asserted with respect to ownership of the Receivables or
federal or other income taxes arising out of the transactions contemplated by
this Agreement) and costs and expenses in defending against the
same.
(b)
The
Depositor shall indemnify, defend and hold harmless the Issuing Entity, the
Owner Trustee and the Indenture Trustee and their officers, directors, and
agents from and against any loss, liability or expense incurred by reason of (i)
the Depositor's willful misfeasance, bad faith or negligence in the performance
of its duties under this Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement and (ii) the Depositor's or the
Issuing Entity's violation or alleged violation of federal or state securities
laws in connection with the offering and sale of the Notes and the
Certificates.
Indemnification
under this Section shall survive the resignation or removal of the Owner Trustee
or the Indenture Trustee and the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of
litigation. If the Depositor shall have made any indemnity payments
pursuant to this Section
6.02 and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Depositor, without interest.
SECTION
6.03. Merger
or Consolidation of, or Assumption of the Obligations of,
Depositor. Any Person (a) into which the Depositor may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Depositor shall be a party or (c) which may succeed to the properties
and assets of the Depositor substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Depositor under this Agreement, shall be the successor to the Depositor
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; provided,
however,
that (i) immediately after giving effect to such transaction, no representation
or warranty made pursuant to Section
3.01 shall have been breached and no Servicer Default, and no event that,
after notice or lapse of time, or both, would become a Servicer Default shall
have occurred and be continuing, (ii) the Depositor shall have delivered to the
Owner Trustee and the Indenture Trustee an Officers' Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction
have been complied with, (iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and (iv) the Depositor shall have
delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all actions necessary
to perfect the interests of the Issuing Entity and the Indenture Trustee have
been taken, including that all financing statements and continuation statements
and amendments thereto have been authorized and filed that are necessary fully
to preserve and protect the interest of the Issuing Entity and Indenture
Trustee, respectively, in the Receivables and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the
execution of the foregoing agreement of assumption and compliance with clauses
(i), (ii), (iii) and (iv) above shall be conditions to the consummation of the
transactions referred to in clause (a), (b) or (c) above.
37
SECTION
6.04. Limitation
on Liability of Depositor and Others. The Depositor and any
director or officer or employee or agent of the Depositor may rely in good faith
on the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder. The Depositor shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION
6.05. Depositor
May Own the Certificates or Notes. The Depositor and any
Affiliate (other than CFSC) thereof may in its individual or any other capacity
become the owner or pledgee of the Certificates or Notes with the same rights as
it would have if it were not the Depositor or an Affiliate thereof, except as
expressly provided herein (including the definition of "Outstanding" contained
in each of the Indenture and the Trust Agreement) or in any Basic
Document.
ARTICLE
VII
THE
SERVICER
SECTION
7.01. Representations
of Servicer. The Servicer makes the following representations
on which the Issuing Entity is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and
delivery of the Agreement (or as of the date a Person (other than the Indenture
Trustee) becomes Servicer pursuant to Sections
7.03 and 8.02,
in the case of a successor to the Servicer) and shall survive the sale of the
Receivables to the Issuing Entity and the grant of a security interest therein
to the Indenture Trustee pursuant to the Indenture.
(a)
Organization
and Good Standing. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has the corporate power and authority to
own its properties and to conduct the business in which it is currently engaged,
and had at all relevant times, and has, the power, authority and legal right to
service the Receivables.
38
(b)
Power
and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Servicer by all necessary corporate action.
(c)
Binding
Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Servicer enforceable in accordance with its terms,
except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and the remedy of specific performance
and injunctive relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(d)
No
Violation. The consummation by the Servicer of the
transactions contemplated by this Agreement and the fulfillment by the Servicer
of the terms hereof do not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or lapse of
time) a default under, the articles of incorporation or by-laws of the Servicer,
or any indenture, agreement or other instrument to which the Servicer is a party
or by which it is bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than as contemplated by the Basic
Documents); nor violate any law or, to the best of the Servicer's knowledge, any
order, rule or regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties.
(e)
No
Proceedings. To the Servicer's best knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, the Notes, the Certificates or any
of the other Basic Documents; (ii) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the transactions contemplated
by this Agreement, the Indenture or any of the other Basic Documents; (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, the Notes, the Certificates or
any of the other Basic Documents; or (iv) relating to the Servicer and which
might adversely affect the federal or state income tax attributes of the Notes
or the Certificates.
(f)
No
Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Servicer of this Agreement
or any other Basic Document, the performance by the Servicer of the transactions
contemplated by this Agreement or any other Basic Document and the fulfillment
by the Servicer of the terms hereof or thereof, have been obtained or have been
completed and are in full force and effect (other than approvals,
authorizations, consents, orders or other actions which if not obtained or
completed or in full force and effect would not have a material adverse effect
on the Servicer or the Issuing Entity or upon the collectability of any
Receivable or upon the ability of the Servicer to perform its obligations under
this Agreement).
39
SECTION
7.02. Indemnities
of Servicer. The Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically undertaken by the
Servicer under this Agreement.
(a)
The
Servicer shall defend, indemnify and hold harmless the Issuing Entity, the Owner
Trustee, the Indenture Trustee, the Noteholders, the Certificateholders and the
Depositor and any of the officers, directors and agents of the Issuing Entity,
the Owner Trustee, the Indenture Trustee and the Depositor from and against any
and all costs, expenses, losses, damages, claims and liabilities, arising out of
or resulting from the use, ownership or operation by the Servicer or any
Affiliate (other than the Depositor or the Issuing Entity) thereof of any
Transaction Equipment.
(b)
The
Servicer shall indemnify, defend and hold harmless the Issuing Entity, the Owner
Trustee, the Indenture Trustee, and the Depositor and their respective officers,
directors and agents from and against (i) any taxes that may at any time be
asserted against any such Person with respect to the transactions contemplated
herein, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, in the case of the Issuing
Entity or the Depositor, not including any taxes asserted with respect to, and
as of the date of, the sale of the Receivables to the Issuing Entity or the
issuance and original sale of the Certificates and the Notes, or asserted with
respect to ownership of the Receivables, or Federal or other income taxes
arising out of distributions on the Certificates or the Notes) and (ii) costs
and expenses in defending against the same.
(c)
The
Servicer shall indemnify, defend and hold harmless the Issuing Entity, the Owner
Trustee, the Indenture Trustee, the Depositor, the Certificateholders and the
Noteholders and any of the officers, directors and agents of the Issuing Entity,
the Owner Trustee, the Indenture Trustee and the Depositor from and against any
and all costs, expenses, losses, claims, damages and liabilities to the extent
that any such cost, expense, loss, claim, damage or liability arose out of, or
was imposed upon any such Person through, the negligence, willful misfeasance or
bad faith of the Servicer in the performance of its duties under this Agreement,
or by reason of reckless disregard of its obligations and duties under this
Agreement or on account of the failure of the Servicer to be qualified to do
business as a foreign corporation or to have obtained a license or approval in
any jurisdiction.
(d)
The
Servicer shall indemnify, defend and hold harmless the Owner Trustee, and the
Indenture Trustee and their respective officers, directors and agents from and
against all costs, expenses, losses, claims, damages and liabilities arising out
of or incurred in connection with the acceptance or performance of the trusts
and duties herein, and in the case of the Owner Trustee, in the Trust Agreement,
and in the case of the Indenture Trustee, the Indenture, except to the extent
that any such cost, expense, loss, claim, damage or liability: (i)
shall be due to the willful misfeasance, bad faith or negligence (except for
errors in judgment) of the Owner Trustee or the Indenture Trustee, as
applicable; or (ii) shall arise from the breach by the Owner Trustee of any of
its representations or warranties set forth in Section
7.03 of the Trust Agreement.
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(e)
The
Servicer shall pay any and all taxes levied or assessed upon all or any part of
the Owner Trust Estate, other than any taxes asserted with respect to, and as of
the date of, the sale of the Receivables to the Issuing Entity or the issuance
and original sale of the Certificates and the Notes, or Federal or other income
taxes imposed on the Issuing Entity because of its classification or
reclassification for tax purposes, or Federal or other income taxes arising out
of distributions on the Certificates or the Notes.
For
purposes of this Section, in the event of the termination of the rights and
obligations of CFSC (or any successor thereto pursuant to Section
7.03) as Servicer pursuant to Section
8.01, or a resignation by such Servicer pursuant to this Agreement, such
Servicer shall be deemed to be the Servicer pending appointment of a successor
Servicer (other than the Indenture Trustee) pursuant to Section
8.02.
Indemnification
under this Section shall survive the resignation or removal of the Owner Trustee
or the Indenture Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter collects any of such amounts from others, such Person shall
promptly repay such amounts to the Servicer, without interest.
SECTION
7.03. Merger
or Consolidation of, or Assumption of the Obligations of,
Servicer. Any Person (a) (i) into which the Servicer may be
merged or consolidated, (ii) which may result from any merger or consolidation
to which the Servicer shall be a party, (iii) which may succeed to the
properties and assets of the Servicer substantially as a whole, or (iv) which is
a corporation 50% or more of the voting stock of which is owned, directly or
indirectly, by Caterpillar, and (b) in the case of any of (i), (ii), (iii) or
(iv), which has executed an agreement of assumption to perform every obligation
of the Servicer hereunder, shall be the successor to the Servicer under this
Agreement without further act on the part of any of the parties to this
Agreement; provided,
however,
that (w) immediately after giving effect to such transaction, no Servicer
Default, and no event which, after notice or lapse of time, or both, would
become a Servicer Default shall have occurred and be continuing, (x) the
Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent provided for in this Agreement
relating to such transaction have been complied with, (y) the Rating Agency
Condition shall have been satisfied with respect to such transaction and (z) the
Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an
Opinion of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been authorized and filed that are necessary fully to preserve and protect the
interest of the Owner Trustee and the Indenture Trustee, respectively, in the
Receivables and reciting the details of such filings or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interests. Notwithstanding anything herein to the
contrary, the execution of the foregoing agreement of assumption and compliance
with clauses (w), (x), (y) and (z) above shall be conditions to the consummation
of the transactions referred to in clause (a) or (b) above.
41
SECTION
7.04. Limitation
on Liability of Servicer and Others. Neither the Servicer nor
any of the directors or officers or employees or agents of the Servicer shall be
under any liability to the Issuing Entity, the Noteholders or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided,
however,
that this provision shall not protect the Servicer or any such person against
any liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement. The
Servicer and any director or officer or employee or agent of the Servicer as the
case may be, may rely in good faith on any document of any kind prima facie
properly executed and submitted by any person respecting any matters arising
under this Agreement.
Except as
provided in this Agreement, the Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action that shall not be incidental to
its duties to service the Receivables in accordance with this Agreement, and
that in its opinion may involve it in any expense or liability; provided,
however,
that the Servicer may undertake any reasonable action that it may deem necessary
or desirable in respect of this Agreement and the other Basic Documents and the
rights and duties of the parties to this Agreement and the other Basic Documents
and the interests of the Certificateholders under this Agreement and the
Noteholders under the Indenture.
SECTION
7.05. CFSC
Not To Resign as Servicer. Subject to the provisions of Section
7.03, CFSC shall not resign from the obligations and duties hereby
imposed on it as Servicer under this Agreement except upon determination that
the performance of its duties under this Agreement shall no longer be
permissible under applicable law (if it is also determined that such
determination may not be reversed). Notice of any such determination
permitting the resignation of CFSC shall be communicated to the Owner Trustee
and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation
shall become effective until the Indenture Trustee or a successor Servicer shall
have assumed the responsibilities and obligations of CFSC in accordance with
Section
8.02.
ARTICLE
VIII
DEFAULT
SECTION
8.01. Servicer
Default. If any one of the following events (each, a "Servicer
Default") shall occur and be continuing:
(a)
any
failure by the Servicer (i) to deliver to the Indenture Trustee for deposit in
any of the Trust Accounts or the Certificate Distribution Account any required
payment or (ii) to direct the Indenture Trustee to make any required
distribution therefrom that shall continue unremedied for a period of three
Business Days after written notice of such failure is received by the Servicer
from the Owner Trustee or the Indenture Trustee or after discovery of such
failure by an officer of the Servicer;
42
(b)
failure
on the part of the Servicer to duly observe or to perform in any material
respect any other covenants or agreements of the Servicer set forth in this
Agreement or any other Basic Document, which failure shall (i) materially and
adversely affect the rights of the Certificateholders or Noteholders and (ii)
continues unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
(A) to the Servicer by the Owner Trustee or the Indenture Trustee or (B) to the
Servicer and to the Owner Trustee and the Indenture Trustee by the Holders of
Notes evidencing not less than 25% of the Outstanding Principal Amount of the
Notes or by holders of Certificates evidencing not less than 25% of the
Certificate Balance; or
(c)
an
Insolvency Event occurs with respect to the Servicer;
then, and
in each and every case, so long as the Servicer Default shall not have been
remedied, either the Indenture Trustee, or the Holders of Notes evidencing not
less than 25% of the Outstanding Principal Amount of the Notes, or if no Notes
are Outstanding, either the Owner Trustee or the holders of Certificates
evidencing not less than 25% of the Certificate Balance, by notice then given in
writing to the Servicer (and to the Indenture Trustee and the Owner Trustee if
given by the Noteholders) may terminate all the rights and obligations (other
than the obligations set forth in Section
7.02 hereof that accrued prior to such termination) of the Servicer under
this Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Notes, the Certificates or the Receivables or
otherwise, shall, without further action, pass to and be vested in the Indenture
Trustee or such successor Servicer as may be appointed under Section
8.02; and, without limitation, the Indenture Trustee and the Owner
Trustee are hereby authorized and empowered to execute and deliver, on behalf of
the predecessor Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The predecessor Servicer shall
cooperate with the successor Servicer, the Indenture Trustee and the Owner
Trustee in effecting the termination of the responsibilities and rights of the
predecessor Servicer under this Agreement, including the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the predecessor Servicer for deposit, or shall thereafter be
received by it with respect to a Receivable. All reasonable costs and
expenses (including reasonable attorneys' fees) incurred in connection (x) with
transferring the computer or other records to the successor Servicer in the form
requested and (y) amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a Servicer
Default, the Owner Trustee shall give notice thereof to the Rating
Agencies.
SECTION
8.02. Appointment
of Successor Servicer.
(a)
Upon the
Servicer's receipt of notice of termination, pursuant to Section
8.01 or the Servicer's resignation in accordance with the terms of this
Agreement, the predecessor Servicer shall continue to perform its functions as
Servicer under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the earlier of (x) the date 45 days from the delivery to the
Owner Trustee and the Indenture Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms of this
Agreement and (y) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the Indenture Trustee shall appoint a successor Servicer,
and the successor Servicer shall accept its appointment by a written assumption
in form acceptable to the Owner Trustee and the Indenture Trustee. In
the event that a successor Servicer has not been appointed at the time when the
predecessor Servicer has ceased to act as Servicer in accordance with this
Section, pending the appointment of and acceptance by a successor Servicer, the
Indenture Trustee without further action shall automatically be appointed and
serve as the successor Servicer and the Indenture Trustee shall be entitled to
the Servicing Fee and the Additional Servicing
Compensation. Notwithstanding the above, the Indenture Trustee shall,
if it shall be legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established institution who has
demonstrated its capability to service the Receivables to the satisfaction of
the Indenture Trustee, as the successor to the Servicer under this Agreement,
having a net worth of not less than $50,000,000 and whose regular business shall
include the servicing of receivables comparable with the Receivables, as the
successor to the Servicer under this Agreement.
43
The
Indenture Trustee, acting in its capacity as successor Servicer, and any
successor Servicer appointed by it, shall have no responsibility or obligation
(i) for any breach by any predecessor Servicer of any of its representations and
warranties, or (ii) any acts or omissions of CFSC or any other Servicer prior to
its termination.
(b)
Upon
appointment, the successor Servicer (including the Indenture Trustee acting as
successor servicer) shall be the successor in all respects to the predecessor
Servicer and shall be subject to all the responsibilities, duties and
liabilities arising thereafter relating thereto placed on the predecessor
Servicer and shall be entitled to the Servicing Fee and the Additional Servicing
Compensation and all the rights granted to the predecessor Servicer by the terms
and provisions of this Agreement.
(c)
Subject
to the Indenture Trustee's right to appoint a successor Servicer pursuant to
Section
8.02(a) after the Indenture Trustee has become the Servicer pending the
appointment of and acceptance by a successor Servicer, the Servicer may not
resign unless it is prohibited from serving as such by law.
(d)
Notwithstanding
any other provision of this Agreement, neither the Indenture Trustee nor any
successor Servicer shall be deemed in default, breach or violation of this
Agreement as a result of the failure of CFSC or any Servicer (i) to cooperate
with the Indenture Trustee or any successor Servicer pursuant to Section
8.01, (ii) to deliver funds required to be deposited to any Trust Account
or (iii) to deliver files or records relative to the Receivables as may be
requested by the Indenture Trustee or successor Servicer.
SECTION
8.03. Notification
to Noteholders and Certificateholders. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article
VIII, the Owner Trustee shall give prompt written notice thereof to the
Certificateholders and the Indenture Trustee shall give prompt written notice
thereof to Noteholders and the Rating Agencies.
44
SECTION
8.04. Waiver
of Past Defaults. The Holders of Notes evidencing more than a
50% of the Outstanding Principal Amount of the Notes or, if no Notes are
Outstanding, the holders of Certificates evidencing more than 50% of the
Certificate Balance, may, on behalf of all Noteholders and the
Certificateholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to or payments from any of the Trust Accounts in
accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto.
ARTICLE
IX
TERMINATION
SECTION
9.01. Optional
Purchase of All Receivables; Trust Termination.
(a)
If on the
last day of any Collection Period the Note Value is 10% or less of the Initial
Note Value the Servicer shall have the option to purchase the Owner Trust
Estate, other than the Trust Accounts, which purchase shall be effective as of
such last day by depositing in the Collection Account on or prior to the second
Business Day prior to the next succeeding Distribution Date an amount equal to
the aggregate Purchase Amount for the Receivables (including defaulted
Receivables but not including Liquidated Receivables) pursuant to Section 5.04;
provided,
however,
that the aggregate Purchase Amount for the Receivables, after payment of all
amounts due pursuant to Section
5.05(b)(i) on such next succeeding Distribution Date, is an amount at
least equal to the aggregate Redemption Price for the Class A-3 Notes; and
provided further that the Servicer shall not purchase the Owner Trust Estate if
the aggregate Purchase Amount exceeds the fair market value of the Owner Trust
Estate as determined by the Servicer in good faith.
(b)
Notice of
any termination of the Issuing Entity shall be given by the Servicer to the
Owner Trustee and the Indenture Trustee as soon as practicable after the
Servicer has received notice thereof.
(c)
Following
the satisfaction and discharge of the Indenture and the payment in full of the
principal of and interest on the Notes, the Certificateholders will succeed to
the rights of the Noteholders hereunder (other than the right to receive
payments under Section 5.06(b)),
and the Owner Trustee will succeed to the rights of, and assume the obligations
of, the Indenture Trustee pursuant to this Agreement.
45
ARTICLE
X
MISCELLANEOUS
PROVISIONS
SECTION
10.01. Amendment. The
Agreement may be amended by the Depositor, the Servicer and the Issuing Entity,
with the consent of the Indenture Trustee, but without the consent of any of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided,
however,
that such amendment shall not, as evidenced by an Opinion of Counsel delivered
to the Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholders or the Certificateholders or the
federal tax characterization of the Notes.
This
Agreement may also be amended from time to time by the Depositor, the Servicer
and the Issuing Entity, with the consent of the Indenture Trustee, the consent
of the Holders of Notes evidencing at least a majority of the Outstanding
Principal Amount of the Notes and the consent of Certificateholders evidencing
more than 50% of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided,
however,
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the Outstanding Principal
Amount of the Notes, the holders of which are required to consent to any such
amendment, without the consent of the Holders of all the Outstanding
Notes.
Prior to
the execution of any such amendment or consent, the Servicer shall furnish
written notification of the substance of such amendment or consent to each of
the Rating Agencies. Promptly after the execution of any such
amendment or consent without the consent of the Certificateholders, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Certificateholders.
It shall
not be necessary for the consent of the Certificateholders or the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
Prior to
the execution of any amendment to this Agreement, the Owner Trustee and the
Indenture Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the Opinion of Counsel referred to in Section
10.02(i)(1). The Owner Trustee and the Indenture Trustee may,
but shall not be obligated to, enter into any such amendment which affects the
Owner Trustee's or the Indenture Trustee's, as applicable, own rights, duties or
immunities under this Agreement or otherwise.
46
Notwithstanding
the foregoing, no amendment to this Agreement shall materially and adversely
affect the rights or obligations of the Swap Counterparty under this Agreement
unless the Swap Counterparty shall have consented in writing to such amendment
(and such consent shall be deemed to have been given if the Swap Counterparty
does not object in writing within ten (10) Business Days after receipt of a
written request for such consent).
SECTION
10.02. Protection
of Title to Trust.
(a)
The
Depositor shall take all actions necessary to perfect, and maintain perfection
of, the interests of the Issuing Entity and the Indenture Trustee in the
Receivables. In the event it is determined that the Indenture
Trustee's or the Issuing Entity's interests are no longer perfected, such
actions shall include but shall not be limited to the enforcement of Section
3.04 of this Agreement and of Section
6.02 of the Purchase Agreement. In addition, without limiting
the rights of the Indenture Trustee or the Issuing Entity specified in the
immediately preceding sentence, the Depositor shall authorize and file such
financing statements and cause to be authorized and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to perfect, maintain, and protect the interest of the Issuing Entity and
the interest of the Indenture Trustee in the Receivables and in the proceeds
thereof. The Depositor shall deliver (or cause to be delivered) to
the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as available
following such filing.
(b)
Neither
the Depositor nor the Servicer shall change its name or type or jurisdiction of
organization unless it shall have given the Owner Trustee and the Indenture
Trustee at least 30 days' prior written notice thereof and, if applicable, shall
have timely filed appropriate amendments to any and all previously filed
financing statements or continuation statements (so that the security interest
of the Issuing Entity or the Indenture Trustee in the Receivables is not
adversely affected).
(c)
The
Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d)
The
Servicer shall maintain accounts and records as to each Receivable accurately
and in sufficient detail to permit (i) the reader thereof to know at any time
the status of such Receivable, including payments and Recoveries made and
payments owing (and the nature of each) and (ii) reconciliation between payments
or Recoveries on (or with respect to) each Receivable and the amounts from time
to time deposited in the Collection Account in respect of such
Receivable.
(e)
The
Servicer shall maintain its computer systems so that, from and after the time of
sale under this Agreement of the Receivables, the Servicer's master computer
records (including any backup archives) that refer to a Receivable shall
indicate clearly the interest of the Issuing Entity (which interest has been
acquired from the Depositor) and the Indenture Trustee in such Receivable and
that such Receivable is owned by the Issuing Entity and a security interest
therein has been granted to the Indenture Trustee. Indication of the
Issuing Entity's interest (which interest has been acquired from the Depositor)
and the Indenture Trustee's interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only when, the related
Receivable shall have been paid in full or repurchased.
47
(f)
If at any
time the Depositor or the Servicer shall propose to sell, grant a security
interest in, or otherwise transfer any interest in receivables comparable with
the Receivables, to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Issuing Entity and a security interest therein has been granted to the Indenture
Trustee.
(g)
The
Servicer shall permit the Indenture Trustee and its agents at any time during
normal business hours to inspect, audit and make copies of and abstracts from
the Servicer's records regarding any Receivable.
(h)
Upon
request, the Servicer shall furnish to the Owner Trustee or to the Indenture
Trustee, within five Business Days, a list of all Receivables (by contract
number and name of Obligor) then held as part of the Collateral, together with a
reconciliation of such list to the Schedule of Receivables and to each of the
Servicer Reports furnished before such request indicating removal of Receivables
from the Collateral.
(i)
The
Depositor shall deliver to the Owner Trustee and the Indenture
Trustee:
(1)
promptly
after the execution and delivery of this Agreement and of each amendment
thereto, an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all actions have been taken that are necessary fully to perfect the
interests of the Issuing Entity and the Indenture Trustee in the Receivables,
and reciting the details of such action or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to perfect such interest;
and
(2)
within
120 days after the beginning of each calendar year beginning with the first
calendar year beginning more than three months after the Cut-off Date, an
Opinion of Counsel, dated as of a date during such 120-day period, either (A)
stating that, in the opinion of such counsel, all actions have been taken, and,
if applicable, all financing statements and continuation statements have been
authorized and filed, that are necessary fully to perfect the interests of the
Issuing Entity and the Indenture Trustee in the Receivables and reciting the
details of such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to perfect such interest.
Each
Opinion of Counsel referred to in clause (1) or (2) above shall specify any
action necessary (as of the date of such opinion) to be taken in the following
year to perfect such interest.
48
(j)
The
Depositor shall, to the extent required by applicable law, cause the Notes to be
registered with the Commission pursuant to Section 12(b) or Section 12(g) of the
Exchange Act within the time periods specified in such
sections.
SECTION
10.03. Notices. All
demands, notices and communications upon or to the Depositor, the Servicer, the
Issuing Entity, the Owner Trustee, the Indenture Trustee or the Rating Agencies
under this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Depositor, to Caterpillar Financial
Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000,
(702-735-2514), (b) in the case of the Servicer, to Caterpillar Financial
Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, XX 00000-0000
(615-341-1000), (c) in the case of the Issuing Entity or the Owner Trustee, at
the "Corporate Trust Office" (as defined in the Trust Agreement), with a copy to
the Administrator, to 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000
(615-341-1000), (d) in the case of the Indenture Trustee, at the Corporate Trust
Office, (e) in the case of Moody's, to Xxxxx'x Investors Service, Inc., ABS/RMBS
Monitoring Department, 25th Floor, 7 World Trade Center, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 and (f) in the case of Standard & Poor's, to Standard
& Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department or, as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION
10.04. Assignment. Notwithstanding
anything to the contrary contained herein, except as provided in Sections
6.03 and 7.03
and as provided in the provisions of this Agreement concerning the resignation
of the Servicer, this Agreement may not be assigned by the Depositor or the
Servicer.
SECTION
10.05. Limitations
on Rights of Others. The provisions of this Agreement are
solely for the benefit of the Depositor, the Servicer, the Issuing Entity, the
Owner Trustee, the Certificateholders, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION
10.06. Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION
10.07. Separate
Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION
10.08. Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
49
SECTION
10.09. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS, REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION
10.10. Assignment
to Indenture Trustee. The Depositor hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuing Entity to the Indenture Trustee pursuant to the Indenture for the
benefit of the Noteholders of all right, title and interest of the Issuing
Entity in, to and under the Receivables and the other property constituting the
Owner Trust Estate or the assignment of any or all of the Issuing Entity's
rights and obligations hereunder to the Indenture Trustee.
SECTION
10.11. Nonpetition
Covenants.
(a)
Notwithstanding
any prior termination of this Agreement, the Servicer, the Depositor, the Owner
Trustee, the Securities Intermediary, and the Indenture Trustee shall not, prior
to the date which is one year and one day after the payment in full of the
Notes, acquiesce, petition or otherwise invoke or cause the Issuing Entity to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuing Entity under any Federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuing Entity or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuing
Entity.
(b)
Notwithstanding
any prior termination of this Agreement, the Servicer, the Issuing Entity, the
Owner Trustee, the Securities Intermediary, and the Indenture Trustee shall not,
prior to the date which is one year and one day after the payment in full of the
Notes, acquiesce, petition or otherwise invoke or cause the Depositor to invoke
the process of any court or government authority for the purpose of commencing
or sustaining a case against the Depositor under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Depositor or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor.
SECTION
10.12. Limitation
of Liability of Owner Trustee and Indenture
Trustee.
(a)
Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by BNYM (Delaware) not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuing Entity, and in no event shall BNYM (Delaware) in
its individual capacity or, except as expressly provided in the Trust Agreement,
as owner trustee of the Issuing Entity, have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuing Entity hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuing Entity. For all purposes of this Agreement,
in the performance of its duties or obligations hereunder or in the performance
of any duties or obligations of the Issuing Entity hereunder, the Owner Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Articles VI, VII and VIII of the Trust Agreement.
50
(b)
Notwithstanding
anything contained herein to the contrary, this Agreement has been acknowledged
and accepted by U.S. Bank National Association not in its individual capacity
but solely as Indenture Trustee and Securities Intermediary, and in no event
shall U.S. Bank National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuing Entity
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuing Entity.
[Signature
Page Follows]
51
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers as of the date first above
written.
CATERPILLAR
FINANCIAL ASSET TRUST 2008-A
|
|
By: BNYM
(DELAWARE), not in its individual capacity
but
solely as Owner Trustee on behalf of the Issuing
Entity,
|
By: /s/ Xxxxxxxx X.
Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice
President
CATERPILLAR
FINANCIAL FUNDING
CORPORATION,
as Depositor,
By:
/s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Treasurer
CATERPILLAR
FINANCIAL SERVICES
CORPORATION,
as Servicer
By: /s/ Xxxxx X.
Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
Acknowledged
and Accepted:
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity but only as
Indenture
Trustee and
Securities
Intermediary
By: /s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx X.
Xxxxx
Title: Vice
President
Acknowledged
and Accepted:
BNYM
(DELAWARE),
not
in its individual capacity but solely
as
Owner Trustee of the Issuing Entity,
By: /s/ Xxxxxxxx X.
Xxxxx
Name: Xxxxxxxx X.
Xxxxx
Title: Vice
President
SCHEDULE
A
SCHEDULE OF
RECEIVABLES
A-1
SCHEDULE
B
LOCATION OF RECEIVABLE
FILES
0000
X. Xxxxxxx Xxx Xxxxx 000
Xxx
Xxxxx Xxxxxx 00000
B-1
SCHEDULE
C
SERVICER
REPORT
The
undersigned hereby certify that (i) they are, respectively, a duly elected
[title] and [title] of Caterpillar Financial Services Corporation and (ii) this
Servicer Report complies with the requirements of, and is being delivered
pursuant to, Section 4.09 and Section 5.07 of the Sale and Servicing Agreement
(the "Sale and Servicing Agreement") dated as of April 1, 2008 between
Caterpillar Financial Asset Trust 2008-A, Caterpillar Financial Funding
Corporation and Caterpillar Financial Services Corporation.
Dated: _____________________________ _________________________________________
Name:
Title
_______________________________________________
Name:
Title:
C-1
|
SERVICER
REPORT
|
||
|
Record
Date
|
||
|
Distribution
Date
|
||
|
Transaction
Month
|
1
|
|
|
Collection
Period Month Begin
|
||
|
Collection
Period Month End
|
||
|
Previous
Payment Date (or Closing Date)
|
||
|
Actual
Days in Accrual Period
|
___
|
|
|
ORIGINAL
DEAL PARAMETERS
|
||
|
Initial
Note Value
|
||
|
Initial
Aggregate Contract Balance
|
||
|
Number
of Contracts
|
||
|
Weighted
Average Annual Percentage Rate
|
||
|
Weighted
Average Remaining Term
|
||
|
Annual
Servicing Fee Rate
|
||
|
Reserve
Account Initial Deposit
|
||
|
Specified
Reserve Account Balance
|
||
|
Class
A-1 Note Original Principal Balance
|
||
|
Class
A-1 Note Rate
|
||
|
Class
A-1 Note Final Scheduled Distribution Date
|
||
|
Class
A-1 CUSIP Number
|
||
|
Class
A-2a Note Original Principal Balance
|
||
|
Class
A-2b Note Original Principal Balance
|
||
|
Class
A-2a Note Rate
|
||
|
Class
A-2b Note Rate
|
||
|
Class
A-2 Note Final Scheduled Distribution Date
|
||
|
Class
A-2a CUSIP Number
|
||
|
Class
A-2b CUSIP Number
|
||
|
Class
A-3 Note Original Principal Balance
|
||
|
Class
A-3 Note Rate
|
||
|
Class
A-3 Note Final Scheduled Distribution Date
|
||
|
Class
A-3 CUSIP Number
|
||
|
Certificate
Balance
|
||
|
INPUTS
FROM PREVIOUS PERIOD SERVICER REPORT
|
||
|
Note
Value
|
||
|
Aggregate
Contract Balance
|
||
|
Number
of Contracts
|
||
|
Weighted
Average Annual Percentage Rate
|
||
|
Weighted
Average Remaining Term
|
||
|
Reserve
Account Balance
|
||
|
Class
A-1 Note Outstanding Principal Balance
|
||
|
Class
A-1 Note Interest Shortfall
|
||
|
Class
A-2a Note Outstanding Principal Balance
|
||
|
Class
A-2a Note Interest Shortfall
|
||
|
Class
A-2b Note Outstanding Principal Balance
|
||
|
Class
A-2b Note Interest Shortfall
|
||
|
Class
A-3 Note Outstanding Principal Balance
|
||
|
Class
A-3 Note Interest Shortfall
|
||
|
Servicing
Fee Shortfall
|
||
|
CURRENT
COLLECTION PERIOD ACTIVITY
|
||
|
Total
Interest Collections
|
||
|
Total
Principal Collections
|
||
|
Residual
Collections
|
||
|
Warranty
Repurchases Contracts
|
||
|
Administrative
Repurchases
|
||
|
Liquidation
Proceeds
|
||
|
Reserve
Account Reinvestment Income
|
||
|
Total
Available Amount
|
||
|
Beginning
Note Value
|
||
|
Ending
Note Value
|
||
|
Beginning
Aggregate Contract Balance
|
||
|
Ending
Aggregate Contract Balance
|
||
|
Number
of Contracts at Beginning of Period
|
||
|
Number
of Contracts at End of Period
|
||
|
Weighted
Average Annual Percentage Rate
|
||
|
Weighted
Average Remaining Term
|
||
|
Cumulative
Prepayment Rate
|
||
|
Aggregate
Scheduled Amounts 31-60 days past due
|
||
|
Aggregate
Scheduled Amounts 61-90 days past due
|
||
|
Aggregate
Scheduled Amounts 91-120 days past due
|
||
|
Aggregate
Scheduled Amounts 121 days or more past due
|
||
|
Net
Losses on Liquidated Receivables this Period
|
||
|
Repossessed
Equipment not Sold or Reassigned (Beginning)
|
||
|
Repossessed
Equipment not Sold or Reassigned (End)
|
||
|
CALCULATION
OF DISTRIBUTABLE AMOUNTS
|
||
|
Servicing
Fee Due
|
||
|
Is
CFSC or Affiliate Servicer (Yes / No)?
|
||
|
Has
Reserve Account Reached the Specified Reserve Account Balance (Yes /
No)?
|
||
|
Administration
Fee
|
||
|
Amount
of Net Swap Payment or Net Swap Receipt, if any,
|
||
|
Amount
of Senior Swap Termination Payment paid by Issuing Entity
|
||
|
Amount
of Subordinated Swap Termination Payment paid by Issuing
Entity
|
||
|
Class
A-1 Noteholders' Monthly Interest Distributable Amount
|
||
|
Class
A-1 Noteholders' Interest Carryover Shortfall
|
||
|
Class
A-1 Noteholders' Interest Distributable Amount
|
||
|
Class
A-2a Noteholders' Monthly Interest Distributable Amount
|
||
|
Class
A-2a Noteholders' Interest Carryover Shortfall
|
||
|
Class
A-2a Noteholders' Interest Distributable Amount
|
||
|
Class
A-2b Noteholders' Monthly Interest Distributable Amount
|
||
|
Class
A-2b Noteholders' Interest Carryover Shortfall
|
||
|
Class
A-2b Noteholders' Interest Distributable Amount
|
||
|
Class
A-3 Noteholders' Monthly Interest Distributable Amount
|
||
|
Class
A-3 Noteholders' Interest Carryover Shortfall
|
||
|
Class
A-3 Noteholders' Interest Distributable Amount
|
||
|
Noteholders'
Monthly Interest Distributable Amount
|
||
|
Noteholders'
Interest Carryover Shortfall
|
||
|
Noteholders'
Interest Distributable Amount
|
||
|
First
Priority Principal Distribution Amount
|
||
|
Regular
Principal Distribution Amount
|
||
|
Net
Excess Spread Amount
|
||
|
Total
Required Payment
|
||
|
Draw
from Reserve Account
|
||
|
Total
Distribution Amount
|
||
|
Excess
Cash flow deposited to Certificate Distribution Account
|
||
|
DISTRIBUTIONS
FROM COLLECTION ACCOUNT
|
||
|
1. Servicing
Fee
|
||
|
2. Administration
Fee
|
||
|
3. Net
Swap Payment, if any
|
||
|
4. Pro
Rata (a) Noteholders' Interest Distributable Amount to Noteholders and (b)
Senior Swap Termination Payment to Swap Counterparty
|
||
|
5. First
Priority Principal Distribution Amount to Principal Distribution
Account
|
||
|
6. Deposit
to Reserve Account
|
||
|
7. Regular
Principal Distribution Amount to Principal Distribution
Account
|
||
|
8. Pro
rata, (a) Indenture Trustee Fees and (b) State taxes
|
||
|
9. Subordinated
Swap Termination Payment, if any
|
||
|
10. Deposit
to Certificate Distribution Account
|
||
|
DISTRIBUTIONS
FROM PRINCIPAL DISTRIBUTION ACCOUNT
|
||
|
1. Principal
to Class A-1 Noteholders
|
||
|
2. Principal
to Class A-2 Noteholders
|
||
|
a. Principal
to Class A-2a Noteholders
|
||
|
b. Principal
to Class A-2b Noteholders
|
||
|
3. Principal
to Class A-3 Noteholders
|
||
|
4. Deposit
to Certificate Distribution Account
|
||
|
RECONCILIATION
OF RESERVE ACCOUNT
|
||
|
Beginning
Reserve Account Balance
|
||
|
Draw
from Reserve Account to cover shortfalls
|
||
|
Interim
Specified Reserve Account Balance
|
||
|
Deposit
to Reserve Account Needed
|
||
|
Deposit
to Reserve Account from Collection Account
|
||
|
Specified
Reserve Account Balance
|
||
|
Reserve
Account Release deposited into Certificate Distribution
Account
|
||
|
Ending
Reserve Account Balance
|
||
|
SUMMARY
OF DISTRIBUTIONS
|
||
|
Servicing
Fee Paid to Servicer
|
||
|
Servicing
Fee Shortfall
|
||
|
Administration
Fee
|
||
|
Net
Swap Payment, if any
|
||
|
Senior
Swap Termination Payment, if any
|
||
|
Class
A-1 Interest Paid
|
||
|
Class
A-1 Interest Shortfall
|
||
|
Class
A-1 Principal Paid
|
||
|
Ending
Class A-1 Principal Balance
|
||
|
Class
A-2a Interest Paid
|
||
|
Class
A-2a Interest Shortfall
|
||
|
Class
A-2a Principal Paid
|
||
|
Ending
Class A-2a Principal Balance
|
||
|
Class
A-2b Interest Paid
|
||
|
Class
A-2b Interest Shortfall
|
||
|
Class
A-2b Principal Paid
|
||
|
Ending
Class A-2b Principal Balance
|
||
|
Class
A-3 Interest Paid
|
||
|
Class
A-3 Interest Shortfall
|
||
|
Class
A-3 Principal Paid
|
||
|
Ending
Class A-3 Principal Balance
|
||
|
Subordinated
Swap Termination Payment, if any
|
||
|
Deposit
to Certificate Distribution Account
|
||
|
CERTIFICATEHOLDER
INFORMATION
|
||
|
ORIGINAL
DEAL PARAMETERS
Certificate
Balance
INPUTS
FROM PREVIOUS PERIOD STATEMENT TO CERTIFICATEHOLDER
Certificate
Balance
Certificate
Pool Factor
|
||
|
CALCULATION
OF DISTRIBUTABLE AMOUNTS
|
||
|
Deposit
to Certificate Distribution Account from Collection Account
plus
|
||
|
Deposit
to Certificate Distribution Account from Principal Distribution
Account
|
||
|
Deposit
to Certificate Distribution Account from Reserve Account
|
||
|
Total
Deposit to Certificate Distribution Account
|
||
|
DISTRIBUTIONS
FROM CERTIFICATE DISTRIBUTION ACCOUNT
|
||
|
1. Amounts
paid to Certificateholders
|
||
|
2. Amount
of Principal being paid on Certificate
|
||
|
per
$1,000 original principal balance
|
||
|
SUMMARY
OF DISTRIBUTIONS
|
||
|
Certificates
Principal Paid
|
||
|
Ending
Certificates Principal Balance
|
||
|
Certificate
Pool Factor
|
||
|
Remaining
amounts to the Certificateholder
|
||
|
NOTEHOLDER
INFORMATION
|
||
|
(i)
Amount of principal being paid on Notes
|
||
|
(a)
Class A-1 Notes (CUSIP No. 14911T AA3)
|
||
|
per
$1,000 original principal balance
|
||
|
(b)
Class A-2a Notes (CUSIP No. 14911T AB1)
|
||
|
per
$1,000 original principal balance
|
||
|
(c)
Class A-2b Notes (CUSIP No. 14911T AE5)
|
||
|
per
$1,000 original principal balance
|
||
|
(d)
Class A-3 Notes (CUSIP No. 14911T AC9)
|
||
|
per
$1,000 original principal balance
|
||
|
(e)
Total
|
||
|
(ii) Amount of interest
being paid on Notes
|
||
|
(a)
Class A-1 Notes (CUSIP No. 14911T AA3)
|
||
|
per
$1,000 original principal balance
|
||
|
(b)
Class A-2a Notes (CUSIP No. 14911T AB1)
|
||
|
per
$1,000 original principal balance
|
||
|
(c)
Class A-2b Notes (CUSIP No. 14911T
AE5)
|
||
|
per
$1,000 original principal balance
|
||
|
(d)
Class A-3 Notes (CUSIP No. 14911T AC9)
|
||
|
per
$1,000 original principal balance
|
||
|
(e)
Total
|
||
|
(iii)
(a) Aggregate Contract Balance at beginning of related collection
period
|
||
|
(b)
Aggregate Contract Balance at end of related collection
period
|
||
|
(c)
Note Value at beginning of related collection period
|
||
|
(d)
Note Value at end of related collection period
|
||
|
(iv)
Before and after giving effect to distributions on this Distribution
Date
|
||
|
(a)
(1) outstanding principal amount of Class A-1 Notes
|
||
|
(2)
outstanding principal amount of Class A-1 Notes
|
||
|
(3)
Class A-1 Note Pool Factor
|
||
|
(4)
Class A-1 Note Pool Factor
|
||
|
(b)
(1) outstanding principal amount of Class A-2 Notes
|
||
|
(2)
outstanding principal amount of Class A-2 Notes
|
||
|
(3)
outstanding principal amount of Class A-2a Notes
|
||
|
(4)
outstanding principal amount of Class A-2a Notes
|
||
|
(5)
Class A-2a Note Pool Factor
|
||
|
(6)
Class A-2a Note Pool Factor
|
||
|
(7)
outstanding principal amount of Class A-2b Notes
|
||
|
(8)
outstanding principal amount of Class A-2b Notes
|
||
|
(9)
Class A-2b Note Pool Factor
|
||
|
(10)
Class A-2b Note Pool Factor
|
||
|
(c)
(1) outstanding principal amount of Class A-3 Notes
|
||
|
(2)
outstanding principal amount of Class A-3 Notes
|
||
|
(3)
Class A-3 Note Pool Factor
|
||
|
(4)
Class A-3 Note Pool Factor
|
||
|
(v)
Amount of Servicing Fee paid
|
||
|
(vi)
Amount of Administration Fee being paid
|
||
|
(vii)
Amount of Net Swap Payment
|
||
|
(viii)
Amount of Swap Termination Payments paid by the Issuing
Entity
|
||
|
(ix)
Other expenses being paid
|
||
|
(x) Cumulative
Prepayment Rate for the related Collection Period
|
||
|
(xi)
Three-Month Rolling Over 60-Day Delinquency Percentage
|
||
|
(xii)
Aggregate Amount of Realized Losses for the related Collection
Period
|
||
|
(xiii)
Aggregate amount of Cumulative Realized Losses through the related
Collection period
|
||
|
(xiv)
Aggregate Purchase Amounts for the related Collection
Period
|
||
|
(xv)
(a) Balance of Reserve Account at beginning of related Collection
Period
|
||
|
(b)
Balance of Reserve Account at end of related Collection
Period
|
||
|
(xvi)
Specified Reserve Account Balance at end of related Collection
Period
|
C-2
SCHEDULE
D
TRUSTEE
INSTRUCTIONS
The
undersigned hereby certify that (i) they are, respectively, a duly elected
[title] and [title] of Caterpillar Financial Services Corporation and (ii) Exhibit A hereto
complies with the requirements of, and is being delivered pursuant to, Section 5.05(b) of
the Sale and Servicing Agreement (the "Sale and Servicing Agreement") dated as
of April 1, 2008 between Caterpillar Financial Asset Trust 2008-A, Caterpillar
Financial Funding Corporation and Caterpillar Financial Services
Corporation.
Dated: ________________________________ _________________________________________
Name:
Title:
_______________________________________________
Name:
Title:
D-1
EXHIBIT
A
TO
SCHEDULE D
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TRUSTEE
INSTRUCTIONS
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Attn: Xxxxxxx
Xxxxx, Vice President
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U.S.
Bank National Association
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Fax: (000)
000-0000
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Re: Caterpillar
Financial Asset Trust 2008-A, Account
#[______]
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Please
make the following distributions from the above referenced
account:
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(i
) Payment of Servicing Fee (including
any previously unpaid Servicing Fees) to Servicer pursuant to
Section 5.05 (b)(i ):
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(ii) to
the Administrator under the Administration Agreement, the
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Administration
Fee (including any previously unpaid Administration Fees) pursuant to
Section 5.05(b)(ii):
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(iii) to
the Swap Counterparty, any Net Swap Payment pursuant to Section
5.05(b)(iii):
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(iv) Noteholders'
Interest Distributable Amount to be remitted to the Noteholders pursuant
to Section 5.05(b) (iv):
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(v) to
the Swap Counterparty, any Senior Swap Termination Payment pursuant to
Section 5.05(b)(iv):
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(vi) Amount
of First Priority Principal Distribution Amount to be deposited to the
Principal Distribution Account pursuant to Section 5.05 (b) (v)
:
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(vii) Deposit
to Reserve Account pursuant to Section 5.05 (b)(vi):
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(viii) Amount
of the Regular Principal Distribution to be deposited to the Principal
Distribution Account pursuant to Section 5.05(b)(vii):
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(ix) to
the Indenture Trustee under the Indenture, all unpaid Indenture Trustee
fees and expenses pursuant to Section 5.05(b)( ix):
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(x) to
the Issuing Entity under Section 5.05(b)(ix), the amount of any State
taxes payable by the Issuing Entity:
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(xi) to
the Swap Counterparty, any Subordinated Swap Termination Payment, pursuant
to Section 5.05(b)(x):
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(xii) The
amount to be deposited to the Certificate Distribution Account pursuant to
Section 5.05 (b) (xi) for distribution to the holders of the
Certificates:
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(xiv) Amount
to be distributed from the Principal Distribution Account to each Class of
Noteholders, and to the holders of the Certificates:
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(xv) Amount
to be withdrawn from the Reserve Account and deposited to the Collection
Account pursuant to Section 5.06(b); and
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(xvi) Amount
to be withdrawn from the Reserve Account and deposited to the Certificate
Distribution Account pursuant to Section 5.06(c):
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Wire
instructions for Certificate Distribution Account:
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The
Bank of New York
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New
York, NY
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ABA#
021 000 018
Account
GLA#111565
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FOR
FURTHER CREDIT TO:
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TAS
Account # [__________]
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Reference: Cat
Financial 2008-A Certificate Distribution Account
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Attention: Xxxxxxx
Xxxxx Tel: (000) 000-0000
Fax:
(000) 000-0000
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D-2
