EXHIBIT 10.2
CATERPILLAR FINANCIAL ASSET TRUST 200[_]-[_]
Class A-1 [__]% Asset Backed Notes
Class A-2 [__]% Asset Backed Notes
Class A-3 [__]% Asset Backed Notes
Class A-4 [__]% Asset Backed Notes
Class B [__]% Asset Backed Notes
ADMINISTRATION AGREEMENT
Dated as of [Date]
____________________________
CATERPILLAR FINANCIAL SERVICES CORPORATION
Administrator
TABLE OF CONTENTS
1. DUTIES OF ADMINISTRATOR................................................2
2. RECORDS................................................................7
3. COMPENSATION...........................................................7
4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUING ENTITY...............7
5. INDEPENDENCE OF ADMINISTRATOR..........................................7
6. NO JOINT VENTURE.......................................................8
7. OTHER ACTIVITIES OF ADMINISTRATOR......................................8
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR............8
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL........................9
10. NOTICES................................................................9
11. AMENDMENTS............................................................10
12. SUCCESSORS AND ASSIGNS................................................10
13. GOVERNING LAW.........................................................11
14. HEADINGS..............................................................11
15. COUNTERPARTS..........................................................11
16. SEVERABILITY..........................................................11
17. NOT APPLICABLE TO CATERPILLAR FINANCIAL SERVICES CORPORATION IN
OTHER CAPACITIES......................................................11
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE........11
19. THIRD-PARTY BENEFICIARY...............................................11
20. SUCCESSOR SERVICER AND ADMINISTRATOR..................................11
21. NONPETITION COVENANTS.................................................12
EXHIBIT A - Form of Power of Attorney
ADMINISTRATION AGREEMENT, dated as of [Date] (as amended, modified or
supplemented from time to time, this "Agreement"), among CATERPILLAR
FINANCIAL ASSET TRUST 200[_]-[_], a Delaware statutory trust (the "Issuing
Entity"), CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation
("CFSC"), as administrator (the "Administrator"), CATERPILLAR FINANCIAL
FUNDING CORPORATION, a Nevada corporation, as depositor (the "Depositor"),
and [Name of Indenture Trustee], a national banking association, not in its
individual capacity but solely as trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS the Issuing Entity is issuing the Class A-1 [__]% Asset Backed
Notes (the "Class A-1 Notes"), the Class A-2 [__]% Asset Backed Notes (the
"Class A-2 Notes"), the Class A-3 [__]% Asset Backed Notes (the "Class A-3
Notes"), the Class A-4 [__]% Asset Backed Notes (the "Class A-4 Notes") and
the Class B [__]% Asset Backed Notes (the "Class B Notes"; together with the
Class A-1 Notes, Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Notes") pursuant to the Indenture, dated as of [Date] (as
amended, modified or supplemented from time to time, the "Indenture"),
between the Issuing Entity and the Indenture Trustee.
WHEREAS the Issuing Entity has entered into certain agreements in
connection with the issuance of the Notes and of certain beneficial ownership
interests of the Issuing Entity, including (i) a Sale and Servicing
Agreement, dated as of [Date] (as amended, modified or supplemented from time
to time, the "Sale and Servicing Agreement") (capitalized terms used herein
and not defined herein shall have the meanings assigned such terms in the
Sale and Servicing Agreement, or if not defined therein, in the Indenture)
among the Issuing Entity, CFSC, as servicer, and the Depositor, (ii) a
Depository Agreement dated [Date] (the "Depository Agreement"), among the
Issuing Entity, the Indenture Trustee and The Depository Trust Company, (iii)
the Indenture and (iv) the Custodial Agreement, dated as of [Date] (the
"Custodial Agreement"), among CFSC, the Depositor, the Issuing Entity, the
Indenture Trustee and [Name of Custodian], as custodian (the "Custodian").
The Sale and Servicing Agreement, the Depository Agreement, the Custodial
Agreement and the Indenture are hereinafter referred to collectively as the
"Related Agreements";
WHEREAS pursuant to the Related Agreements, the Issuing Entity and the
Owner Trustee are required to perform certain duties in connection with (a)
the Notes and the collateral therefor granted to the Indenture Trustee
pursuant to the Indenture (the "Collateral") and (b) the beneficial ownership
interests in the Issuing Entity (the holders of such interests being referred
to herein as the "Owners");
WHEREAS the Issuing Entity and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuing Entity and the
Owner Trustee referred to in the preceding clause, and to provide such
additional services consistent with the terms of this Agreement and the
Related Agreements as the Issuing Entity and the Owner Trustee may from time
to time request;
WHEREAS the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuing
Entity and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Duties of Administrator.
(a) Duties with Respect to the Related Agreements. (i) The Administrator
agrees to perform all the duties of the Issuing Entity and the Owner Trustee
under the Depository Agreement. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuing Entity and the
Owner Trustee under the Related Agreements. The Administrator shall monitor
the performance of the Issuing Entity and shall advise the Owner Trustee when
action is necessary to comply with the Issuing Entity's or the Owner
Trustee's duties under the Related Agreements. The Administrator shall
prepare for execution by the Issuing Entity or the Owner Trustee or shall
cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the
duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver
pursuant to any Related Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that it is the duty of the
Issuing Entity or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to
sections of the Indenture):
(A) the preparation of or obtaining of the documents and instruments
required for authentication of the Notes, if any, and delivery of the
same to the Indenture Trustee (Section 2.02);
(B) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section
2.04);
(C) the notification of Noteholders of the final principal payment on their
Notes (Section 2.07(b));
(D) the fixing or causing to be fixed of any specified record date and the
notification of the Indenture Trustee and Noteholders with respect to
special payment dates, if any (Section 2.07(c));
(E) the preparation, obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of collateral
(Section 2.09);
(F) the duty to cause newly appointed Paying Agents, if any, to deliver to
the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
2
(G) the direction to Paying Agents, if any, to pay to the Indenture Trustee
all sums held in trust by such Paying Agents (Section 3.03);
(H) the obtaining and preservation of the Issuing Entity's qualification to
do business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and
agreement included in the Trust Estate (Section 3.04);
(I) the preparation of all supplements, amendments, financing statements,
continuation statements, if any, instruments of further assurance and
other instruments, in accordance with Section 3.05 of the Indenture,
necessary to protect the Trust Estate (Section 3.05);
(J) the obtaining of the Opinion of Counsel on the Closing Date and the
annual delivery of Opinions of Counsel, in accordance with Section 3.06
of the Indenture, as to the Trust Estate, and the annual delivery of
the Officer's Certificate and certain other statements, in accordance
with Section 3.09 of the Indenture, as to compliance with the Indenture
(Sections 3.06 and 3.09);
(K) the identification to the Indenture Trustee in an Officer's Certificate
of a Person with whom the Issuing Entity has contracted to perform its
duties under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and the Rating Agencies of a
Servicer Default pursuant to the Sale and Servicing Agreement and, if
such Servicer Default arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing Agreement, the
taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(M) the preparation and obtaining of documents and instruments required for
the release of the Issuing Entity from its obligation under the
Indenture (Section 3.11(b));
(N) the delivery of notice to the Indenture Trustee and the Rating Agencies
of each Event of Default and each default by the Servicer or Depositor
under the Sale and Servicing Agreement (Section 3.19);
(O) the monitoring of the Issuing Entity's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.01);
(P) the compliance with any written directive of the Indenture Trustee with
respect to the sale of the Trust Estate in a commercially reasonable
manner if an Event of Default shall have occurred and be continuing
(Section 5.04);
3
(Q) the preparation and delivery of notice to Noteholders of the removal of
the Indenture Trustee and the appointment of a successor Indenture
Trustee (Section 6.08);
(R) the preparation of any written instruments required to confirm more
fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or
removal of any co-trustee or separate trustee (Sections 6.08 and 6.10);
(S) the furnishing of the Indenture Trustee with the names and addresses of
Noteholders during any period when the Indenture Trustee is not the
Note Registrar (Section 7.01);
(T) the preparation and, after execution by the Issuing Entity, the filing
with the Commission, any applicable state agencies and the Indenture
Trustee of documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders
(Section 7.03);
(U) the opening of one or more accounts in the Issuing Entity's name, the
preparation of Issuer Orders, Officer's Certificates and Opinions of
Counsel and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.02 and 8.03);
(V) the preparation of an Issuer Request and Officer's Certificate and the
obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate as defined in the
Indenture (Sections 8.04 and 8.05);
(W) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and 9.03);
(X) the execution of new Notes conforming to any supplemental indenture
(Section 9.06);
(Y) the notification of Noteholders of redemption of the Notes
(Section 10.02);
(Z) the preparation of all Officer's Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests by the Issuing
Entity to the Indenture Trustee to take any action under the Indenture
(Section 11.01(a));
(AA) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.01(b));
4
(BB) the notification of the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section 11.04);
(CC) the preparation and delivery to Noteholders and the Indenture Trustee
of any agreements with respect to alternate payment and notice
provisions (Section 11.06);
(DD) the recording of the Indenture, if applicable (Section 11.15); and
(EE) causing the Servicer to comply with Sections 4.09, 4.10, 4.11 and 5.06
of the Sale and Servicing Agreement.
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable compensation for
all services rendered by the Indenture Trustee under the Indenture
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the
Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its agents and
either in-house counsel or outside counsel, but not both), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and to hold them
harmless against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Indenture, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties under the
Indenture; and
(D) indemnify the Owner Trustee and its agents for, and to hold them
harmless against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Trust Agreement, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties under the
Trust Agreement.
(b) Additional Duties. (i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform such calculations and shall
prepare for execution by the Issuing Entity or the Owner Trustee or shall
cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the
duty of the Issuing Entity or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements, and at the request of the Owner Trustee
shall take all appropriate action that it is the duty of the Issuing Entity
or the Owner Trustee to take pursuant to the Related Agreements. Subject to
5
Section 5 of this Agreement, and in accordance with the directions of the
Owner Trustee, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Related Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to
the contrary, the Administrator shall be responsible for promptly notifying
the Owner Trustee in the event that any withholding tax is imposed on the
Issuing Entity's payments (or allocations of income) to the "Owner" as
contemplated in Section 5.02(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld by the
Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to
the contrary, the Administrator shall be responsible for performance of the
duties of the Owner Trustee set forth in Section 5.05 of the Trust Agreement
with respect to, among other things, accounting and reports to the
Certificateholder.
(iv) The Administrator may satisfy its obligations with respect to clauses
(ii) and (iii) above by retaining, at the expense of the Administrator, a
firm of independent public accountants (the "Accountants") acceptable to the
Owner Trustee which shall perform the obligations of the Administrator
thereunder. In connection with paragraph (ii) above, the Accountants will
provide prior to [Date] a letter in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with
the requirements of the Code. The Accountants shall be required to update
the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no
longer be required.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under
the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the
Administrator's opinion, no less favorable to the Issuing Entity than would
be available from unaffiliated parties.
(vii) It is the intention of the parties hereto that the Administrator shall,
and the Administrator hereby agrees to, execute on behalf of the Issuing
Entity or the Owner Trustee all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuing
Entity or the Owner Trustee to prepare, file or deliver pursuant to the Basic
Documents. In furtherance thereof, the Owner Trustee shall, on behalf of
itself and of the Issuing Entity, execute and deliver to the Administrator,
and to each successor Administrator appointed pursuant to the terms hereof,
one or more powers of attorney substantially in the form of Exhibit A hereto,
6
appointing the Administrator the attorney-in-fact of the Owner Trustee and
the Issuing Entity for the purpose of executing on behalf of the Owner
Trustee and the Issuing Entity all such documents, reports, filings,
instruments, certificates and opinions.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action, the Administrator shall have notified the
Owner Trustee of the proposed action and the Owner Trustee shall not have
withheld consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuing Entity and the
compromise of any action, claim or lawsuit brought by or against the
Issuing Entity (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of the Related Agreements;
(D) the appointment of successor Note Registrars, successor Paying Agents
and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments
to the Noteholders or the Certificateholder under the Related Agreements, (y)
sell the Trust Estate pursuant to Section 5.04 of the Indenture or (z) take
any other action that the Issuing Entity directs the Administrator not to
take on its behalf.
2. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account
and records shall be accessible for inspection by the Issuing Entity, the
Owner Trustee, the Indenture Trustee and the Depositor at any time during
normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to $[_________] per month which shall be payable in accordance with
Section 5.04 of the Sale and Servicing Agreement. The Depositor shall also
reimburse the Administrator for any of its liabilities and expenses related
to its performance hereunder or under any Related Agreement (including
without limitation those expenses set forth in Section 1(a)(ii) of this
Agreement).
7
4. Additional Information To Be Furnished to Issuing Entity. The
Administrator shall furnish to the Issuing Entity from time to time such
additional information regarding the Collateral as the Issuing Entity shall
reasonably request.
5. Independence of Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to
the supervision of the Issuing Entity or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuing Entity, the
Administrator shall have no authority to act for or represent the Issuing
Entity or the Owner Trustee in any way and shall not otherwise be deemed an
agent of the Issuing Entity or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuing Entity or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuing Entity, the Owner Trustee
or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator. (a) This
Agreement shall continue in force until the dissolution of the Issuing
Entity, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) and (f), the Administrator may resign its
duties hereunder by providing the Issuing Entity with at least 60 days prior
written notice.
(c) Subject to Section 8(e) and (f), the Issuing Entity may remove the
Administrator without cause by providing the Administrator with at least 60
days prior written notice.
(d) Subject to Section 8(e) and (f), at the sole option of the Issuing
Entity, the Administrator may be removed immediately upon written notice of
termination from the Issuing Entity to the Administrator if any of the
following events shall occur:
(i) the Administrator shall default in the performance of any of its duties
under this Agreement and, after notice of such default, shall not cure such
default within ten days (or, if such default cannot be cured in such time,
shall not give within 10 days such assurance of cure as shall be reasonably
satisfactory to the Issuing Entity);
(ii) a court having jurisdiction in the premises shall enter a decree or
order for relief, and such decree or order shall not have been vacated within
60 days, in respect of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
8
effect or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Administrator or any substantial
part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this Section shall occur, it shall give written notice
thereof to the Issuing Entity and the Indenture Trustee within seven days
after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this Section
shall be effective until (i) a successor Administrator shall have been
appointed by the Issuing Entity and (ii) such successor Administrator shall
have agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or
the resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuing Entity all
property and documents of or relating to the Collateral then in the custody
of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall cooperate with the Issuing Entity and take all reasonable
steps requested to assist the Issuing Entity in making an orderly transfer of
the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuing Entity or the Owner Trustee, to
CATERPILLAR FINANCIAL ASSET TRUST 200[_]-[_]
[Name of Owner Trustee]
[Address]
Attention: [____]
9
(b) if to the Administrator, to
Caterpillar Financial Services Corporation
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
(c) if to the Indenture Trustee, to
[Name of Indenture Trustee]
[Address]
(d) if to the Depositor, to
Caterpillar Financial Funding Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above, except that
notices to the Indenture Trustee are effective only upon receipt.
11. Amendments. This Agreement may be amended, with prior written notice
to the Rating Agencies, from time to time by a written amendment duly
executed and delivered by the Issuing Entity, the Administrator and the
Indenture Trustee, with the written consent of the Owner Trustee, without the
consent of the Noteholders and the Certificateholder, 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 Certificateholder; provided, however, that such amendment
will not, in the Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or the Certificateholder or the federal tax
characterization of the Notes. This Agreement may also be amended, with
prior written notice to the Rating Agencies, by the Issuing Entity, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the holders of Notes evidencing a majority in the Outstanding
Amount of the Notes and the holder of the Certificate 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
Noteholders or the Certificateholder; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders
or the Certificateholder or (ii) reduce the aforesaid percentage of the
holders of Notes and the holder of the Certificate which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and the Certificate. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the
Depositor, which permission shall not be unreasonably withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
10
the Issuing Entity and the Owner Trustee and subject to the satisfaction of
the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuing Entity or the Owner
Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Issuing Entity,
the Owner Trustee and the Indenture Trustee an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms
of said assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE 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 AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall together constitute but one and the same
agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall 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.
17. Not Applicable to Caterpillar Financial Services Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation
Caterpillar Financial Services Corporation may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been signed by [Name of Owner Trustee] not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuing Entity
and in no event shall [Name of Owner Trustee] in its individual capacity or
any beneficial owner of the Issuing Entity have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuing Entity hereunder, 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 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.
11
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by [Name of Indenture Trustee] not in its
individual capacity but solely as Indenture Trustee and in no event shall
[Name of Indenture Trustee] 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.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.02
of the Sale and Servicing Agreement, to enforce the provisions of Section
8.02 with respect to the appointment of a successor Servicer. Such successor
Servicer shall, upon compliance with the last sentence of the first paragraph
of Section 8.02 of the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture Trustee
shall become such successor Administrator, the Indenture Trustee shall not be
required to perform any obligations or duties or conduct any activities as
successor Administrator that would be prohibited by law and not within the
banking and trust powers of the Indenture Trustee. In such event, the
Indenture Trustee shall appoint a sub-administrator to perform such
obligations and duties.
21. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the Depositor,
the Administrator, the Owner Trustee and the Indenture Trustee shall not,
prior to the date which is one year and one day after the termination of this
Agreement with respect to the Issuing Entity, 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 Issuing
Entity, the Administrator, the Owner Trustee and the Indenture Trustee shall
not, prior to the date which is one year and one day after the termination of
this Agreement with respect to the Depositor, 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.
[Signature Page Follows]
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CATERPILLAR FINANCIAL ASSET
TRUST 200[_]-[_]
By: [Name of Owner Trustee], not in its
individual capacity but solely as Owner
Trustee
By:___________________________________________
Name:
Title:
[NAME OF INDENTURE TRUSTEE],
not in its individual capacity
but solely as Indenture Trustee
By:___________________________________________
Name:
Title:
CATERPILLAR FINANCIAL SERVICES CORPORATION,
as Administrator
By:___________________________________________
Name:
Title:
CATERPILLAR FINANCIAL FUNDING CORPORATION,
as Depositor
By:___________________________________________
Name:
Title:
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF ____________ )
)
COUNTY OF __________ )
KNOW ALL MEN BY THESE PRESENTS, that ______________________, a
____________________________, not in its individual capacity but solely as
owner trustee ("Owner Trustee") for the CATERPILLAR FINANCIAL ASSET TRUST
200[_]-[_] ("Trust"), does hereby make, constitute and appoint
____________________________, as Administrator under the Administration
Agreement (as defined below), and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Issuing
Entity all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Owner Trustee or the Issuing Entity
to prepare, file or deliver pursuant to the Related Agreements (as defined in
the Administration Agreement), including, without limitation, to appear for
and represent the Owner Trustee and the Issuing Entity in connection with the
preparation, filing and audit of federal, state and local tax returns
pertaining to the Issuing Entity, and with full power to perform any and all
acts associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restriction on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power of
Attorney, the term "Administration Agreement" means the Administration
Agreement, dated as of [Date], among the Trust, Caterpillar Financial
Services Corporation, as Administrator, Caterpillar Financial Funding
Corporation, as depositor, and [Name of Indenture Trustee], as Indenture
Trustee, as amended, modified or supplemented from time to time.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
EXECUTED this [___] day of [__], 20[__].
[Name of Owner Trustee], not in its
individual capacity but solely as Owner
Trustee,
By:___________________________________________
Name:
Title:
