PURCHASE AGREEMENT between CATERPILLAR FINANCIAL SERVICES CORPORATION Seller and CATERPILLAR FINANCIAL FUNDING CORPORATION Depositor Dated as of April 1, 2008
Exhibit
10.1
between
CATERPILLAR
FINANCIAL SERVICES CORPORATION
Seller
and
Depositor
Dated
as of April 1, 2008
TABLE
OF CONTENTS
Page
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CERTAIN
DEFINITIONS 1
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SECTION
1.01. DEFINITIONS
1
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SECTION
1.02. OTHER DEFINITIONAL PROVISIONS
3
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ARTICLE
II
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CONVEYANCE
OF RECEIVABLES 4
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SECTION
2.01. CONVEYANCE OF RECEIVABLES
4
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SECTION
2.02. OWNERSHIP OF RECEIVABLES FILES
5
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SECTION
2.03. BOOKS AND RECORDS
5
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SECTION
2.04. THE CLOSING
6
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ARTICLE III
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REPRESENTATIONS
AND WARRANTIES
6
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SECTION
3.01. REPRESENTATIONS AND WARRANTIES OF
DEPOSITOR 6
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SECTION
3.02. REPRESENTATIONS AND WARRANTIES OF
SELLER 7
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ARTICLE IV
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CONDITIONS
12
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SECTION
4.01. CONDITIONS TO THE OBLIGATION OF THE
DEPOSITOR
12
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SECTION
4.02. CONDITIONS TO OBLIGATION OF SELLER
13
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SECTION
4.03. JUNIOR LIENS ON FINANCED EQUIPMENT AND OTHER
EQUIPMENT
13
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ARTICLE V
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COVENANTS
OF THE SELLER AND THE DEPOSITOR
14
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SECTION
5.01. PROTECTION OF RIGHT, TITLE AND
INTEREST 14
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SECTION
5.02. OTHER LIENS OR INTERESTS
14
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SECTION
5.03. CHIEF EXECUTIVE OFFICE
15
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SECTION
5.04. CORPORATE EXISTENCE
15
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SECTION
5.05. INDEMNIFICATION
17
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SECTION
5.06. REGULATION AB COMPLIANCE
18
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ARTICLE VI
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MISCELLANEOUS
PROVISIONS
18
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SECTION
6.01. OBLIGATIONS OF SELLER
18
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SECTION
6.02. REPURCHASE EVENTS
18
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SECTION
6.03. DEPOSITOR ASSIGNMENT OF REPURCHASED
RECEIVABLES
18
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SECTION
6.04. ISSUING ENTITY
18
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SECTION
6.05. AMENDMENT
18
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SECTION
6.06. WAIVERS
19
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SECTION
6.07. NOTICES
19
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SECTION
6.08. COSTS AND EXPENSES
19
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SECTION
6.09. REPRESENTATIONS OF SELLER AND
DEPOSITOR
19
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SECTION
6.10. CONFIDENTIAL INFORMATION
20
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SECTION
6.11. HEADINGS
20
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SECTION
6.12. GOVERNING LAW
20
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SECTION
6.13. COUNTERPARTS
20
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EXHIBIT
A ASSIGNMENT OF RECEIVABLES
-ii-
PURCHASE
AGREEMENT, dated as of April 1, 2008, between CATERPILLAR FINANCIAL SERVICES
CORPORATION, a Delaware corporation, as seller (together with its successors and
assigns, the "Seller"), and CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada
corporation, as purchaser (together with its successors and assigns, the
"Depositor").
WHEREAS
in the regular course of its business, the Seller has originated or purchased
certain fixed-rate retail installment sale contracts and finance lease contracts
secured by new and used machinery and equipment; and
WHEREAS
the Seller and the Depositor wish to set forth the terms pursuant to which the
Receivables (as hereinafter defined) are to be sold by the Seller to the
Depositor, which Receivables will be transferred by the Depositor, pursuant to
the Sale and Servicing Agreement (as hereinafter defined), to Caterpillar
Financial Asset Trust 2008-A, a Delaware statutory trust (the "Issuing Entity"),
and the Issuing Entity will issue (i) an Asset Backed Certificate (the
"Certificate") pursuant to the Trust Agreement (as hereinafter defined), which
will represent an undivided beneficial interest in the Issuing Entity and
(ii) the Notes (as hereinafter defined) pursuant to the Indenture (as
hereinafter defined), which will represent obligations of the Issuing
Entity.
NOW,
THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
SECTION
1.01. Definitions. Except
as otherwise specified herein or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement.
"Administration
Agreement" means the Administration Agreement, dated as of April 1, 2008,
among the Issuing Entity, the Depositor, the Seller, as administrator, and U.S.
Bank National Association, as indenture trustee, as the same may be amended,
modified or supplemented from time to time.
"Affiliate" means,
with respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the
purposes of this definition, "control", when used with respect to any specified
Person, means the power to direct the management and policies of such Person,
directly or indirectly, by contract or otherwise; and the terms "controlled by,"
"controlling" and "under common control with" have meanings correlative to the
foregoing.
"Affiliate Trust Security
Interest" has the meaning specified in Section 4.03(b).
"Agreement" means this
Purchase Agreement, as the same may be amended, modified or supplemented from
time to time.
"Assignment" means the
document of assignment, a form of which is attached as
Exhibit A.
"Basic Documents" has
the meaning specified in the Indenture.
"Certificate" has the
meaning specified in the Trust Agreement.
"Closing Date" means
April 29, 2008.
"Contract" has the
meaning specified in the Sale and Servicing Agreement.
"Indenture" means the
Indenture, dated as of April 1, 2008, between the Issuing Entity and U.S. Bank
National Association, as indenture trustee, as the same may be amended, modified
or supplemented from time to time.
"Notes" means the
Class A-1 3.00500% Asset Backed Notes, the Class A-2a 4.09% Asset Backed Notes,
the Class A-2b Floating Rate Asset Backed Notes and the Class A-3 4.94% Asset
Backed Notes issued pursuant to the Indenture.
"Other Equipment" has
the meaning specified in Section 4.03(b).
"Other Obligation" has
the meaning specified in Section 4.03(a).
"Other Security
Interest" has the meaning specified in Section 4.03(a).
"Person" means any
individual, corporation, estate, partnership, joint venture, association, joint
stock company, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof.
"Prospectus" means the
Prospectus (which consists of a base prospectus dated April 22, 2008, and a
prospectus supplement dated April 22, 2008) pursuant to which the Notes were
offered.
"Receivable" has the
meaning specified in the Sale and Servicing Agreement.
"Receivable Security
Interest" has the meaning specified in Section 4.03(a).
"Repurchase Event" has
the meaning specified in Section 6.02(a).
"Sale and Servicing
Agreement" means the Sale and Servicing Agreement, dated as of April 1,
2008, among the Issuing Entity, the Depositor (in its capacity as seller
thereunder) and the Seller (in its capacity as Servicer thereunder), as the same
may be amended, modified or supplemented from time to time.
"Schedule of
Receivables" means the list of Receivables annexed as Schedule A (which
may be in the form of microfiche), as the same may be amended, modified or
supplemented from time to time.
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"Trust Agreement"
means the Amended and Restated Trust Agreement, dated as of April 29, 2008,
between the Depositor and BNYM (Delaware), a Delaware banking corporation, as
owner trustee, as the same may be amended, modified or supplemented from time to
time.
"UCC" means the
Uniform Commercial Code as in effect in the relevant jurisdiction, as amended
from time to time.
SECTION
1.02. Other Definitional
Provisions.
(a) Capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Sale and Servicing Agreement or, if not defined therein, in the
Indenture, or if not defined therein, in the Trust Agreement.
(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 context requires
otherwise. Any reference herein to the Administration Agreement, the
Indenture, the Sale and Servicing Agreement or the Trust Agreement means such
agreement as in effect on the Closing Date.
(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 sale on the Closing Date
of $648,365,308 in Contract Balance of Receivables as of the Cut-off Date, the
Depositor shall deliver to or upon the order of the Seller cash in an amount of
$636,426,673.37. The Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Depositor, without recourse (subject to the
obligations herein), all right, title and interest in and to the following,
whether now owned or hereafter acquired:
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(a) all right, title and interest of the
Seller in and to the Receivables, and all monies (including accrued interest)
due thereunder on or after the Cut-off Date;
(b) the interests of the Seller in the
security interests in the Transaction Equipment granted by Obligors pursuant to
the Receivables and any other interest of the Seller in such Transaction
Equipment, including any Liquidation Proceeds;
(c) the interest and rights of the Seller
in any 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;
(d) the interest of the Seller in any
proceeds of repossessed or returned Transaction Equipment;
(e) the interest of the Seller in any
proceeds from recourse to, or other payments by, Dealers on Receivables;
and
(f) 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 Seller to the
Depositor as provided in this Agreement be, and be construed as, a sale of the
Receivables by the Seller to the Depositor. 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 Seller
to the Depositor to secure a debt or other obligation of the
Seller. 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 Seller, 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 Seller hereby grants
to the Depositor a security interest in all of the Seller's right, title, and
interest, whether now owned or hereafter acquired, in and to the property
described in clauses (a) through (f) above, as security for the obligations of
the Seller hereunder. In connection herewith, the Depositor (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
Depositor pursuant to this Section 2.01 shall
also be an assignment of the security interest created hereby. The
Seller and the Depositor 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. Ownership of Receivables
Files.
Upon
the acceptance by the Seller of the amount set forth in Section 2.01, the
ownership of each Receivable and the contents of the related Receivables File
shall be vested in the Depositor.
SECTION
2.03. Books and
Records.
The
transfer of each Receivable shall be reflected on the Seller's balance sheets
and other financial statements prepared in accordance with generally accepted
accounting principles as a sale of assets by the Seller to the
Depositor. The Seller shall be responsible for maintaining, and shall
maintain, a complete and accurate set of accounts, records and computer files
for each Receivable which shall be clearly marked to reflect the ownership of
each Receivable by the Depositor.
SECTION
2.04. The
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 Sale and Servicing Agreement,
the Indenture, the underwriting agreement related to the Notes and the other
Basic Documents.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations and
Warranties of Depositor. The Depositor hereby represents and
warrants to the Seller as of the date hereof and as of the Closing
Date:
(a) Organization and Good
Standing. The Depositor is duly organized, validly existing in
good standing under the laws of the State of Nevada, and has the 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 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 ownership or lease of
property or the conduct of its business requires such
qualifications.
(c) Power and
Authority. The Depositor 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 has been duly authorized by the
Depositor by all necessary corporate action.
(d) 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 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
Depositor, or any indenture, agreement or other instrument to which the
Depositor 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 the Basic Documents);
nor violate any law or, to the best of the Depositor's knowledge, any order,
rule or regulation applicable to the Depositor of any court, federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
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(e) No
Proceedings. There are no proceedings or investigations
pending or, to the Depositor's best knowledge, threatened, before any court,
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties which
(i) assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this Agreement or
(iii) seek 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.
SECTION
3.02. Representations and
Warranties of Seller.
(a) The
Seller hereby represents and warrants to the Depositor of the date hereof and as
of the Closing Date:
(i) Organization and Good
Standing. The Seller is duly organized, validly existing in
good standing under the laws of the State of Delaware, and has the 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 acquire and own the Receivables.
(ii) Due
Qualification. The Seller 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 ownership or lease of property
or the conduct of its business requires such qualifications.
(iii) Power and
Authority. The Seller has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Seller has full power
and authority to sell and assign the property sold and assigned to the Depositor
hereby and has duly authorized such sale and assignment to the Depositor by all
necessary corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Seller by all necessary corporate
action.
(iv) No
Violation. The consummation by the Seller of the transactions
contemplated by this Agreement and the fulfillment by the Seller of the terms
hereof neither 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 certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller 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 the Basic Documents); nor violate any law or, to
the best of the Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court, federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Seller or its
properties.
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(v) No
Proceedings. There are no proceedings or investigations
pending, or, to the best of Seller's knowledge, threatened, before any court,
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties which
(i) assert the invalidity of this Agreement, (ii) seek to prevent the
consummation of any of the transactions contemplated by this Agreement or
(iii) seek any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement.
(vi) 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 Seller of this Agreement or
any other Basic Document, the performance by the Seller of the transactions
contemplated by this Agreement or any other Basic Document and the fulfillment
by the Seller 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 Seller or upon the collectability of any Receivable or upon the ability
of the Seller to perform its obligations under this Agreement).
(b) The Seller makes the following
representations and warranties as to the Receivables on which the Depositor
relied in accepting the Receivables. The parties hereto acknowledge
that the representations and warranties below require the Seller to monitor
conditions that it may not have the ability to monitor. Accordingly,
wherever the Seller makes, or is deemed to make, a representation that it cannot
monitor, such representation shall be made as if prefaced with the phrase "to
the best of the Seller's knowledge"; provided, however, that the
determination as to whether a Repurchase Event has occurred pursuant to Section 6.02
shall be made without reliance on whether the Seller actually had knowledge of
the accuracy of any of its representations. 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 Depositor
and the subsequent assignments and transfers of the Receivables pursuant to the
Sale and Servicing Agreement and the Indenture:
(i) Characteristics of
Receivables. Each Receivable (A) was originated in the United
States of America by the Seller in the ordinary course of business or was
originated by a Dealer in the ordinary course of business, in each case in
connection with the retail sale by a Dealer of Financed Equipment in the
ordinary course of such Dealer's business, was fully and properly executed by
the parties thereto, and if originated by such Dealer, was purchased by the
Seller from such Dealer and was validly assigned by such Dealer to the Seller in
accordance with its terms, (B) has created a valid, subsisting and enforceable
(subject to paragraph (iv) below) first priority security interest in favor of
the Seller in the Financed Equipment, and if applicable, a valid, subsisting and
enforceable (subject to paragraph (iv) below) security interest in favor of the
Seller in the Cross-Collateralized Equipment, which security interests are
assignable by the Seller to the Depositor, by the Depositor to the Issuing
Entity and by the Issuing Entity to the Indenture Trustee, (C) contains
customary and enforceable (subject to paragraph (iv) below) provisions such that
the rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security and (D) provides for
fixed payments (except as described below) on a periodic basis, yields interest
at a fixed-rate (in the case of Receivables related to an Installment Sales
Contract) and is prepayable without premium or penalty at any
time. The fixed payments provided for are sufficient to amortize the
Amount Financed of such Receivable by maturity and yield interest at the
APR.
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(ii) Schedule of
Receivables. The information set forth in the Schedule of
Receivables to this Agreement is true and correct in all material respects as of
the opening of business on the Cut-off Date and no selection procedures believed
to be adverse to the Noteholders or the Certificateholder as assignees of the
Depositor were utilized in selecting the Receivables. The computer
tape regarding the Receivables made available to the Depositor and its assigns
is true and correct in all respects.
(iii) Compliance with
Law. Each Receivable and the sale or lease of the Financed
Equipment complied at the time it was originated or made, and at the execution
of this Agreement complies in all material respects, with all requirements of
applicable federal, state and local laws and regulations thereunder, including
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Reserve Board's Regulations B and S and other equal credit opportunity and
disclosure laws.
(iv) Binding
Obligations. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable by
the holder thereof (which as of the Closing Date is the Seller) in accordance
with its terms, subject to bankruptcy, insolvency and other laws relating to the
enforcement of creditors' rights generally and to general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law). Such enforceability has not been and is not adversely
affected by whether or not the Seller was or is qualified to do business in the
state in which the Obligor was or is located.
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(v) Security Interest in
Financed Equipment. Immediately prior to the sale, assignment
and transfer thereof, each Receivable shall be secured by a validly perfected
first priority security interest in the Financed Equipment in favor of the
Seller as secured party. As of the Cut-off Date, such Financed
Equipment is located in the United States of America.
(vi) Receivables in
Force. No Receivable has been satisfied, subordinated or
rescinded and no Financed Equipment been released from the lien granted by the
related Receivable in whole or in part. No Receivable is rescindable
on the basis of whether or not the Seller was or is qualified to do business in
the state in which the Obligor was or is located.
(vii) Prospectus
Information. As of the Cut-off Date, each Receivable conforms
and all Receivables in the aggregate conform, in all material respects, to the
description set forth in the Prospectus, including all statistical data or
otherwise.
(viii) No
Amendments. No Receivable has been amended such that the
amount of the Obligor's Scheduled Payments has been increased or decreased,
except for increases or decreases resulting from the inclusion of any premium
for forced-placed physical damage insurance covering the Financed
Equipment.
(ix) No
Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any
Receivable.
(x) No
Liens. No liens or claims have been filed for work, labor or
materials relating to any Financed Equipment that are liens prior to, or equal
or coordinate with, the security interest in the Financed Equipment granted by
the Receivable.
(xi) No
Default. No Receivable has a payment that is more than
30 days overdue as of the Cut-off Date and, except as permitted in this
paragraph, no default, breach, violation or event permitting acceleration under
the terms of any Receivable has occurred and is continuing; and (except for
payment defaults continuing for a period of not more than 30 days) no continuing
condition that with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the terms of any
Receivable has arisen; and the Seller has not waived and shall not waive any of
the foregoing.
(xii) Insurance. Each
Obligor is required to obtain and maintain physical damage insurance and/or
liability insurance, as applicable, covering the Financed Equipment in
accordance with the Seller's normal requirements.
(xiii) Title. It
is the intention of the Seller that the transfer and assignment herein
contemplated constitute a sale of the Receivables from the Seller to the
Depositor, and that the beneficial interest in and title to the Receivables not
be part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the Seller to any
Person other than the Depositor. Immediately prior to the transfer
and assignment herein contemplated, the Seller has good and marketable title to
each Receivable, free and clear of all Liens, encumbrances, security interests
and rights of others and, immediately upon the transfer thereof, the Depositor
shall have good and marketable title to each Receivable, free and clear of all
Liens, tax, governmental or similar liens, encumbrances, security interests and
rights of others; and the transfer of the Receivables to the Depositor has been
or will be within 10 days after the Closing Date perfected under the
UCC.
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(xiv) Lawful
Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable or any Receivable under this Agreement, the Sale
and Servicing Agreement or the Indenture is unlawful, void or
voidable.
(xv) All Actions
Taken. All actions necessary to give the Depositor a first
priority perfected ownership interest in the Receivables pursuant to the UCC
have been taken or will be taken within 10 days after the Closing
Date.
(xvi) Leases. Each
Lease, relating to any Receivable (A) creates a security interest rather
than a lease for purposes of Section 1-201 of the UCC, (B) is not a
"consumer lease" within the meaning of Article 2A of the UCC in any jurisdiction
where said Article 2A has been adopted and governs the construction
thereof, (C) to the best knowledge of Seller, the related Obligor has
accepted the related Financed Equipment leased to it and has not notified Seller
of any defects therein, (D) is by its terms an absolute and unconditional
obligation of the related Obligor and non-cancelable, (E) requires the
related Obligor to maintain the related Financed Equipment for its own account
except for any rental, (F) the rights with respect to such Lease are
assignable by the Seller thereunder without the consent of any Person,
(G) is net to the Seller of any maintenance, taxes, insurance or other
expenses, (H) contains provisions requiring the related Obligor to assume
all risk of loss or malfunction of the related Financed Equipment and (I) may
not be prepaid by its terms, although the Obligor may discharge its obligations
by prepaying the aggregate remaining lease scheduled payments.
(xvii) Maturity of
Receivables. Each Receivable has a final scheduled payment
date due not later than the payment date occurring in March 2013 as of the
Cut-off Date and the weighted average remaining term of the Receivables is 40
months as of the Cut-off Date.
(xviii) Location of Receivable
Files. Within 30 days from the Closing Date, the Receivable
Files will be kept at the location listed in Schedule B to the Sale and
Servicing Agreement.
(xix) Outstanding Contract
Balance. Each Receivable has an outstanding Contract Balance
of at least $5,001 as of the Cut-off Date.
10
(xx) No
Bankruptcies. No Obligor on any Receivable as of the Cut-off
Date was noted in the related Receivable File as having filed for bankruptcy or
as being subject to a bankruptcy proceeding and to the Seller's knowledge no
such proceeding is pending or threatened against any Obligor.
(xxi) No
Repossessions. No Financed Equipment securing any Receivable
is in repossession status.
(xxii) Chattel
Paper. Each Receivable constitutes "tangible chattel paper"
within the meaning of the UCC of the States of New York and Nevada;
(xxiii) Obligors. None
of the Receivables is due from any Person which does not have a mailing address
in the United States of America. No Receivable is due from the United
States of America or any State or from any agency, department, instrumentality
or political subdivision thereof.
(xxiv) One
Original. There is only one Original Contract related to each
Receivable. With respect to each Receivable, the Seller has a
perfected, first priority ownership or security interest in such Receivable,
free and clear of all Liens, encumbrances, security interests or rights of
others.
(xxv) Payment
Frequency. As of the Cut-off Date and as shown on the books of
the Seller, Receivables having an aggregate Contract Balance equal to
approximately 86.5% of the aggregate Contract Balance of all Receivables had
monthly scheduled payments; and as of the Cut-off Date and as shown on the books
of the Seller, Receivables having an aggregate Contract Balance equal to
approximately 13.5% of the aggregate Contract Balance of all Receivables had
scheduled payments which have monthly scheduled payments other than certain
months specified therein for which payment is skipped.
(xxvi) Interest
Accrual. Each Receivable related to an Installment Sales
Contract is, as of the Closing Date, accruing interest.
(xxvii) Notification of
Obligors. With respect to each Dealer Receivable, the related
Obligor has been notified with respect to the assignment of the related Contract
to the Seller.
ARTICLE
IV
CONDITIONS
SECTION
4.01. Conditions to the Obligation
of the Depositor. The obligation of the Depositor to purchase
the Receivables is subject to the satisfaction of the following
conditions:
(a) Representations and
Warranties True. The representations and warranties of the
Seller hereunder shall be true and correct on the Closing Date with the same
effect as if then made and the Seller shall have performed all obligations to be
performed by it hereunder on or prior to the Closing Date.
11
(b) Computer Files
Marked. The Seller shall, at its own expense on or prior to
the Closing Date (i) indicate in its computer files that the Receivables have
been sold to the Depositor pursuant to this Agreement and sold by the Depositor
to the Issuing Entity pursuant to the Sale and Servicing Agreement and
(ii) deliver to the Depositor the Schedule of Receivables certified by the
Chairman, the President, a Vice President, Secretary, the Treasurer or an
Assistant Treasurer of the Seller to be true, correct and complete.
(c) Documents to be Delivered by
Seller at Closing.
(i) Assignment. On
the Closing Date, the Seller will execute and deliver the
Assignment. The Assignment shall be substantially in the form of
Exhibit A.
(ii) Other
Documents. On the Closing Date, the Seller will execute and
deliver such other documents as the Depositor may reasonably
request.
(d) Other
Transactions. The transactions contemplated by the Basic
Documents to be consummated on the Closing Date shall be consummated on such
date.
SECTION
4.02. Conditions to Obligation of
Seller. The obligation of the Seller to sell the Receivables
to the Depositor is subject to the satisfaction of the following
conditions:
(a) Representations and
Warranties True. The representations and warranties of the
Depositor hereunder shall be true and correct on the Closing Date with the same
effect as if then made and the Depositor shall have performed all obligations to
be performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase
Price. On the Closing Date, the Depositor shall have delivered
to the Seller the purchase price specified in Section 2.01.
SECTION
4.03. Junior Liens on Financed
Equipment and Other Equipment.
(a) To
the extent that any item of Financed Equipment is subject to a security interest
in favor of the Seller (each, an "Other Security Interest") to secure an
obligation of the related Obligor that is not part of a Receivable that has been
transferred to the Depositor pursuant to Section 2.01 (each, an "Other
Obligation"), then the Seller agrees that, notwithstanding any other provision
of any document, instrument or agreement to the contrary, and until (i) the
related Receivable has been paid in full or (ii) the security interest in such
item of Financed Equipment that secures the Receivable (the "Receivable Security
Interest") has been discharged or released, (A) the Receivable Security Interest
in the Financed Equipment shall be prior and senior to the Other Security
Interest in the Financed Equipment, and the Other Security Interest in the
Financed Equipment shall be subordinate and junior to the Receivable Security
Interest in the Financed Equipment, (B) the Seller shall not transfer the Other
Obligation to an Affiliate of the Seller or a trust (other than the Issuing
Entity) established by the Depositor or any of its Affiliates unless the
documentation for such transaction provides that the Receivable Security
Interest in the Financed Equipment shall be prior and senior to the Other
Security Interest in the Financed Equipment, and the Other Security Interest in
the Financed Equipment shall be subordinate and junior to the Receivable
Security Interest in the Financed Equipment, and (C) the Seller shall not
transfer the Other Obligation (other than as described in clause (B) of this
paragraph) unless the transferee agrees in writing that the Receivable Security
Interest in the Financed Equipment shall be prior and senior to the Other
Security Interest in the Financed Equipment, and the Other Security Interest in
the Financed Equipment shall be subordinate and junior to the Receivable
Security Interest in the Financed Equipment.
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(b) To the extent that any Receivable is
secured by a security interest in any equipment other than the Financed
Equipment (the "Other Equipment") and such Other Equipment is subject to a
security interest (each, an "Affiliate Trust Security Interest") in favor of the
Seller that has been or will in the future be assigned by the Seller to a trust
(other than the Issuing Entity) established by the Depositor or any of its
Affiliates, then the Seller and the Depositor agree that the Affiliate Trust
Security Interest in the Other Equipment shall be prior and senior to the
security interest in the Other Equipment that secures the Receivable, and the
security interest in the Other Equipment that secures the Receivable shall be
subordinate and junior to the Affiliate Trust Security Interest in the Other
Equipment.
ARTICLE
V
COVENANTS
OF THE SELLER AND THE DEPOSITOR
The
Seller and the Depositor agree with each other as follows; provided, however, that to the
extent that any provision of this Article conflicts with any provision of the
Sale and Servicing Agreement, the Sale and Servicing Agreement shall
govern:
SECTION
5.01. Protection of Right, Title
and Interest.
(a) Further
Assurances. The Seller shall take all actions to preserve and
protect the right, title and interest of the Depositor in and to the Receivables
and the other property transferred to the Depositor pursuant to Section
2.01. The Depositor shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the purpose of this
paragraph.
(b) Name
Change. Within 15 days after the Seller makes any change in
its name or type or jurisdiction of organization, the Seller shall give the
Depositor notice of any such change.
(c) UCC Financing
Statements. The Seller shall file and maintain all appropriate
financing statements (in the proper filing office, in the appropriate
jurisdiction), necessary to perfect, and maintain the perfection of, the
ownership interest or security interest of the Depositor in the
Receivables.
13
SECTION
5.02. Other Liens or
Interests. Except for the conveyances hereunder and pursuant
to the Sale and Servicing Agreement and the other Basic Documents, the Seller
shall not sell, pledge, assign or transfer to any Person, or grant, create,
incur, assume or suffer to exist any Lien arising through or under it or any
Dealer on, any interest in, to and under the Receivables, and the Seller shall
defend the right, title and interest of the Depositor in, to and under the
Receivables against all claims of third parties claiming through or under the
Seller or any Dealer; provided, however, that the
Seller's obligations under this Section shall terminate one year and one day
after the termination of the Issuing Entity pursuant to the Trust
Agreement.
SECTION
5.03. Chief Executive
Office. During the term of the Receivables, the Seller will
maintain its chief executive office in one of the States of the United States of
America or the District of Columbia.
SECTION
5.04. Corporate
Existence.
(a) During
the term of this Agreement, the Depositor will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of Nevada and
will obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the Sale and Servicing Agreement and the transactions contemplated
hereby.
(b) The Seller will not take any action or
fail to take any action if such act or omission would cause the Depositor not to
observe the covenants set forth in Section 5.04(c)
or to violate the provisions of the Depositor's articles of
incorporation.
(c) The Depositor and the Seller agree that
each of their respective businesses shall be conducted as follows, and neither
Depositor nor the Seller shall take any action or fail to take any action if
such act or omission would cause its respective business not to be conducted as
follows:
(i) The
Depositor will maintain both an office at which its business is and will be
conducted and a telephone number separate from the Seller or any of the Seller's
Affiliates.
(ii) At
least two of the Depositor's directors are not and will not be directors,
officers or employees of the Seller or any of the Seller's
Affiliates. No employee of the Depositor shall engage in any
servicing functions with respect to the Receivables (other than retrieving
Receivable Files, from their location listed in Schedule B to the Sale and
Servicing Agreement at the request of the Servicer, and sending such files to
the Servicer) and, with respect to the Depositor, shall only engage in corporate
governance and clerical functions. So long as the Depositor maintains
an employee at its office, the Depositor shall at all times maintain
comprehensive liability and workmen's compensation insurance (as is customary
for commercial enterprises) in an amount, when taking into account any available
umbrella policy, at least equal to $5,000,000.
14
(iii) The
Depositor will maintain corporate records and books and accounts separate from
those of the Seller or any of the Seller's Affiliates.
(iv) Except
as expressly permitted by the Sale and Servicing Agreement with respect to
collections on the Receivables prior to the transfer of such collections to the
Collection Account, the Depositor's funds will not be commingled with those of
the Seller or any of the Seller's Affiliates, and the Depositor shall maintain
bank accounts separate from those of the Seller or any of the Seller's
Affiliates.
(v) As
long as it is the Servicer, the Seller shall maintain records permitting a
determination on a daily basis of the amount and location of any of its funds
which are commingled as permitted under clause (iv)
above.
(vi) The
Board of Directors of the Depositor will take appropriate corporate action
(including holding meetings or acting by unanimous consent) to authorize all of
the Depositor's corporate actions, and minutes shall be maintained by the
Depositor separate and apart from those of the Seller or any of the Seller's
Affiliates.
(vii) The
Depositor shall at all times be adequately capitalized to engage in the
transactions contemplated at its formation. Without limiting the
foregoing, the Depositor shall at all times maintain capital sufficient to pay
its rent, salary of any employee, and any required insurance from the Closing
Date until the termination of the Issuing Entity in accordance with the terms
and conditions of the Trust Agreement.
(viii) The
Depositor shall not incur or guarantee any debt other than under the Sale and
Servicing Agreement, nor shall the Depositor make any loans, pledge its assets
for the benefit of any other entity or hold out its credit as being available to
satisfy the obligations of others, other than as permitted by the Depositor's
articles of incorporation.
(ix) The
Depositor shall not engage in any transaction with the Seller or any of the
Seller's Affiliates on terms more favorable than in a similar transaction
involving a third party.
(x) The
Depositor shall at all times use its own stationery.
(xi) The
Depositor shall always be described as a separate corporation, and never as a
department, division or otherwise of the Seller or any of the Seller's
Affiliates.
(xii) The
Depositor shall act solely in its own corporate name and through its own
authorized officers and agents. Neither the Depositor nor any of
Depositor's Affiliates shall be appointed agent of the Seller, except as
expressly provided for by the Sale and Servicing Agreement and the
Administration Agreement.
15
(xiii) The
data and records (including computer records) used by the Depositor or the
Seller in the collection and administration of the Receivables shall reflect the
Depositor's ownership interest therein.
(xiv) Other
than organizational expenses, the Depositor shall be responsible for the payment
of all expenses including the salaries of its employees, indebtedness and other
obligations incurred by it, including a fair and reasonable allocation for
shared office space.
(xv) The
Depositor shall at all times hold itself out to the public under the Depositor's
own name as a legal entity separate and distinct from the Seller and any of the
Seller's Affiliates and shall correct any known misunderstanding regarding its
separate identity.
(xvi) None
of the Depositor's funds nor any of the funds held by the Seller on behalf of
the Depositor or the holders of the Certificate or the Notes shall be invested
in securities issued by the Seller or any of the Seller's
Affiliates.
(xvii) The
Depositor shall at all times maintain a sufficient number of employees in light
of its contemplated business operations.
(xviii) At
any time the Notes are outstanding, the Seller shall not (A) dissolve or
liquidate, (B) merge or consolidate with any other entity, (C) sell its assets
substantially in their entirety to any other entity or (D) amend its articles of
incorporation, in each case unless the Rating Agency Condition is
satisfied.
(d) The Depositor and the Seller will each
furnish to the other on or before April 30 of each year (commencing April 30,
2009) for so long as any Certificate or Note remains outstanding an Officer's
Certificate to the effect that all of its respective obligations under this
Section 5.04 have been fulfilled throughout the preceding calendar year (or
the period from the Closing Date until December 31, 2008, as applicable), or, if
there has been any default in the fulfillment of any such obligations,
specifying each such default known to the signer thereof and the nature and
status thereof.
(e) The Seller will not transfer or assign
any interest in the Depositor except pursuant to an instrument under which the
transferee or assignee of such interest expressly assumes the performance of all
covenants of the Seller to be performed or observed under this
Section 5.04.
(f) The annual consolidated audited
financial statements of the Depositor and the Seller will reflect the results of
the issuance of the Notes and Certificates in accordance with generally accepted
accounting principles and also disclose that the assets of the Depositor are not
available to pay creditors of the Seller or any other Affiliate of the
Seller.
16
SECTION
5.05. Indemnification. The
Seller shall indemnify the Depositor for any liability as a result of the
failure of a Receivable to be originated in compliance with all requirements of
law and for any breach of any of its representations and warranties contained
herein, other than the representations and warranties made pursuant to Section 3.02(b)
for which the sole remedy shall be provided by Section 6.02;
provided, however, that the
Seller shall indemnify the Depositor for any liability arising from a breach of
Section 3.02(b)(ii),
(iii) and (xxv). These
indemnity obligations shall be in addition to any other obligation that the
Seller may otherwise have.
SECTION
5.06. Regulation AB
Compliance. The Seller shall provide to the Depositor such
information and disclosure regarding the Seller and the Receivables as is
required to enable the Depositor to comply with all of its obligations under
Regulation AB under the Securities Act of 1933 and the Securities Exchange Act
of 1934.
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
SECTION
6.01. Obligations of
Seller. The obligations of the Seller under this Agreement
shall not be affected by reason of any invalidity, illegality or irregularity of
any Receivable.
SECTION
6.02. Repurchase
Events.
(a) The
Seller hereby covenants and agrees with the Depositor for the benefit of the
Depositor, the Indenture Trustee, the Noteholders, the Owner Trustee and the
Certificateholder that the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.02(b)
(other than the representation and warranty contained in Section 3.02(b)(xxv))
in respect of a Receivable shall constitute an event obligating the Seller to
repurchase such Receivable (each, a "Repurchase Event"), at the Purchase Amount
from the Depositor or from the Issuing Entity.
(b) These repurchase obligations of the
Seller shall constitute the sole remedies to the Depositor, the Indenture
Trustee, the Noteholders, the Owner Trustee and the Certificateholder against
the Seller with respect to any Repurchase Event.
(c) The terms and conditions of the
Depositor's rights and obligations to enforce its right of repurchase pursuant
to this Section 6.02 shall be governed by Section 3.02 of the Sale and
Servicing Agreement.
SECTION
6.03. Depositor Assignment of
Repurchased Receivables. With respect to all Receivables
repurchased by the Seller pursuant to this Agreement, the Depositor shall
assign, without recourse, representation or warranty, to the Seller all the
Depositor's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
SECTION
6.04. Issuing
Entity. The Seller acknowledges and agrees that (a) the
Depositor will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Issuing Entity and assign its rights under this Agreement to
the Issuing Entity, (b) the Issuing Entity will, pursuant to the Indenture,
assign such Receivables and such rights to the Indenture Trustee and (c) the
representations and warranties contained in this Agreement and the rights of the
Depositor under this Agreement, including Section 6.02,
are intended to benefit the Issuing Entity, the Certificateholder and the
Noteholders (and may be enforced directly by the Indenture Trustee on behalf of
the Noteholders and by the Owner Trustee on behalf of the Issuing Entity or the
Certificateholder). The Seller hereby consents to all such sales and
assignments.
17
SECTION
6.05. Amendment. This
Agreement may be amended from time to time, with prior written notice to the
Rating Agencies, by a written amendment duly executed and delivered by the
Seller and the Depositor, without the consent of the Noteholders or 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 Certificateholder;
provided that such amendment will not, as expressed in an 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 by the Seller and the
Depositor, with prior written notice to the Rating Agencies, with the consent of
the Noteholders evidencing a majority in the Outstanding Principal Amount of the
Notes 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 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, any payment by Seller hereunder or
collections of payments on Receivables or distributions that are required to be
made for the benefit of Noteholders or the Certificateholder or (ii) reduce the
aforesaid percentage of the Notes and the Certificate which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and the holder of the Certificate.
SECTION
6.06. Waivers. No
failure or delay on the part of the Depositor in exercising any power, right or
remedy under this Agreement or the Assignment shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy.
SECTION
6.07. Notices. All
demands, notices and communications 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
Seller, to Caterpillar Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx,
Xxxxxxxxx, XX 00000-0000, (000) 000-0000; (b) in the case of the Depositor, to
Caterpillar Financial Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxx 00000 (702) 735-2514; (c) 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 (d) 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
6.08. Costs and
Expenses. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, and the Seller agrees to
pay all reasonable out-of-pocket costs and expenses of the Depositor, excluding
fees and expenses of counsel, in connection with the perfection as against third
parties of the Depositor's right, title and interest in and to the Receivables
and the enforcement of any obligation of the Seller hereunder.
18
SECTION
6.09. Representations of Seller
and Depositor. The respective agreements, representations,
warranties and other statements by the Seller and the Depositor set forth in or
made pursuant to this Agreement shall remain in full force and effect and will
survive the closing under Section 2.04.
SECTION
6.10. Confidential
Information. The Depositor agrees that it will neither use nor
disclose to any Person the names and addresses of the Obligors, except in
connection with the enforcement of the Depositor's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement or any other Basic Document
or as required by any of the foregoing or by law.
SECTION
6.11. Headings
.. The various headings in this Agreement are included for convenience
only and shall not affect the meaning or interpretation of any provision of this
Agreement.
SECTION
6.12. Governing
Law. THIS AGREEMENT AND THE ASSIGNMENT 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 AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION
6.13. Counterparts. This
Agreement may be executed in two or more counterparts and by different parties
on separate counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
[Signature
Page Follows]
19
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers duly authorized as of the date first above
written.
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Depositor
By /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Seller
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Executive
Vice President and Chief Financial Officer
SCHEDULE
A
SCHEDULE
OF RECEIVABLES
Schedule A-1
EXHIBIT
A
ASSIGNMENT
OF RECEIVABLES
April
29, 2008
For
value received, in accordance with the Purchase Agreement, dated as of April 1,
2008 (the "Purchase Agreement"), between the undersigned, as seller, and
Caterpillar Financial Funding Corporation, as purchaser (the "Depositor"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto the
Depositor, without recourse, (i) all right, title and interest of the
undersigned in and to the Receivables, and all monies (including accrued
interest) due thereunder on and after the Cut-off Date; (ii) the interests
of the undersigned in the security interests in the Transaction Equipment
granted by Obligors pursuant to the Receivables and any other interest of the
undersigned in such Transaction Equipment, including any Liquidation Proceeds;
(iii) the interest and rights of the undersigned in any 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; (iv) the interest of the undersigned in any
proceeds from recourse to, or other payment by, Dealers on Receivables; and
(v) the proceeds of any and all of the foregoing.
This
Assignment is made pursuant to and upon the representations, warranties and
agreements on the part of the undersigned contained in the Purchase Agreement
and is to be governed by the Purchase Agreement.
Capitalized
terms used herein and not otherwise defined shall have the meaning assigned to
them in the Purchase Agreement.
IN
WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed
as of the date first set forth above.
CATERPILLAR
FINANCIAL SERVICES
CORPORATION
By: _________________________________
Name:
Title:
1
