AMENDED AND RESTATED TRUST AGREEMENT dated as of May 25, 2004, between
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as Seller,
and CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Administration Agreement" means the Administration Agreement dated as
of May 1, 2004, among the Administrator, the Trust, the Seller and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Administrator" means Caterpillar Financial Services Corporation, a
Delaware corporation, or any successor Administrator under the Administration
Agreement.
"Agreement" shall mean this Trust Agreement, as the same may be amended
and supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale and
Servicing Agreement, the Indenture, the Administration Agreement, the
Depository Agreement, the Custodial Agreement, the Notes, the Certificates
and the other documents and certificates delivered in connection therewith.
"Benefit Plan Investor" shall have the meaning assigned to such term in
Section 11.13.
"Certificate Balance" shall have the meaning assigned to such term in
the Sale and Servicing Agreement.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.01.
"Certificateholder" shall mean the registered holder of the Certificate.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B which has been filed for the Trust pursuant to Section 3810(a)
of the Statutory Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.04.
"Certificateholder Certification" shall mean a certification with
respect to non-foreign status and Benefit Plan Investor status in the form of
Exhibit C hereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at c/o XX
Xxxxxx Xxxxx, 500 Xxxxxxx Xxxxxxxxxx Road, OPS4, 0xx Xxxxx, Xxxxxx, Xxxxxxxx
00000; or at such other address as the Owner Trustee may designate by notice
to the Certificateholder and the Seller, or the principal corporate trust
office of any successor Owner Trustee (the address of which the successor
owner trustee will notify the Seller and the Owner).
"Depository Agreement" means the agreement among the Trust, the
Indenture Trustee, the Administrator and The Depository Trust Company, dated
May 24, 2004.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Indenture Trustee" shall mean U.S. Bank National Association, not in
its individual capacity but solely as Indenture Trustee under the Indenture,
and any successor Indenture Trustee under the Indenture.
"Original Trust Agreement" shall mean the Trust Agreement dated as of
May 21, 2004, between Seller and Owner Trustee.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from
time to time in the Trust Accounts and the Certificate Distribution Account
and all other property of the Trust from time to time, including any rights
of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement.
"Owner Trustee" shall mean Chase Manhattan Bank USA, National
Association, a national banking association, not in its individual capacity
but solely as owner trustee under this Agreement, and any successor Owner
Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to Section 3.09 and shall initially be JPMorgan Chase Bank.
"Record Date" shall mean, with respect to any Distribution Date, at the
close of business on the last calendar day of the month preceding the month
in which such Distribution Date occurs.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement among the Trust, the Seller, as seller, and Caterpillar Financial
Services Corporation, as servicer, dated as of May 1, 2004, as the same may
be amended, modified or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" shall mean Caterpillar Financial Funding Corporation in its
capacity as Seller hereunder.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code § 3801 et seq., as the same may be amended from
time to time.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
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.
(b) All terms defined in this Agreement shall have the defined meanings
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 certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or 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 certificate
or 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 certificate or 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 and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall
mean "including without limitation."
(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
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as
"Caterpillar Financial Asset Trust 2004-A," in which name the Owner Trustee
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Seller.
Section 2.03. Purpose and Powers. (a) The purpose of the Trust is to
engage in the following activities:
(i) to issue the Class A-1 Notes, Class A-2 Notes, the Class A-3 Notes and
the Class B Notes pursuant to the Indenture and the Certificate pursuant to
this Agreement, and to sell $183,400,000 aggregate principal amount of the
Class A-1 Notes, $164,000,000 aggregate principal amount of Class A-2 Notes,
$283,300,000 aggregate principal amount of the Class A-3 Notes, $18,161,000
aggregate principal amount of Class B Notes to or upon the written order of
the Seller pursuant to Section 2.01 of the Sale and Servicing Agreement and
issue the Certificate with an initial Certificate Balance of $9,881,297 to or
upon the written order of the Seller pursuant to Section 2.01 of the Sale and
Servicing Agreement;
(ii) with the proceeds from capital contributions from the Seller to pay the
organizational, start-up and transactional expenses of the Trust and to fund
the Reserve Account;
(iii) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to the terms of the Sale and Servicing Agreement
and this Agreement any portion of the Trust Estate released from the Lien of,
and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic Documents to
which it is to be a party;
(v) to engage in those activities, including entering into agreements, that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in such other
activities as may be required in connection with conservation of the Owner
Trust Estate and the making of distributions to the Certificateholder and the
Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Seller hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. Pursuant to
the Original Trust Agreement, the Seller sold, assigned, transferred,
conveyed and set over to the Owner Trustee, as of the date thereof, the sum
of $100. The Owner Trustee hereby acknowledges receipt in trust from the
Seller, as of the date of the Original Trust Agreement, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall
be deposited in the Certificate Distribution Account. The Seller shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholder,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a statutory trust
under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust. It is the intention of the
parties hereto that, for income and franchise tax purposes, the Trust shall
be treated as a "disregarded entity" and, therefor, shall be disregarded as
an entity separate from the Certificateholder. The parties agree that,
unless otherwise required by appropriate tax authorities, the Trust will file
or cause to be filed annual or other necessary returns, reports and other
forms consistent with the characterization of the Trust as a disregarded
entity for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Statutory Trust Statute with respect to accomplishing the purposes of the
Trust.
Section 2.07. Liability of the Certificateholder. The Certificateholder
shall not have any personal liability for any liability or obligation of the
Trust.
Section 2.08. Title to Trust Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee
on behalf of the Trust shall be located in the State of Delaware or the State
of New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or New
York, and payments will be made by the Trust only from Delaware or New York.
The only office of the Trust will be at the Corporate Trust Office in
Delaware.
Section 2.10. Representations and Warranties of Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller is duly organized and validly existing as a corporation in
good standing under the laws of the State of Nevada, with power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted.
(b) 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 failure to so qualify or to obtain such license or
approval would render any Receivable unenforceable that would otherwise be
enforceable by the Seller, the Servicer or the Owner Trustee.
(c) 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 to be sold and assigned to and deposited with
the Trust and the Seller shall have duly authorized such sale and assignment
and deposit to the Trust 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.
(d) The consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of incorporation or
by-laws of 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
pursuant to 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.
(e) 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 or any of the Basic Documents, (ii) seek to
prevent the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, 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 or any of the Basic Documents.
Section 2.11. Amended and Restated Trust Agreement. This Agreement
amends and restates in its entirety the Original Trust Agreement.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Seller pursuant to Section 2.05 and thereafter so long as
the Seller remains the "Certificateholder," the Seller shall be the sole
beneficiary of the Trust. Notwithstanding any other provision of this
Agreement, the interest of the Seller in the Trust (including its interest by
virtue of being the Holder of the Certificate) shall be transferable only in
whole and any successor to the Seller pursuant to such a transfer shall
thenceforth be deemed the Seller for purposes of this Agreement. No such
transfer shall be effective until such time as written notice thereof signed
by both the transferor and transferee and an executed copy of the
Certificateholder Certification are delivered to the Owner Trustee.
Section 3.02. Form of Certificates. The Certificate shall be issued in
an original Certificate Balance of $9,881,297. The Certificate shall be
executed on behalf of the Trust by manual or facsimile signature of a Trust
Officer of the Owner Trustee. The Certificate bearing the manual or
facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall, when duly authenticated pursuant to Section 3.03, be validly
issued and entitled to the benefits of this Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of the Certificate or did not hold such
offices at the date of authentication and delivery of the Certificate.
Section 3.03. Authentication of the Certificate. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificate in a
principal amount equal to the initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order
of the Seller, signed by its Chairman of the Board, its President, any Vice
President, its Treasurer, its Secretary or any Assistant Treasurer, without
further corporate action by the Seller. The Certificate shall not entitle
its Holder to any benefit under this Agreement, or be valid for any purpose,
unless there shall appear on the Certificate a certificate of authentication
substantially in the form set forth in Exhibit A executed by the Owner
Trustee or the Owner Trustee's authentication agent, by manual signature;
such authentication shall constitute conclusive evidence that the Certificate
shall have been duly authenticated and delivered hereunder. The Certificate
shall be dated the date of its authentication.
Section 3.04. Registration of Transfer of the Certificate. The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.08, a Certificate Register in which, subject
to such reasonable regulations as it may prescribe, the Owner Trustee shall
provide for the registration of the Certificate and of transfers of the
Certificate as herein provided. JPMorgan Chase Bank shall be the initial
Certificate Registrar.
Upon surrender for registration of transfer of the Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, a new Certificate of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. The Owner
Trustee shall not register a transfer of any Certificate unless the
transferee of the Certificate delivers to the Certificate Registrar and
authenticating agent an executed Certificateholder Certification.
The Certificate presented or surrendered for registration of transfer
shall be accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the
Holder or its attorney duly authorized in writing, along with a
Certificateholder Certification duly executed by the transferee of such
Certificate. The Certificate surrendered for registration of transfer shall
be cancelled and subsequently disposed of by the Owner Trustee in accordance
with its customary practice.
No service charge shall be made for any registration of transfer of the
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of the Certificate.
The Certificate has not been and will not be registered under the
Securities Act, or any state securities laws and neither the Certificate nor
any interest therein may be offered, sold, pledged or otherwise transferred
except in accordance with applicable securities laws of any state of the
United States and in reliance on the private placement exemption of the
Securities Act. The Trustee may (but shall not be obligated) at any time or
times request an Opinion of Counsel as to compliance with this restriction in
connection with any transfer of a Certificate.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate. If (a)
the Certificate is mutilated and shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of the Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee
such security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that the Certificate shall have been
acquired by a protected purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee, or the Owner Trustee's authenticating
agent, shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new
Certificate under this Section, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
Section 3.06. Persons Deemed Owner. Prior to due presentation of the
Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name a Certificate is
registered in the Certificate Register as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
Section 3.07. Access to List of Certificateholder's Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and
the Seller, within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Seller in writing, the name and address of
the Certificateholder as of the most recent Record Date. The Holder, by
receiving and holding the Certificate, shall be deemed to have agreed not to
hold either the Seller or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the Borough of Manhattan, in the City of New York, an office or
offices or agency or agencies where notices and demands to or upon the Owner
Trustee in respect of the Certificate and the Basic Documents may be served.
The Owner Trustee initially designates JPMorgan Chase Bank, 0 Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice to the Seller of
any change in the location of the Certificate Register or any such office or
agency.
Section 3.09. Appointment of Paying Agents. The Paying Agent shall make
distributions to the Certificateholder from the Certificate Distribution
Account pursuant to Section 5.02 and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be JPMorgan Chase Bank, and any
co-paying agent chosen by JPMorgan Chase Bank, and acceptable to the Owner
Trustee. JPMorgan Chase Bank shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Owner Trustee. In the event that
JPMorgan Chase Bank shall no longer be the Paying Agent, the Owner Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or
trust company). The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will
hold all sums, if any, held by it for payment to the Certificateholder in
trust for the benefit of the Certificateholder entitled thereto until such
sums shall be paid to the Certificateholder. The Paying Agent shall return
all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the Owner
Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to
the Owner Trustee also in its role as Paying Agent, for so long as the Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholder with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not
take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholder in writing of the
proposed action and the Holder shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that the Holder has
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on a Receivable) and the compromise of any action, claim or
lawsuit brought by or against the Trust (other than an action to collect on a
Receivable);
(b) the election by the Trust to file an amendment to the Certificate of
Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder;
(e) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a
manner that would not materially adversely affect the interests of the
Certificateholder; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Trustee or the appointment pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable.
Section 4.02. Action By the Certificateholder with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the
direction of the Certificateholder, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 8 thereof, (b) appoint a
successor Administrator pursuant to Section 8 of the Administration
Agreement, (c) remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 8.01 thereof or (d) except as expressly provided in the
Basic Documents, sell the Receivables after the termination of the Indenture.
The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Certificateholder.
Section 4.03. Action By Certificateholder with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the
Certificateholder and the delivery to the Owner Trustee by the
Certificateholder of a certificate certifying that the Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions on Certificateholder's Power. The
Certificateholder shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the Basic Documents or would be contrary to Section 2.03 nor shall the Owner
Trustee be obligated to follow any such direction, if given.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account. The Owner Trustee, for the
benefit of the Certificateholder, shall establish and maintain in the name of
the Trust an Eligible Securities Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholder.
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee for the benefit of the Certificateholder. If, at any
time, the Certificate Distribution Account ceases to be an Eligible
Securities Account, the Owner Trustee shall within 10 Business Days following
notification of such occurrence (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Certificate Distribution Account as an Eligible Securities Account and shall
transfer any cash and/or any investments to such new Certificate Distribution
Account.
Section 5.02. Application of Trust Funds. (a) On each Distribution
Date, the Owner Trustee will distribute amounts deposited in the Certificate
Distribution Account pursuant to Sections 5.04 and 5.05 of the Sale and
Servicing Agreement or pursuant to Section 5.04(b) or 5.04(c) of the
Indenture on or before such Distribution Date as follows:
(i) to the Certificateholder, to the extent necessary to reduce the
Certificate Balance of the Certificate to zero, an amount equal to the excess
if any, of the Regular Principal Distribution Amount for such Distribution
Date over amounts distributable to the Noteholders pursuant to Section
5.04(c) of the Sale and Servicing Agreement on such Distribution Date; and
(ii) to the Seller, any remaining funds on deposit in the Certificate
Distribution Account after distribution to the Certificateholder pursuant to
the clause (i) above.
(b) On each Distribution Date, the Owner Trustee shall send to the
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.07(a) of the Sale and Servicing Agreement on such
Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to the Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance
with this Section. The Owner Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholder
sufficient funds for the payment of any tax that is legally owed or required
to be withheld by the Trust (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
the Certificateholder shall be treated as cash distributed to the
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax
is payable with respect to a distribution, the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this clause (c). In the
event that the Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with the
Certificateholder in making such claim so long as the Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to the Certificateholder on any
Distribution Date shall be made to the Certificateholder of record on the
preceding Record Date either by wire transfer, in immediately available
funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if the Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date or, if not, by check mailed to
the Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section 5.04. No Segregation of Monies; No Interest. Subject to
Section 5.01 and 5.02, monies received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
Section 5.05. Accounting and Report to the Noteholders, the
Certificateholder, the Internal Revenue Service and Others. The Owner
Trustee shall (a) maintain (or cause to be maintained) the books of the Trust
on a fiscal year basis ending December 31, (or such other period as may be
required by applicable law), with the first year being a short year ending
December 31, 2004, and on the accrual method of accounting, (b) deliver to
the Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable the
Certificateholder to prepare its federal and state income tax returns, and
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so
as to maintain the Trust's characterization as a disregarded entity for
federal income tax purposes and (c) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.02(c) with
respect to distributions from the Trust.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party,
or any amendment thereto or other agreement, in each case, in such form as
the Seller shall approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator directs
in writing with respect to the Basic Documents.
Section 6.02. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Agreement and the Basic Documents and to administer the
Trust in the interest of the Certificateholder, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
Section 6.03. Action Upon Instruction. (a) Subject to Article IV, the
Certificateholder may, by written instruction, direct the Owner Trustee in
the management of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholder pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder or
under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to result in liability on the part of the Owner Trustee or is contrary to the
terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholder
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholder received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the Basic Documents, as it shall deem to be in the
best interest of the Certificateholder, and shall have no liability to any
Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits
any determination by the Owner Trustee or is silent or is incomplete as to
the course of action that the Owner Trustee is required to take with respect
to a particular set of facts, the Owner Trustee may give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholder
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement
or the Basic Documents, as it shall deem to be in the best interests of the
Certificateholder and shall have no liability to any Person for such action
or inaction.
Section 6.04. No Duties Except as Specified in This Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.03;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or
file any Securities and Exchange Commission filing for the Trust or to record
this Agreement or any Basic Document. The Owner Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
Section 6.05. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) in accordance with the
Basic Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust being treated as a association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes. The
Owner Trustee and the Seller agree that no election to treat the Trust as an
association (or publicly traded partnership) taxable as a corporation for
United States Federal income tax purposes or any relevant state tax purposes
shall be made by or on behalf of the Trust. The Certificateholder shall not
direct the Owner Trustee or the Seller to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct or negligence or (ii) in the case
of the inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made by
a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator or the Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or
under any Basic Document, if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by
the Seller or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificates, and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any Noteholder or to
the Certificateholder, other than as expressly provided for herein and in the
Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Indenture Trustee or the Servicer under any of the
Basic Documents or otherwise, and the Owner Trustee shall have no obligation
or liability to perform the obligations of the Trust under this Agreement or
the Basic Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the Indenture
or the Servicer under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or direction of
the Certificateholder, unless the Certificateholder has offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish
(a) to the Certificateholder promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to the Indenture Trustee
promptly upon written request therefor, copies of the Purchase Agreement, the
Sale and Servicing Agreement, the Administration Agreement and the Trust
Agreement.
Section 7.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Certificateholder that:
(a) It is a banking association duly organized and validly existing in good
standing under the federal laws of the United States. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement has been executed
and delivered by one of its officers who is duly authorized to execute and
deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
Section 7.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond, or other document or paper believed by it to be genuine and believed by
it to be signed by the proper party or parties. The Owner Trustee may accept
a certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and
effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president
or by the treasurer or other authorized officers of the relevant party, as to
such fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such persons.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Chase Manhattan
Bank USA, National Association acts solely as Owner Trustee hereunder and not
in its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for the Certificate, Notes or
Receivables. The recitals contained herein and in the Certificate (other
than the signature and counter-signature of the Owner Trustee on the
Certificate and its representations and warranties in Section 7.03) shall not
be taken as the statements of the Owner Trustee and the Owner Trustee assumes
no responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, or of
the Certificate (other than the signature and countersignature of the Owner
Trustee on the Certificate), or the Notes or of any other Basic Document or
of any Receivable or related documents. The Owner Trustee shall at no time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and priority
of any security interest created by any Receivable in any Financed Equipment
or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to the Certificateholder under this
Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed
Equipment; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of
any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Seller or
the Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Indenture Trustee or
the Servicer or any subservicer taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own the Certificate and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of the Certificate or the Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Seller and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Seller for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder; provided, however, that the Owner Trustee's right to enforce such
obligation shall be subject to the provisions of Section 11.09.
Section 8.02. Indemnification. The Seller shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may at any time be imposed
on, incurred by, or asserted against the Owner Trustee or any Indemnified
Party in any way relating to or arising out of this Agreement, the Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Seller shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the
matters described in the third sentence of Section 7.01; provided, however,
that the Owner Trustee's right to enforce such obligation shall be subject to
the provisions of Section 11.09. The indemnities contained in this
Section shall survive the resignation or termination of the Owner Trustee or
the termination of this Agreement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Owner Trustee's choice of legal counsel shall be subject to the approval of
the Seller, which approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VIII shall be deemed not to be a part
of the Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII and Section 11.09) and the Trust shall terminate and be of
no further force or effect, upon the final distribution by the Owner Trustee
of all moneys or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing Agreement
and Article V. Any money or other property held as part of the Owner Trust
Estate following such distribution shall be distributed to the Seller. The
bankruptcy, liquidation, dissolution, death or incapacity of the
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, or (y) entitle the Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 9.01(a), neither the Seller nor the
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholder shall surrender the Certificate to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to the Certificateholder mailed within
five Business Days of receipt of notice of such termination from the Servicer
given pursuant to Section 9.01(c) of the Sale and Servicing Agreement,
stating (i) the Distribution Date upon or with respect to which final payment
of the Certificate shall be made upon presentation and surrender of the
Certificate at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Certificate at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to
the Certificate Registrar (if other than the Owner Trustee) and the Paying
Agent at the time such notice is given to the Certificateholder. Upon
presentation and surrender of the Certificate, the Paying Agent shall cause
to be distributed to the Certificateholder amounts distributable on such
Distribution Date pursuant to Section 5.02.
In the event that the Certificateholder shall not surrender the
Certificate for cancellation within six months after the date specified
in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the Certificateholder to surrender the
Certificate for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice the
Certificate shall not have been surrendered for cancellation, the Owner
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the Certificateholder concerning
surrender of the Certificate, and the cost thereof shall be paid out of
the funds and other assets that shall remain subject to this
Agreement. Any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Owner Trustee to the Seller.
(d) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate
of cancellation with the Secretary of State in accordance with the provisions
of Section 3810 of the Statutory Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent which has) a rating of at least
Baa3 by Moody's and at least BBB- by Standard & Poor's. If such corporation
shall publish reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Seller, the Certificateholder and the
Administrator; provided, however, that such resignation and discharge shall
only be effective upon the appointment of a successor Owner Trustee. Upon
receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Seller, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Seller may remove the Owner Trustee.
If the Seller shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Seller shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and
one copy to the successor Owner Trustee and the Seller shall pay all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Seller shall provide notice
of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Seller, the Certificateholder and to its predecessor Owner Trustee, with
a copy thereof delivered to the Administrator, an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees
and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement; and the Seller and the
predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights,
powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Seller shall mail notice of the successor of such Owner
Trustee to the Certificateholder, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Seller shall fail to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense
of the Seller.
Section 10.04. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder;
provided such corporation shall be eligible pursuant to Section 10.01,
without the execution or filing of any instrument or any further act on the
part of any of the parties hereto; anything herein to the contrary
notwithstanding; provided, further, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Equipment may at the time be
located, the Seller and the Owner Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title
to the Trust, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Seller and the Owner Trustee may consider necessary or desirable. If the
Seller shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties, and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement; and
(iii) the Seller and the Owner Trustee acting jointly may at any time accept
the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Owner Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Seller, the
Owner and the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments. This Agreement may be amended
by the Seller and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholder to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that such amendment shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder or the Owner or the federal tax
characteristics of the Notes.
This Agreement may also be amended from time to time by the Seller and
the Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Principal Amount of the Notes, 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; provided, however, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the
Certificateholder or (b) reduce the aforesaid percentage of the Outstanding
Principal Amount of the Notes or the Certificate required to consent to any
such amendment, without the consent of the holders of all the outstanding
Notes and the Certificate.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders, the
Certificateholder or the Indenture Trustee pursuant to this Section to
approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or any other
Basic Document, the Owner Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the other Basic Documents. The
Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 11.02. No Legal Title to Owner Trust Estate in the Owner. The
Certificateholder shall not have legal title to any part of the Owner Trust
Estate. The Certificateholder shall be entitled to receive distributions
with respect to its ownership interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any
right, title, and interest of the Certificateholder to and in its ownership
interest in the Owner Trust Estate shall operate to terminate this Agreement
or the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Owner Trust Estate.
Section 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Certificateholder, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions
or provisions contained herein.
Section 11.04. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days
after mailing if mailed by certified mail, postage prepaid (except that
notice to the Owner Trustee shall be deemed given only upon actual receipt by
the Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust
Office; if to the Seller, addressed to Caterpillar Financial Funding
Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000; or,
as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
(b) Any notice required or permitted to be given to the Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.06. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Seller, the Owner Trustee and its successors and the Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by the
Certificateholder shall bind the successors and assigns of the
Certificateholder.
Section 11.08. [Intentionally Omitted].
Section 11.09. No Petition. Notwithstanding any prior termination of this
Agreement, the Owner Trustee, the Certificateholder, by accepting the
Certificate, and the Indenture Trustee and each Noteholder by accepting the
benefits of this Agreement, hereby covenant and agree that they will not,
prior to the date which is one year and one day after the termination of the
Trust, institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Certificate, the Notes, this
Agreement or any of the Basic Documents.
Section 11.10. No Recourse. The Certificateholder by accepting the
Certificate acknowledges that the Certificate represents a beneficial
interest in the Trust only and does not represent an interest in or
obligation of the Seller, the Servicer, the Administrator, the Owner Trustee,
the Indenture Trustee or any Affiliate thereof, and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificate or the other Basic Documents.
Section 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.13. Certificate Transfer Restrictions. (a) The Certificate may
not be acquired by or for the account of (i) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), whether or not such plan is subject to the
provisions of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1)
of the Code) subject to Section 4975 of the Code, or (iii) any entity whose
underlying assets include "plan assets" by reason of any such plan's
investment in the entity and the application of U.S. Department of Labor (the
"DOL") Regulation Section 2510.3-101 (the "Plan Asset Regulation") (excluding
any investment company that is registered under the Investment Company Act of
1940, as amended) (each, a "Benefit Plan Investor"), except as provided in
the following sentence. By accepting and holding the Certificate, the Holder
thereof shall be deemed to have represented, warranted and covenanted that it
is (A) not a Benefit Plan Investor, and that no assets of any Benefit Plan
Investor were used to acquire the Certificate, or (B) it is an insurance
company acting on behalf of its general account, and (i) on the date it
acquires the Certificate, less than 25% of the assets of such general account
constitute Plan Assets and (ii) if at any time during any calendar quarter
after the initial acquisition of the Certificate, 25% or more of the assets
of such general account constitute "plan assets" (as defined in the Plan
Asset Regulation) and no exemption or exception from the prohibited
transaction rules applies to the continued holding of the Certificate under
Section 401(c) of ERISA and final regulations thereunder or an exemption or
regulation issued by the DOL under ERISA, then such insurance company will
dispose of the Certificate then held in its general account by the end of the
next following calendar quarter, and shall deliver to the Owner Trustee at
the time of acquisition of the Certificate a duly executed Certificateholder
Certification in the form set forth in Exhibit C.
(b) The Certificate may not be acquired by or for the account of an
individual or entity that is not a U.S. person as defined in Section
7701(a)(30) of the Code. By accepting and holding the Certificate, the
Holder shall be deemed to have represented and warranted under penalties of
perjury that it (or, if it is acting as a nominee, the beneficial owner) is a
U.S. person and shall deliver to the Owner Trustee, at the time of
acquisition of the Certificate and thereafter from time to time upon request,
a duly executed Certificateholder Certification in the form set forth in
Exhibit C.
Section 11.14. Seller Payment Obligation. The Seller shall be responsible
for payment of the Administrator's fees under the Administration Agreement
(to the extent not paid pursuant to Section 5.04 of the Sale and Servicing
Agreement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
[Signature Page Follows]
1
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as
of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee,
By:
Name: Xxxx X. Xxxxxx
Title: Vice President
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Seller,
By:
Name:
Title:
8
EXHIBIT A
FORM OF CERTIFICATE
NUMBER $[___________]
R-1
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS ONLY TRANSFERABLE IN WHOLE
AND IS SUBJECT TO RESTRICTIONS ON TRANSFER
SET FORTH IN THE TRUST AGREEMENT
THIS CERTIFICATE HAS NOT BEEN REGISTERED AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED UNLESS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM THE
SECURITIES ACT.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")), WHETHER OR NOT SUCH PLAN
IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN (AS DEFINED IN
SECTION 4975(e)(1) OF THE CODE) SUBJECT TO SECTION 4975 OF THE CODE, OR (iii)
ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY
SUCH PLAN'S INVESTMENT IN THE ENTITY AND THE APPLICATION OF U.S. DEPARTMENT
OF LABOR (THE "DOL") REGULATION SECTION 2510.3-101 (THE "PLAN ASSET
REGULATION") (EXCLUDING ANY INVESTMENT COMPANY THAT IS REGISTERED UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED) (EACH, A "BENEFIT PLAN
INVESTOR"), EXCEPT AS PROVIDED IN THE FOLLOWING SENTENCE. BY ACCEPTING AND
HOLDING THIS CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED TO HAVE
REPRESENTED, WARRANTED AND COVENANTED THAT IT IS (A) NOT A BENEFIT PLAN
INVESTOR, AND THAT NO ASSETS OF ANY BENEFIT PLAN INVESTOR WERE USED TO
ACQUIRE THIS CERTIFICATE, OR (B) IT IS AN INSURANCE COMPANY ACTING ON BEHALF
OF ITS GENERAL ACCOUNT, AND (i) ON THE DATE IT ACQUIRES THIS CERTIFICATE,
LESS THAN 25% OF THE ASSETS OF SUCH GENERAL ACCOUNT CONSTITUTE PLAN ASSETS
AND (ii) IF AT ANY TIME DURING ANY CALENDAR QUARTER AFTER THE INITIAL
ACQUISITION OF THIS CERTIFICATE, 25% OR MORE OF THE ASSETS OF SUCH GENERAL
ACCOUNT CONSTITUTE "PLAN ASSETS" (AS DEFINED IN THE PLAN ASSET REGULATION)
AND NO EXEMPTION OR EXCEPTION FROM THE PROHIBITED TRANSACTION RULES APPLIES
TO THE CONTINUED HOLDING OF THIS CERTIFICATE UNDER SECTION 401(c) OF ERISA
AND FINAL REGULATIONS THEREUNDER OR AN EXEMPTION OR REGULATION ISSUED BY THE
DOL UNDER ERISA, THEN SUCH INSURANCE COMPANY WILL DISPOSE OF THIS CERTIFICATE
BY THE END OF THE NEXT FOLLOWING CALENDAR QUARTER, AND SHALL DELIVER TO THE
OWNER TRUSTEE AT THE TIME OF ACQUISITION OF THIS CERTIFICATE A DULY EXECUTED
CERTIFICATEHOLDER CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT C TO THE
TRUST AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN
INDIVIDUAL OR ENTITY THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION
7701(a)(30) OF THE CODE. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF IT
IS ACTING AS A NOMINEE, THE BENEFICIAL OWNER) IS A U.S. PERSON AND SHALL
DELIVER TO THE OWNER TRUSTEE, AT THE TIME OF ACQUISITION OF THIS CERTIFICATE
AND THEREAFTER FROM TIME TO TIME UPON REQUEST, A DULY EXECUTED CERTIFICATION
IN THE FORM SET FORTH IN EXHIBIT C TO THE TRUST AGREEMENT.
THE CERTIFICATE BALANCE OF THIS CERTIFICATE IS DISTRIBUTABLE IN
INSTALLMENTS AS SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CATERPILLAR FINANCIAL ASSET TRUST 2004-A
ASSET BACKED CERTIFICATE
evidencing an undivided interest in the Trust, as defined below, the property
of which includes a pool of retail installment sale contracts and finance
leases secured by new and used machinery and certain monies due or received
thereunder and sold to the Trust (as defined below) by Caterpillar Financial
Funding Corporation.
(This Certificate does not represent an interest in or obligation of
Caterpillar Financial Funding Corporation, Caterpillar Financial Services
Corporation, Caterpillar Inc. or any of their respective affiliates, except
to the extent described below.)
THIS CERTIFIES THAT ______________________________________ is the
registered Holder of ______________________________________ DOLLARS
($___________) nonassessable, fully-paid, undivided interest in Caterpillar
Financial Asset Trust 2004-A (the "Trust") formed by Caterpillar Financial
Funding Corporation, a Nevada corporation (the "Seller").
The Trust was created pursuant to an Amended and Restated Trust
Agreement dated as of May 1, 2004 (the "Trust Agreement"), between the Seller
and Chase Manhattan Bank USA, National Association, as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement or the Sale and Servicing Agreement dated as of May 1, 2004 (the
"Sale and Servicing Agreement"), among the Trust, the Seller and Caterpillar
Financial Services Corporation, as servicer (the "Servicer"), as applicable.
This Certificate is the duly authorized Certificate designated as the
"Asset Backed Certificate" (herein called the "Certificate"). Also issued
under the Indenture dated as of May 1, 2004, between the Trust and U.S. Bank
National Association, as indenture trustee, are Notes designated as "Class
A-1 1.37040% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 2.18%
Asset Backed Notes" (the "Class A-2 Notes"), "Class A-3 3.13% Asset Backed
Notes" (the "Class A-3 Notes") and "Class B 3.71% Asset Backed Notes" (the
"Class B Notes"; together with the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. The property of
the Trust includes a pool of retail installment sale contracts and finance
leases secured by new and used equipment (the "Receivables"), all monies
received on or after May 1, 2004 from payments on the Receivables, security
interests in the equipment financed thereby and certain other
cross-collateralized equipment, certain bank accounts and the proceeds
thereof, proceeds from claims on certain insurance policies and certain other
rights under the Trust Agreement and the Sale and Servicing Agreement, all
right, title, and interest of the Seller in and to the Purchase Agreement
dated as of May 1, 2004 between Caterpillar Financial Services Corporation
and the Seller and all proceeds of the foregoing. The Holder of this
Certificate acknowledges and agrees that its rights to receive distributions
in respect of this Certificate are subordinated to the rights of the
Noteholders as described in the Sale and Servicing Agreement and the
Indenture.
Under the Trust Agreement, there will be distributed on the 25th day of
each month or, if such day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on June 25, 2004 to the Person in whose name
this Certificate is registered at the close of business on the last calendar
day of the month preceding the month in which such Distribution Date occurs
(the "Record Date") the amount to be distributed to the Certificateholder on
such Distribution Date.
Notwithstanding any prior termination of the Trust Agreement, the
Certificateholder, by its acceptance of this Certificate, covenants and
agrees that it shall not, prior to the date which is one year and one day
after the termination of the Trust, institute against the Seller or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to this
Certificate, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the office or agency maintained for the purpose by the Owner Trustee in the
Borough of Manhattan, The City of New York.
This Certificate does not represent an obligation of, or an interest
in, the Seller, the Servicer, Caterpillar Inc., the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or
in the Trust Agreement or the Basic Documents. In addition, this Certificate
is not guaranteed by any governmental agency or instrumentality and is
limited in right of payment to certain collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Sale and Servicing Agreement and the Trust Agreement. This
Certificate is limited in right of payment to certain collections and
recoveries respecting the Receivables, all as more specifically set forth in
the Sale and Servicing Agreement and the Trust Agreement. A copy of each of
the Sale and Servicing Agreement and the Trust Agreement may be examined
during normal business hours at the principal office of the Seller, and at
such other places, if any, designated by the Seller, by the Certificateholder
upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Seller and the rights of the Certificateholder under the Trust Agreement
at any time by the Seller and the Owner Trustee with the consent of the
holders of the Notes evidencing a majority of the outstanding Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the Borough of Manhattan, in the City of New York,
accompanied by a written instrument of transfer in force satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing and a duly
executed Certificateholder Certification of the transferee thereof, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. No service charge will be made for any such registration of
transfer, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith. The initial Certificate Registrar appointed under
the Trust Agreement is JPMorgan Chase Bank, New York, New York.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to the
Certificateholder of all amounts required to be paid to it pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of
all property held as part of the Trust. The Servicer of the Receivables may
at its option purchase the corpus of the Trust at a price specified in the
Sale and Servicing Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificate;
provided, however, such right of purchase is exercisable only on any
Distribution Date on which the Note Value is 10% or less of the Initial Note
Value .
This Certificate may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), whether or not such plan
is subject to the provisions of Title I of ERISA, (ii) a plan (as defined in
Section 4975(e)(1) of the Code) subject to Section 4975 of the Code, or (iii)
any entity whose underlying assets include "plan assets" by reason of any
such plan's investment in the entity and the application of U.S. Department
of Labor (the "DOL") Regulation Section 2510.3-101 (the "Plan Asset
Regulation") (excluding any investment company that is registered under the
Investment Company Act of 1940, as amended) (each, a "Benefit Plan
Investor"), except as provided in the following sentence. By accepting and
holding this Certificate, the Holder thereof shall be deemed to have
represented, warranted and covenanted that (A) it is not a Benefit Plan
Investor, and that no assets of any Benefit Plan Investor were used to
acquire this Certificate, or (B) it is an insurance company acting on behalf
of its general account, and (i) on the date it acquires this Certificate,
less than 25% of the assets of such general account constitute Plan Assets
and (ii) if at any time during any calendar quarter after the initial
acquisition of this Certificate, 25% or more of the assets of such general
account constitute "plan assets" (as defined in the Plan Asset Regulation)
and no exemption or exception from the prohibited transaction rules applies
to the continued holding of this Certificate under Section 401(c) of ERISA
and final regulations thereunder or an exemption or regulation issued by the
DOL under ERISA, then such insurance company will dispose of this Certificate
by the end of the next following calendar quarter, and shall deliver to the
Owner Trustee at the time of acquisition of this Certificate a duly executed
Certificateholder Certification in the form set forth in Exhibit C to the
Trust Agreement.
This Certificate may not be acquired by or for the account of an
individual or entity that is not a U.S. person as defined in Section
7701(a)(30) of the Code. By accepting and holding this Certificate, the
Holder shall be deemed to have represented and warranted under penalties of
perjury that it (or, if it is acting as a nominee, the beneficial owner) is a
U.S. person and shall deliver to the Owner Trustee, at the time of
acquisition of this Certificate and thereafter from time to time upon
request, a duly executed Certificateholder Certification in the form set
forth in Exhibit C to the Trust Agreement.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
CATERPILLAR FINANCIAL ASSET TRUST
2004-A,
By: CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, as
Owner Trustee
Dated: __________ By:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
CHASE MANHATTAN BANK USA, NATIONAL or CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Owner Trustee ASSOCIATION, as Owner Trustee
By JPMorgan CHASE BANK, as
Authenticating Agent
By: By:
Authorized Signatory Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
____________________________________________________________________________
(Please print or type name and address, including postal zip code, of
assignee)
____________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Register, with full power of
substitution in the premises.
Dated: _________________________________________*
Signature Guaranteed:
_________________________________________*
____________________
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever.
1
EXHIBIT B
CERTIFICATE OF TRUST OF
CATERPILLAR FINANCIAL ASSET TRUST 2004-A
THIS Certificate of Trust of CATERPILLAR FINANCIAL ASSET TRUST
2004-A (the "Trust") is being duly executed and filed on behalf of the Trust
by the undersigned, as trustee, to form a statutory trust under the Delaware
Statutory Trust Act (12 Del. C. § 3801 et seq.) (the "Act").
Name. The name of the statutory trust formed by this Certificate
of Trust is CATERPILLAR FINANCIAL ASSET TRUST 2004-A.
Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware are Chase Manhattan Bank USA, National
Association, c/o XX Xxxxxx Xxxxx, 500 Xxxxxxx Xxxxxxxxxx Road, OPS4, 3rd
Floor, Newark, Delaware 19713 Attention: Institutional Trust Services.
Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Trustee
By:_________________________________
Name:
Title:
C-4
EXHIBIT C
CERTIFICATEHOLDER CERTIFICATION
This Certificateholder Certification ("Certification") is delivered
pursuant to Section 11.13(b) of Caterpillar Financial Asset Trust 2004-A
Amended and Restated Trust Agreement, dated as of May 1, 2004 (the "Trust
Agreement"), between Caterpillar Financial Funding Corporation and Chase
Manhattan Bank USA, National Association, as Owner Trustee, in connection
with the acquisition of, transfer to or possession by the undersigned,
whether as beneficial owner (the "Beneficial Owner"), or nominee on behalf of
the Beneficial Owner, of the Caterpillar Financial Asset Trust 2004-A Asset
Backed Certificate (the "Certificate"). Capitalized terms used but not
defined in this Certification have the respective meanings given them in the
Trust Agreement.
The holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III of Section A.
Section A. To confirm to the Trust that the provisions of Section 1446
of the Internal Revenue Code (relating to withholding tax on foreign
partners) do not apply in respect of the Certificate held by the undersigned,
the undersigned hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is) not a non-resident alien for
purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are
_____________________________________________
_____________________________________________
_____________________________________________; and
3. My (The Beneficial Owner's) U.S. taxpayer identification
number (Social Security Number) is ______________________.
B. Corporate, Partnership or other Entity as Beneficial Owner
1. ________________________________ (Name of the Beneficial
Owner) is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined
in the Code and Treasury regulations);
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is
_________________________________________
_________________________________________; and
3. The Beneficial Owner's U.S. employer identification number
(Social Security Number) is _______________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this Certification has been made in reliance upon
information contained in:
_________ an IRS Form W-9
_________ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that
the form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certification of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
Certification may be disclosed to the Internal Revenue Service by the Trust
and any false statement contained therein could be punishable by fines,
imprisonment or both.
Under penalty of perjury, I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct
and complete and, if applicable, I further declare that I have the authority*
to sign this document
________________________________________________________________
Name
________________________________________________________________
Title (if applicable)
________________________________________________________________
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney
must accompany this Certification.
THE CERTIFICATION CONTAINED IN THIS SECTION A WILL BECOME OBSOLETE AT
THE END OF THE THIRD YEAR AFTER THE TAXABLE YEAR OF THE TRUST DURING WHICH
THIS CERTIFICATION IS DELIVERED TO THE TRUST.
Section B. The undersigned hereby certifies that (check one):
1. were used to acquire the Certificate.
OR
2. I am an insurance company, acting on behalf of my general account, and.
a. on the date I acquired the Certificate, less than 25% of the
assets of my general account constituted Plan Assets, and
b. if, at any time during any calendar quarter after the initial
acquisition of the Certificate, 25% or more of the assets of such general
account constitutes "plan assets" (as defined in the Plan Asset Regulation)
and no exemption or exception from the prohibited transaction rules applies
to the continued holding of the Certificate under Section 401(c) of ERISA and
final regulations thereunder or an exemption or regulation issued by the DOL
under ERISA, then I will dispose of the Certificate then held in my general
account by the end of the next following calendar quarter and shall deliver
to the Owner Trustee at the time of acquisition of the Certificate a duly
executed Certificateholder Certification in the form set forth in this
exhibit.
I declare that I have examined this Certification and to the best of my
knowledge and belief it is true, correct and complete and, if applicable, I
further declare that I have the authority* to sign this document
________________________________________________________________
Name
________________________________________________________________
Title (if applicable)
________________________________________________________________
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney
must accompany this Certification.
EXECUTION COPY
===============================================================================
AMENDED AND RESTATED TRUST AGREEMENT
among
CATERPILLAR FINANCIAL FUNDING CORPORATION
Seller
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
Owner Trustee
Dated as of May 25, 2004
===============================================================================
Page
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................1
Section 1.01. Capitalized Terms.......................................1
Section 1.02. Other Definitional Provisions...........................3
ARTICLE II ORGANIZATION..................................................3
Section 2.01. Name....................................................3
Section 2.02. Office..................................................4
Section 2.03. Purpose and Powers......................................4
Section 2.04. Appointment of Owner Trustee............................4
Section 2.05. Initial Capital Contribution of Trust Estate............4
Section 2.06. Declaration of Trust....................................5
Section 2.07. Liability of the Certificateholder......................5
Section 2.08. Title to Trust Property.................................5
Section 2.09. Situs of Trust..........................................5
Section 2.10. Representations and Warranties of Seller................5
Section 2.11. Amended and Restated Trust Agreement....................6
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS........................6
Section 3.01. Initial Ownership.......................................6
Section 3.02. Form of Certificates....................................7
Section 3.03. Authentication of the Certificate.......................7
Section 3.04. Registration of Transfer of the Certificate.............7
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate........8
Section 3.06. Persons Deemed Owner....................................8
Section 3.07. Access to List of Certificateholder's Names and
Addresses...............................................8
Section 3.08. Maintenance of Office or Agency.........................8
Section 3.09. Appointment of Paying Agents............................9
ARTICLE IV ACTIONS BY OWNER TRUSTEE......................................9
Section 4.01. Prior Notice to Certificateholder with Respect to
Certain Matters.........................................9
Section 4.02. Action By the Certificateholder with Respect to
Certain Matters........................................10
Section 4.03. Action By Certificateholder with Respect to
Bankruptcy.............................................10
Section 4.04. Restrictions on Certificateholder's Power..............10
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...................10
Section 5.01. Establishment of Trust Account.........................10
Section 5.02. Application of Trust Funds.............................11
Section 5.03. Method of Payment......................................11
Section 5.04. No Segregation of Monies; No Interest..................12
Section 5.05. Accounting and Report to the Noteholders, the
Certificateholder, the Internal Revenue Service
and Others.............................................12
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE........................12
Section 6.01. General Authority......................................12
Section 6.02. General Duties.........................................12
Section 6.03. Action Upon Instruction................................13
Section 6.04. No Duties Except as Specified in This Agreement or
in Instructions........................................13
Section 6.05. No Action Except under Specified Documents or
Instructions...........................................14
Section 6.06. Restrictions...........................................14
ARTICLE VII CONCERNING THE OWNER TRUSTEE.................................14
Section 7.01. Acceptance of Trusts and Duties........................14
Section 7.02. Furnishing of Documents................................15
Section 7.03. Representations and Warranties.........................16
Section 7.04. Reliance; Advice of Counsel............................16
Section 7.05. Not Acting in Individual Capacity......................16
Section 7.06. Owner Trustee Not Liable for the Certificate,
Notes or Receivables...................................17
Section 7.07. Owner Trustee May Own the Certificate and Notes........17
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE................................17
Section 8.01. Owner Trustee's Fees and Expenses......................17
Section 8.02. Indemnification........................................17
Section 8.03. Payments to the Owner Trustee..........................18
ARTICLE IX TERMINATION OF TRUST AGREEMENT...............................18
Section 9.01. Termination of Trust Agreement.........................18
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.......19
Section 10.01. Eligibility Requirements for Owner Trustee.............19
Section 10.02. Resignation or Removal of Owner Trustee................19
Section 10.03. Successor Owner Trustee................................20
Section 10.04. Merger or Consolidation of Owner Trustee...............21
Section 10.05. Appointment of Co-Trustee or Separate Trustee..........21
ARTICLE XI MISCELLANEOUS................................................22
Section 11.01. Supplements and Amendments.............................22
Section 11.02. No Legal Title to Owner Trust Estate in the Owner......23
Section 11.03. Limitations on Rights of Others........................23
Section 11.04. Notices................................................23
Section 11.05. Severability...........................................24
Section 11.06. Separate Counterparts..................................24
Section 11.07. Successors and Assigns.................................24
Section 11.08. [Intentionally Omitted]................................24
Section 11.09. No Petition............................................24
Section 11.10. No Recourse............................................24
Section 11.11. Headings...............................................24
Section 11.12. GOVERNING LAW..........................................24
Section 11.13. Certificate Transfer Restrictions......................24
Section 11.14. Seller Payment Obligation..............................25
