EXECUTION COPY
CATERPILLAR FINANCIAL ASSET TRUST 2004-A
Class A-1 1.37040% Asset Backed Notes
Class A-2 2.18% Asset Backed Notes
Class A-3 3.13% Asset Backed Notes
Class B 3.71% Asset Backed Notes
ADMINISTRATION AGREEMENT
Dated as of May 1, 2004
CATERPILLAR FINANCIAL SERVICES CORPORATION
Administrator
ADMINISTRATION AGREEMENT dated as of May 1, 2004, among CATERPILLAR
FINANCIAL ASSET TRUST 2004-A, a Delaware statutory trust (the "Issuer"),
CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation, as
administrator (the "Administrator"), CATERPILLAR FINANCIAL FUNDING
CORPORATION, a Nevada corporation (the "Seller"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
but solely as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS the Issuer is issuing the Class A-1 1.37040% Asset Backed Notes
(the "A-1 Notes"), the Class A-2 2.18% Asset Backed Notes (the "Class A-2
Notes"), the Class A-3 3.13% Asset Backed Notes (the "A-3 Notes") and the
Class B 3.71% Asset Backed Notes (the "Class B Notes"; together with the A-1
Notes, A-2 Notes and the Class A-3 Notes, the "Notes") pursuant to the
Indenture dated as of May 1, 2004 (as amended, modified or supplemented from
time to time in accordance with the provisions thereof, the "Indenture"),
between the Issuer and the Indenture Trustee.
WHEREAS the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests
of the Issuer, including (i) a Sale and Servicing Agreement dated as of May
1, 2004 (the "Sale and Servicing Agreement") (capitalized terms used herein
and not defined herein shall have the meanings assigned such terms in the
Sale and Servicing Agreement, or if not defined therein, in the Indenture)
among the Issuer, Caterpillar Financial Services Corporation ("CFSC"), as
servicer, and the Seller, (ii) a Depository Agreement dated May 24, 2004 (the
"Depository Agreement") among the Issuer, the Indenture Trustee and The
Depository Trust Company, (iii) the Indenture, and (iv) the Custodial
Agreement dated as of May 1, 2004 (the "Custodial Agreement") among CFSC, the
Seller, the Issuer, the Indenture Trustee and U.S. Bank National Association,
as custodian (the "Custodian") (the Sale and Servicing Agreement, the
Depository Agreement, the Custodial Agreement and the Indenture being
hereinafter referred to collectively as the "Related Agreements");
WHEREAS pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the
Notes and the collateral therefor granted to the Indenture Trustee pursuant
to the Indenture (the "Collateral") and (b) the beneficial ownership
interests in the Issuer (the holders of such interests being referred to
herein as the "Owners");
WHEREAS the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause, and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer and the Owner Trustee may from time to time request;
WHEREAS the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Duties of Administrator. (a) Duties with Respect to the Related
Agreements. (i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Depository Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer and the Owner Trustee under
the Related Agreements. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's or the Owner Trustee's duties under the Related
Agreements. The Administrator shall prepare for execution by the Issuer or
the Owner Trustee or shall cause the preparation by other appropriate persons
of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to any Related Agreement. In furtherance of
the foregoing, the Administrator shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to
sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section
2.04);
(B) the notification of Noteholders of the final principal payment on their
Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified record date and the
notification of the Indenture Trustee and Noteholders with respect to
special payment dates, if any (Section 2.07(c));
(D) the preparation of or obtaining of the documents and instruments
required for authentication of the Notes, if any, and delivery of the
same to the Indenture Trustee (Section 2.02);
(E) the preparation, obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of collateral
(Section 2.09);
(F) the duty to cause newly appointed Paying Agents, if any, to deliver to
the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
(G) the direction to Paying Agents to pay to the Indenture Trustee all sums
held in trust by such Paying Agents (Section 3.03);
(H) the obtaining and preservation of the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and
agreement included in the Trust Estate;
(I) the preparation of all supplements, amendments, financing statements,
continuation statements, if any, instruments of further assurance and
other instruments, in accordance with Section 3.05 of the Indenture,
necessary to protect the Trust Estate (Section 3.05);
(J) the obtaining of the Opinion of Counsel on the Closing Date and the
annual delivery of Opinions of Counsel, in accordance with Section 3.06
of the Indenture, as to the Trust Estate, and the annual delivery of
the Officer's Certificate and certain other statements, in accordance
with Section 3.09 of the Indenture, as to compliance with the Indenture
(Sections 3.06 and 3.09);
(K) the identification to the Indenture Trustee in an Officer's Certificate
of a Person with whom the Issuer has contracted to perform its duties
under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and the Rating Agencies of a
Servicer Default pursuant to the Sale and Servicing Agreement and, if
such Servicer Default arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing Agreement, the
taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(M) the preparation and obtaining of documents and instruments required for
the release of the Issuer from its obligation under the Indenture
(Section 3.11(b));
(N) the delivery of notice to the Indenture Trustee of each Event of
Default and each default by the Servicer or Seller under the Sale and
Servicing Agreement (Section 3.19);
(O) the monitoring of the Issuer's obligations as to the satisfaction and
discharge of the Indenture and the preparation of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.01);
(P) the compliance with any written directive of the Indenture Trustee with
respect to the sale of the Trust Estate in a commercially reasonable
manner if an Event of Default shall have occurred and be continuing
(Section 5.04);
(Q) the preparation and delivery of notice to Noteholders of the removal of
the Indenture Trustee and the appointment of a successor Indenture
Trustee (Section 6.08);
(R) the preparation of any written instruments required to confirm more
fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or
removal of any co-trustee or separate trustee (Sections 6.08 and 6.10);
(S) the furnishing of the Indenture Trustee with the names and addresses of
Noteholders during any period when the Indenture Trustee is not the
Note Registrar (Section 7.01);
(T) the preparation and, after execution by the Issuer, the filing with the
Commission, any applicable state agencies and the Indenture Trustee of
documents required to be filed on a periodic basis with, and summaries
thereof as may be required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the transmission of
such summaries, as necessary, to the Noteholders (Section 7.03);
(U) the opening of one or more accounts in the Trust's name, the
preparation of Issuer Orders, Officers' Certificates and Opinions of
Counsel and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.02 and 8.03);
(V) the preparation of an Issuer Request and Officer's Certificate and the
obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Trust Estate as defined in the
Indenture (Sections 8.04 and 8.05);
(W) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and 9.03);
(X) the execution of new Notes conforming to any supplemental indenture
(Section 9.06);
(Y) the notification of Noteholders of redemption of the Notes
(Section 10.02);
(Z) the preparation of all Officers' Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests by the Issuer to
the Indenture Trustee to take any action under the Indenture (Section
11.01(a));
(AA) the preparation and delivery of Officers' Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.01(b));
(BB) the notification of the Rating Agencies, upon the failure of the
Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section 11.04);
(CC) the preparation and delivery to Noteholders and the Indenture Trustee
of any agreements with respect to alternate payment and notice
provisions (Section 11.06);
(DD) the recording of the Indenture, if applicable (Section 11.15); and
(EE) causing the Servicer to comply with Sections 4.09, 4.10, 4.11 and 5.06
of the Sale and Servicing Agreement.
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable compensation for
all services rendered by the Indenture Trustee under the Indenture
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the
Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its agents and
either in-house counsel or outside counsel, but not both), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and to hold them
harmless against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Indenture, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties under the
Indenture; and
(D) indemnify the Owner Trustee and its agents for, and to hold them
harmless against, any losses, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Trust Agreement, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties under the
Trust Agreement.
(b) Additional Duties. (i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform such calculations and shall
prepare for execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Related Agreements. Subject to Section 5 of this
Agreement, and in accordance with the directions of the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related Agreements to
the contrary, the Administrator shall be responsible for promptly notifying
the Owner Trustee in the event that any withholding tax is imposed on the
Trust's payments (or allocations of income) to the "Owner" as contemplated in
Section 5.02(c) of the Trust Agreement. Any such notice shall specify the
amount of any withholding tax required to be withheld by the Owner Trustee
pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related Agreements to
the contrary, the Administrator shall be responsible for performance of the
duties of the Owner Trustee set forth in Section 5.05 of the Trust Agreement
with respect to, among other things, accounting and reports to the
Certificateholder.
(iv) The Administrator may satisfy its obligations with respect to clauses
(ii) and (iii) above by retaining, at the expense of the Administrator, a
firm of independent public accountants (the "Accountants") acceptable to the
Owner Trustee which shall perform the obligations of the Administrator
thereunder. In connection with paragraph (ii) above, the Accountants will
provide prior to June 25, 2004 a letter in form and substance satisfactory to
the Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with
the requirements of the Code. The Accountants shall be required to update
the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no
longer be required.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under
the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; provided, however, that the terms
of any such transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
(vii) It is the intention of the parties hereto that the Administrator shall,
and the Administrator hereby agrees to, execute on behalf of the Issuer or
the Owner Trustee all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Basic Documents. In
furtherance thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator, and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for
the purpose of executing on behalf of the Owner Trustee and the Issuer all
such documents, reports, filings, instruments, certificates and opinions.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action, the Administrator shall have notified the
Owner Trustee of the proposed action and the Owner Trustee shall not have
withheld consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the compromise
of any action, claim or lawsuit brought by or against the Issuer (other
than in connection with the collection of the Receivables);
(C) the amendment, change or modification of the Related Agreements;
(D) the appointment of successor Note Registrars, successor Paying Agents
and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments
to the Noteholders or the Certificateholder under the Related Agreements, (y)
sell the Trust Estate pursuant to Section 5.04 of the Indenture or (z) take
any other action that the Issuer directs the Administrator not to take on its
behalf.
2. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account
and records shall be accessible for inspection by the Issuer, the Owner
Trustee, the Indenture Trustee and the Seller at any time during normal
business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to $500 per month which shall be payable in accordance with Section
5.04 of the Sale and Servicing Agreement. The Seller shall also reimburse
the Administrator for any of its liabilities and expenses related to its
performance hereunder or under any Related Document (including without
limitation those expenses set forth in Section 1(a)(ii) of this Agreement).
4. Additional Information To Be Furnished to Issuer. The Administrator
shall furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. Independence of Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to
the supervision of the Issuer or the Owner Trustee with respect to the manner
in which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Issuer, the Administrator shall have no authority
to act for or represent the Issuer or the Owner Trustee in any way and shall
not otherwise be deemed an agent of the Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of
them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuer, the Owner Trustee or the
Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator. (a) This
Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) and (f), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days prior written
notice.
(c) Subject to Section 8(e) and (f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days prior written notice.
(d) Subject to Section 8(e) and (f), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall
occur:
(i) the Administrator shall default in the performance of any of its duties
under this Agreement and, after notice of such default, shall not cure such
default within ten days (or, if such default cannot be cured in such time,
shall not give within ten days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree or
order for relief, and such decree or order shall not have been vacated within
60 days, in respect of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Administrator or any substantial
part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this Section shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant to this Section
shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective only
after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or
the resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
Caterpillar Financial Asset Trust 2004-A
Chase Manhattan Bank USA, National Association
c/o XX Xxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0
0xx Xxxxx
Xxxxxx, Xxxxxxxx 19713
Attention: Institutional Trust Services
(b) if to the Administrator, to
Caterpillar Financial Services Corporation
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
(c) if to the Indenture Trustee, to
U.S. Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(d) if to the Seller, to
Caterpillar Financial Funding Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above, except that
notices to the Indenture Trustee are effective only upon receipt.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, with the written consent of the
Owner Trustee, without the consent of the Noteholders and the
Certificateholder, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that such amendment will not, in the
Opinion of Counsel, materially and adversely affect the interest of any
Noteholder or the Certificateholder or the federal tax characterization of
the Notes. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the holders of Notes evidencing a majority in the Outstanding
Amount of the Notes and the holder of the Certificate for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or the Certificateholder; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders
or the Certificateholder or (ii) reduce the aforesaid percentage of the
holders of Notes and the holder of the Certificate which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and the Certificate. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the
Seller, which permission shall not be unreasonably withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the
Rating Agency Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator, provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in
the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall together constitute but one and the same
agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
17. Not Applicable to Caterpillar Financial Services Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation
Caterpillar Financial Services Corporation may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been signed by Chase Manhattan Bank USA, National Association
not in its individual capacity but solely in its capacity as Owner Trustee of
the Issuer and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements
or other obligations of the Issuer hereunder, as to all of which recourse
shall be had solely to the assets of the Issuer. For all purposes of this
Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by U.S. Bank National Association not in its
individual capacity but solely as Indenture Trustee and in no event shall
U.S. Bank National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.02
of the Sale and Servicing Agreement, to enforce the provisions of Section
8.02 with respect to the appointment of a successor Servicer. Such successor
Servicer shall, upon compliance with the last sentence of the first paragraph
of Section 8.02 of the Sale and Servicing Agreement, become the successor
Administrator hereunder; provided, however, that if the Indenture Trustee
shall become such successor Administrator, the Indenture Trustee shall not be
required to perform any obligations or duties or conduct any activities as
successor Administrator that would be prohibited by law and not within the
banking and trust powers of the Indenture Trustee. In such event, the
Indenture Trustee shall appoint a sub-administrator to perform such
obligations and duties.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination of
this Agreement, the Seller, the Administrator, the Owner Trustee and the
Indenture Trustee shall not, prior to the date which is one year and one day
after the termination of this Agreement with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the Issuer,
the Administrator, the Owner Trustee and the Indenture Trustee shall not,
prior to the date which is one year and one day after the termination of this
Agreement with respect to the Seller, acquiesce, petition or otherwise invoke
or cause the Seller to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Seller under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Seller or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Seller.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CATERPILLAR FINANCIAL ASSET
TRUST 2004-A
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:
Name: Xxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Indenture Trustee
By:
Name: Xxxxxxx Xxxxx
Title: Vice President
CATERPILLAR FINANCIAL SERVICES CORPORATION,
as Administrator
By:
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
CATERPILLAR FINANCIAL FUNDING CORPORATION,
as Seller
By:
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF ____________ )
)
COUNTY OF __________ )
KNOW ALL MEN BY THESE PRESENTS, that ______________________, a
____________________________, not in its individual capacity but solely as
owner trustee ("Owner Trustee") for the Caterpillar Financial Asset Trust
2004-A ("Trust"), does hereby make, constitute and appoint
____________________________, as Administrator under the Administration
Agreement (as defined below), and its agents and attorneys, as
Attorneys-in-Fact to execute on behalf of the Owner Trustee or the Trust all
such documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Owner Trustee or the Trust to prepare, file or
deliver pursuant to the Related Documents (as defined in the Administration
Agreement), including, without limitation, to appear for and represent the
Owner Trustee and the Trust in connection with the preparation, filing and
audit of federal, state and local tax returns pertaining to the Trust, and
with full power to perform any and all acts associated with such returns and
audits that the Owner Trustee could perform, including without limitation,
the right to distribute and receive confidential information, defend and
assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restriction on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements.
For the purpose of this Power of Attorney, the term "Administration
Agreement" means the Administration Agreement dated as of May 1, 2004, among
the Trust, Caterpillar Financial Services Corporation, as Administrator and
Servicer, and U.S. Bank National Association, as Indenture Trustee, as such
may be amended from time to time.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
EXECUTED this [___] day of May, 2004.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity
but solely as Owner Trustee,
By:
Name:
Title:
1. Duties of Administrator................................................2
2. Records................................................................7
3. Compensation...........................................................7
4. Additional Information To Be Furnished to Issuer.......................7
5. Independence of Administrator..........................................7
6. No Joint Venture.......................................................8
7. Other Activities of Administrator......................................8
8. Term of Agreement; Resignation and Removal of Administrator............8
9. Action upon Termination, Resignation or Removal........................9
10. Notices................................................................9
11. Amendments............................................................10
12. Successors and Assigns................................................10
13. GOVERNING LAW.........................................................11
14. Headings..............................................................11
15. Counterparts..........................................................11
16. Severability..........................................................11
17. Not Applicable to Caterpillar Financial Services Corporation in
Other Capacities......................................................11
18. Limitation of Liability of Owner Trustee and Indenture Trustee........11
19. Third-Party Beneficiary...............................................11
20. Successor Servicer and Administrator..................................11
21. Nonpetition Covenants.................................................12
EXHIBIT A - Form of Power of Attorney
