Exhibit 10.1
FORM OF PURCHASE AGREEMENT
--------------------------------------------------------------------------------
CATERPILLAR FINANCIAL SERVICES CORPORATION
AND
CATERPILLAR FINANCIAL FUNDING CORPORATION
__________________
PURCHASE AGREEMENT
Dated as of [__________________]
__________________
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Other Definitional Provisions............................ 2
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables................................ 3
SECTION 2.02. Ownership and Custody of Receivables Files............... 4
SECTION 2.03. Books and Records........................................ 4
SECTION 2.04. Custody of Receivable Files.............................. 4
SECTION 2.05 Acceptance by Purchaser of the Receivables;
Certification by the Indenture Trustee................. 4
SECTION 2.06. The Closing.............................................. 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Purchaser.............. 6
SECTION 3.02. Representations and Warranties of Seller................. 7
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to the Obligation of the Purchaser............ 12
SECTION 4.02. Conditions to Obligation of Seller....................... 13
SECTION 4.03. Junior Liens on Financed Equipment....................... 13
ARTICLE V
COVENANTS OF THE SELLER AND THE PURCHASER
SECTION 5.01. Protection of Right, Title and Interest.................. 13
SECTION 5.02. Other Liens or Interests................................. 13
SECTION 5.03. Chief Executive Office................................... 14
i
SECTION 5.04. Corporate Existence...................................... 14
SECTION 5.05. Indemnification.......................................... 16
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Obligations of Seller.................................... 16
SECTION 6.02. Repurchase Events........................................ 16
SECTION 6.03. Purchaser Assignment of Repurchased Receivables.......... 16
SECTION 6.04. Trust.................................................... 17
SECTION 6.05. Amendment................................................ 17
SECTION 6.06. Waivers.................................................. 17
SECTION 6.07. Notices.................................................. 17
SECTION 6.08. Costs and Expenses....................................... 18
SECTION 6.09. Representations of Seller and Purchaser.................. 18
SECTION 6.10. Confidential Information................................. 18
SECTION 6.11. Headings and Cross-References............................ 18
SECTION 6.12. Governing Law............................................ 18
SECTION 6.13. Counterparts............................................. 18
EXHIBIT A Formal Assignment
SCHEDULE A Schedule of Receivables
ii
PURCHASE AGREEMENT dated as of [___________________], between CATERPILLAR
FINANCIAL SERVICES CORPORATION, a Delaware corporation (the "Seller"), and
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation (the
"Purchaser").
WHEREAS in the regular course of its business, the Seller has originated or
purchased certain fixed-rate retail installment sale contracts secured by new
and used machinery and equipment; and
WHEREAS the Seller and the Purchaser wish to set forth the terms pursuant
to which the Receivables (as hereinafter defined) are to be sold by the Seller
to the Purchaser, which Receivables will be transferred by the Purchaser,
pursuant to the Sale and Servicing Agreement (as hereinafter defined), to
Caterpillar Financial Asset Trust 199[_]-[_] (the "Trust"), which Trust will
issue [____]% Asset Backed Certificates (the "Certificates") representing
fractional undivided interests in, and Class A-1 [____]% Asset Backed Notes,
Class A-2 [____]% Asset Backed Notes [and] Class A-3 [____]% Asset Backed Notes
[and the Class B [___]% Asset Backed Notes] (collectively, the "Notes") secured
by, such Receivables and the other property of the Trust.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. DEFINITIONS. Except as otherwise specified herein or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Agreement.
"AFFILIATE" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, by contract or otherwise; and the terms
"controlled by," "controlling" and "under common control with" have meanings
correlative to the foregoing.
"AGREEMENT" shall mean this Purchase Agreement, as the same may be amended,
modified or supplemented from time to time.
"ASSIGNMENT" shall mean the document of assignment, a form of which is
attached to this Agreement as Exhibit A.
"BASIC DOCUMENTS" shall have the meaning given such term in the Indenture.
"CERTIFICATE" shall have the meaning given such term in the Trust
Agreement.
"CLOSING DATE" shall mean [__________________].
"INDENTURE" shall mean the Indenture dated as of [___________________]
between the Trust and [____________________________], as indenture trustee, as
the same may be amended, modified or supplemented from time to time.
"PERSON" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"PROSPECTUS" shall mean the Prospectus (which consists of a base prospectus
and a prospectus supplement, each dated [____________________] pursuant to which
the Notes and Certificates were offered.
"PURCHASER" shall mean Caterpillar Financial Funding Corporation, a Nevada
corporation, its successors and assigns.
"RECEIVABLE" shall mean any Contract listed on the Schedule of Receivables.
"REPURCHASE EVENT" shall have the meaning specified in SECTION 6.02(A).
"SALE AND SERVICING AGREEMENT" shall mean the Sale and Servicing Agreement
dated as of [_______________________], among the Trust, the Purchaser (in its
capacity as seller thereunder) and the Seller (in its capacity as Servicer
thereunder), as the same may be amended, modified or supplemented from time to
time.
"SCHEDULE OF RECEIVABLES" shall mean the list of Receivables annexed hereto
as Schedule A (which may be in the form of microfiche).
"SELLER" shall mean Caterpillar Financial Services Corporation, a Delaware
corporation, its successors and assigns.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the Sale
and Servicing Agreement or, if not defined therein, in the Indenture, or if not
defined therein, in the Trust Agreement.
(b) All terms defined in this Agreement shall have the meanings contained
herein when used in any document made or delivered pursuant hereto unless
otherwise defined therein.
2
(c) As used in this Agreement and in any document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement or in
any such other document, and accounting terms partly defined in this Agreement
or in any such other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section 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
CONVEYANCE OF RECEIVABLES
SECTION 2.01. CONVEYANCE OF RECEIVABLES. In consideration of the sale on
the Closing Date of $[____________] in Principal Balance of Receivables, the
Purchaser shall (i) deliver to or upon the order of the Seller an amount equal
to $[____________] in cash and (ii) accept a capital contribution from the
Seller equal to $[____________]. The Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Purchaser, without recourse (subject to the
obligations herein), all right, title and interest in and to the following,
whether now owned or hereafter acquired:
(a) all right, title and interest of the Seller, in and to the
Receivables, and all moneys (including accrued interest) due thereunder on
and after the Cut-off Date;
(b) the interest of the Seller in the security interests in the
Transaction Equipment granted by Obligors pursuant to the Receivables and
any other interest of the Seller in such Transaction Equipment;
(c) the interest and rights of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage, credit life
or disability insurance policies covering Financed Equipment or Obligors,
as the case may be;
(d) the interest of the Seller in any proceeds from recourse to or
other payments by Dealers on Receivables; and
3
(e) the proceeds of any and all of the foregoing.
SECTION 2.02. OWNERSHIP AND CUSTODY OF RECEIVABLES FILES.
-------------------------------------------
(a) Upon the acceptance by the Seller of the amount set forth in
SECTION 2.01, the ownership of each Receivable and the contents
of the related Receivables File shall be vested in the Purchaser.
(b) In connection with the sale of the Receivables, pursuant to
SECTION 2.01, the Seller has delivered or caused to be delivered
each Receivables File to the Custodian on behalf of the
Purchaser.
SECTION 2.03. BOOKS AND RECORDS.
------------------
The transfer of each Receivable shall be reflected on the Seller's balance
sheets and other financial statements prepared in accordance with generally
accepted accounting principles as a sale of assets by the Seller to the
Purchaser. The Seller shall be responsible for maintaining, and shall maintain,
a complete and accurate set of accounts, records and computer files for each
Receivable which shall be clearly marked to reflect the ownership of each
Receivable by the Purchaser.
SECTION 2.04. CUSTODY OF RECEIVABLE FILES. The Purchaser has appointed the
Custodian pursuant to the Custodial Agreement, and the Custodian thereby
accepted such appointment, to act as agent of the Purchaser as custodian of the
Receivables Files.
SECTION 2.05. Acceptance by Purchaser of the Receivables; Certification
BY THE INDENTURE TRUSTEE.
(a) The Purchaser hereby acknowledges constructive receipt of, through
the Custodian, for each Receivable, a Receivables File in the form
delivered to it by the Seller, and declares that it will hold such
documents and any amendments, replacements or supplements thereto, as well
as any other assets transferred pursuant to the terms hereof. Pursuant to
the Sale and Servicing Agreement, the Custodial Agreement and this
Agreement, the Indenture Trustee will, for the benefit of the Purchaser,
review (or cause to be reviewed) each of the documents in the Receivables
Files within 45 days after the Closing Date and to deliver a final
certification in the form attached to the Sale and Servicing Agreement as
Exhibit C-2 to the effect that, as to each Receivable listed in the
Schedule of Receivables (other than any Receivable paid in full or any
Receivable specifically identified in such certification as not covered by
such certification); (i) all documents required to be delivered to it
pursuant to this Agreement are in its possession, (ii) such documents have
been reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered (handwritten additions, changes or corrections shall not
constitute physical alteration if initialled by the Obligor) and related to
such Receivable, and (iii) based on its examination and only as to the
foregoing documents, the information set forth on the Schedule of
Receivables accurately reflects the information
&4
set forth in the Receivables File. Pursuant to the Sale and Servicing
Agreement, the Custodial Agreement and this Agreement, the Indenture
Trustee shall be under no duty or obligation to inspect, review or examine
any such documents, instruments, certificates or other papers to determine
that they are genuine, enforceable or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
(b) If the Indenture Trustee during the process of reviewing the
Receivable Files finds any document constituting a part of a Receivable
File which is not executed, has not been received, is unrelated to the
related Receivable identified on Schedule A hereto, or does not conform to
the requirements of Section 3.03 of the Sale and Servicing Agreement or
substantively to the description thereof as set forth in the Schedule of
Receivables, the Indenture Trustee is required in the Sale and Servicing
Agreement to promptly give notice of same. In performing any such review,
the Indenture Trustee may conclusively rely on the Seller as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Indenture Trustee's review of the
Receivable Files is limited solely to confirming that the documents listed
in Section 2.04 have been executed and received and relate to the
Receivable Files identified in the Schedule of Receivables. The Seller
agrees to use reasonable efforts to cause to be remedied a material defect
in a document constituting part of a Receivables File of which it is so
notified by the Indenture Trustee. If, however, within 60 days after
receipt by it of notice with respect to such defect the Seller has not
caused to be remedied any defect described in such final certification and
such defect materially and adversely affects the interest of the Purchaser
in the related Receivable, the Seller shall remit the Purchase Amount to
the Purchaser. The sole remedy of the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect
to a breach shall be to require the Seller to repurchase Receivables
pursuant to this Section, subject to the conditions contained herein. The
Owner Trustee shall have no duty to conduct any affirmative investigation
as to the occurrence of any condition requiring the repurchase of any
Receivable pursuant to this Section.
SECTION 2.06. THE CLOSING.
------------
The conveyance of the Receivables shall take place at the offices of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, on the Closing Date, simultaneously with the closing of the transactions
contemplated by the Sale and Servicing Agreement, the underwriting agreement[s]
related to the Notes [and the Certificates] and the other Basic Documents.
5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser
hereby represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser is duly organized,
validly existing in good standing under the laws of the State of Nevada,
and has the power and authority to own its properties and to conduct the
business in which it is currently engaged, and had at all relevant times,
and has, the power, authority and legal right to acquire and own the
Receivables.
(b) DUE QUALIFICATION. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications.
(c) POWER AND AUTHORITY. The Purchaser has the power and authority
to execute and deliver this Agreement and to carry out its terms and the
execution, delivery and performance of this Agreement has been duly
authorized by the Purchaser by all necessary corporate action.
(d) NO VIOLATION. 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, nor
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Purchaser, or any indenture,
agreement or other instrument to which the Purchaser is a party or by which
it is bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than the Sale and Servicing Agreement and the
Indenture); nor violate any law or, to the best of the Purchaser's
knowledge, any order, rule or regulation applicable to the Purchaser of any
court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or its
properties.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Purchaser's best knowledge, threatened, before any
court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or its
properties which (i) assert the invalidity of this Agreement, (ii) seek to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seek any determination or ruling that might materially
and adversely affect the performance by the Purchaser of its obligations
under, or the validity or enforceability of, this Agreement.
6
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF SELLER. (a) The Seller
hereby represents and warrants to the Purchaser of the date hereof and as of the
Closing Date:
(i). ORGANIZATION AND GOOD STANDING. The Seller is duly organized,
validly existing in good standing under the laws of the State of Delaware,
and has the power and authority to own its properties and to conduct the
business in which it is currently engaged, and had at all relevant times,
and has, the power, authority and legal right to acquire and own the
Receivables.
(ii) DUE QUALIFICATION. The Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(iii) POWER AND AUTHORITY. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property sold and
assigned to the Purchaser hereby and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly
authorized by the Seller by all necessary corporate action.
(iv) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof neither conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which it
is bound; nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement); 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.
(v) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the best of Seller's knowledge, threatened, before any
court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties which (A) assert the invalidity of this Agreement, (B) seek to
prevent the consummation of any of the transactions contemplated by this
Agreement, or (C) seek any determination or ruling that might materially
and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement.
(vi) NO CONSENTS REQUIRED. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery by the Seller of
this Agreement or any other Basic
7
Document, the performance by the Seller of the transactions contemplated by
this Agreement or any other Basic Document and the fulfillment by the
Seller of the terms hereof or thereof, have been obtained or have been
completed and are in full force and effect (other than approvals,
authorizations, consents, orders or other actions which if not obtained or
completed or in full force and effect would not have a material adverse
effect on the Seller or upon the collectibility of any Receivable or upon
the ability of the Seller to perform its obligations under this Agreement).
(b) The Seller makes the following representations and warranties as to
the Receivables on which the Purchaser relied in accepting the Receivables. The
parties hereto acknowledge that the representations and warranties below require
the Seller to monitor conditions that it may not have the ability to monitor.
Accordingly, wherever the Seller makes, or is deemed to make, a representation
that it cannot monitor, such representation shall be made as if prefaced with
the phrase "to the best of the Seller's knowledge"; PROVIDED, HOWEVER, that the
determination as to whether a Repurchase Event has occurred pursuant to SECTION
6.02 of this Agreement shall be made without reliance on whether the Seller
actually had knowledge of the veracity of any of its representations. Such
representations and warranties speak as of the execution and delivery of this
Agreement but shall survive the sale, transfer and assignment of the Receivables
to the Purchaser and the subsequent assignments and transfers of the Receivables
pursuant to the Sale and Servicing Agreement and the Indenture:
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) was
originated in the United States of America by the Seller in the ordinary
course of business or was originated by a Dealer in the ordinary course of
business, in each case in connection with the retail sale by a Dealer of
Financed Equipment in the ordinary course of such Dealer's business, was
fully and properly executed by the parties thereto, and if originated by
such Dealer, was purchased by the Seller from such Dealer and was validly
assigned by such Dealer to the Seller in accordance with its terms, (B) has
created a valid, subsisting and enforceable first priority security
interest in favor of the Seller in the Financed Equipment, and if
applicable, a valid, subsisting and enforceable security interest in favor
of the Seller in the Cross-Collateralized Equipment, which security
interests are assignable by the Seller to the Purchaser, by the Purchaser
to the Issuer and by the Issuer to the Indenture Trustee, (C) contains
customary and enforceable provisions such that the rights and remedies of
the holder thereof are adequate for realization against the collateral of
the benefits of the security, and (D) provides for fixed payments (except
as described below) on a periodic basis, yields interest at a fixed-rate
and is prepayable without premium or penalty at any time. Except for each
Over-Rate Receivable, the fixed payments provided for are sufficient to
amortize the Amount Financed of such Receivable by maturity and yield
interest at the annual percentage rate specified in the related Contract
for the relevant Receivable (which is the APR specified in the Schedule of
Receivables for such Receivable). With respect to an Over-Rate Receivable,
the principal balance outstanding under the related Contract is prepayable
by the related Obligor without premium or penalty at any time; provided,
that the related Dealer Agreement provides for payment by the related
Dealer to the Seller of the excess of the Principal Balance of such
Receivable over the principal balance required to be repaid by
8
such Obligor on any prepayment pursuant to the terms of the related
Contract. With respect to each Over-Rate Receivable, the fixed payments
provided for as of the Cut-off Date are sufficient to amortize the
Principal Balance of such Receivable by maturity and yield interest at the
APR specified in the Schedule of Receivables for the such Over-Rate
Receivable.
(ii) SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables to this Agreement is true and correct in all
material respects as of the opening of business on the Cut-off Date and no
selection procedures believed to be adverse to the Noteholders or the
Certificateholders were utilized in selecting the Receivables. The
computer tape regarding the Receivables made available to the Purchaser and
its assigns is true and correct in all respects.
(iii) COMPLIANCE WITH LAW. Each Receivable and the sale of the
Financed Equipment complied at the time it was originated or made, and at
the execution of this Agreement complies in all material respects, with all
requirements of applicable federal, state and local laws and regulations
thereunder, including usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's Regulations B and
S, and other equal credit opportunity and disclosure laws.
(iv) BINDING OBLIGATIONS. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof (which as of the Closing Date is the
Seller) in accordance with its terms, subject to bankruptcy, insolvency and
other laws relating to the enforcement of creditors' rights generally and
to general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). Such enforceability has
not been and is not adversely affected by whether or not the Seller was or
is qualified to do business in the state in which the Obligor was or is
located.
(v) SECURITY INTEREST IN FINANCED EQUIPMENT. Immediately prior to
the sale, assignment and transfer thereof, each Receivable shall be secured
by a validly perfected first priority security interest in the Financed
Equipment in favor of the Seller as secured party.
(vi) RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Equipment been released
from the lien granted by the related Receivable in whole or in part. No
Receivable is rescindable on the basis of whether or not the Seller was or
is qualified to do business in the state in which the Obligor was or is
located.
(vii) PROSPECTUS INFORMATION. As of the Cut-off Date, each
Receivable conforms and all Receivables in the aggregate conform, in all
material respects, to the description set forth in the Prospectus,
including all statistical data or otherwise.
9
(viii) NO AMENDMENTS. No Receivable has been amended such that the
amount of the Obligor's Scheduled Payments has been increased or decreased,
except for increases or decreases resulting from the inclusion of any
premium for forced-placed physical damage insurance covering the Financed
Equipment.
(ix) NO DEFENSES. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable.
(x) NO LIENS. No liens or claims have been filed for work, labor or
materials relating to any Financed Equipment that are liens prior to, or
equal or coordinate with, the security interest in the Financed Equipment
granted by the Receivable.
(xi) NO DEFAULT. No Receivable has a payment that is more than 90
days overdue as of the Cut-off Date and, except as permitted in this
paragraph, no default, breach, violation or event permitting acceleration
under the terms of any Receivable has occurred and is continuing; and
(except for payment defaults continuing for a period of not more than 90
days) no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting acceleration
under the terms of any Receivable has arisen; and the Seller has not waived
and shall not waive any of the foregoing.
(xii) INSURANCE. The Seller, in accordance with its customary
procedures, has determined that the Obligor has obtained physical damage
insurance covering the Financed Equipment, and under the terms of the
Receivable the Obligor is required to maintain such insurance.
(xiii) TITLE. It is the intention of the Seller that the transfer
and assignment herein contemplated constitute a sale of the Receivables
from the Seller to the Purchaser, and that the beneficial interest in and
title to the Receivables not be part of the debtor's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred, assigned or
pledged by the Seller to any Person other than the Purchaser. Immediately
prior to the transfer and assignment herein contemplated, the Seller has
good and marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests and rights of others and, immediately upon
the transfer thereof, the Purchaser shall have good and marketable title to
each Receivable, free and clear of all Liens, tax, governmental or similar
liens, encumbrances, security interests and rights of others; and the
transfer of the Receivables to the Purchaser has been perfected under the
UCC.
(xiv) LAWFUL ASSIGNMENT. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable or any Receivable under this Agreement, the
Sale and Servicing Agreement or the Indenture is unlawful, void or
voidable.
10
(xv) ALL ACTIONS TAKEN. All actions necessary to give the Purchaser
a first priority perfected ownership interest in the Receivables pursuant
to the applicable UCC have been taken.
(xvi) [Reserved]
(xvii) MATURITY OF RECEIVABLES. Each Receivable has a final
scheduled payment date due not later than [__________________] as of the
Cut-off Date and the weighted average remaining term of the Receivables is
[__] months as of the Cut-off Date.
(xviii) LOCATION OF RECEIVABLE FILES. The Receivable Files are kept
at the location listed in Schedule B to the Sale and Servicing Agreement.
(xix) OUTSTANDING PRINCIPAL BALANCE. Each Receivable has an
outstanding principal balance of at least $[______] as of the Cut-off Date.
(xx) NO BANKRUPTCIES. No Obligor on any Receivable as of the Cut-off
Date was noted in the related Receivable File as having filed for
bankruptcy or as being subject to a bankruptcy proceeding and to the
Seller's knowledge no such proceeding is pending or threatened against any
Obligor.
(xxi) NO REPOSSESSIONS. No Financed Equipment securing any
Receivable is in repossession status.
(xxii) CHATTEL PAPER. Each Receivable constitutes "chattel paper"
within the meaning of the UCC of the States of New York and Nevada.
(xxiii) U.S. OBLIGORS. None of the Receivables is due from any
Person which does not have a mailing address in the United States of
America.
(xxiv) ONE ORIGINAL. There is only one Original Contract related to
each Receivable. With respect to each Receivable, CFSC has a perfected,
first priority ownership or security interest in such Receivable, free and
clear of all Liens, encumbrances, security interests or rights of others.
(xxv) PAYMENT FREQUENCY. As of the Cut-off Date and as shown on the
books of the Seller, Receivables having an aggregate principal balance
equal to approximately [_____]% of the aggregate principal balance of all
Receivables had monthly scheduled payments; and as of the Cut-off Date and
as shown on the books of the Seller, Receivables having an aggregate
principal balance equal to approximately [____]% of the aggregate principal
balance of all Receivables had scheduled payments which have monthly
scheduled payments other than certain months specified therein for which
payment is skipped.
11
(xxvi) INTEREST ACCRUAL. Each Receivable is, as of the Closing Date,
accruing interest.
(xxvii) NOTIFICATION OF OBLIGORS. With respect to each Dealer
Receivable, the related Obligor has been notified with respect to the
assignment of the related Contract to CFSC.
ARTICLE IV
CONDITIONS
SECTION 4.01. CONDITIONS TO THE OBLIGATION OF THE PURCHASER. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Seller hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Seller shall have
performed all obligations to be performed by it hereunder on or prior to
the Closing Date.
(b) COMPUTER FILES MARKED. The Seller shall, at its own expense on
or prior to the Closing Date, (i) indicate in its computer files that
receivables created in connection with the Receivables have been sold to
the Purchaser pursuant to this Agreement and sold by the Purchaser to the
Trust pursuant to the Sale and Servicing Agreement and (ii) deliver to the
Purchaser the Schedule of Receivables certified by the Chairman, the
President, a Vice President, Secretary, the Treasurer or an Assistant
Treasurer of the Seller to be true, correct and complete.
(c) DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING.
(i) ASSIGNMENT. On the Closing Date, the Seller will execute
and deliver the Assignment. The Assignment shall be substantially in
the form of Exhibit A hereto.
(ii) EVIDENCE OF UCC FILINGS FOR SALE TO PURCHASER. On or prior
to the Closing Date, the Seller shall deliver to the Purchaser, for
its inspection and review, completed UCC requests for information,
dated on or before the Closing Date, listing all effective financing
statements filed with the Tennessee Secretary of State listing the
Seller as debtor.
(iii) EVIDENCE OF POSSESSION BY THE CUSTODIAN. On the Closing
Date, the Seller shall provide the Purchaser with copies of the
executed Transfer Certificate and Trust Receipt referred to in Section
3.1 of the Custodial Agreement.
12
(iv) OTHER DOCUMENTS. Such other documents as the Purchaser may
reasonably request.
(d) OTHER TRANSACTIONS. The transactions contemplated by the Sale
and Servicing Agreement and the Indenture to be consummated on the Closing
Date shall be consummated on such date.
SECTION 4.02. CONDITIONS TO OBLIGATION OF SELLER. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the satisfaction
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Purchaser hereunder shall be true and correct on the
Closing Date with the same effect as if then made, and the Purchaser shall
have performed all obligations to be performed by it hereunder on or prior
to the Closing Date.
(b) RECEIVABLES PURCHASE PRICE. On the Closing Date, the Purchaser
shall have delivered to the Seller the purchase price specified in SECTION
2.01.
SECTION 4.03. JUNIOR LIENS ON FINANCED EQUIPMENT. The Seller agrees not
to exercise its right to foreclose upon, and will not transfer to third parties
its rights with respect to, any junior liens on any item of Financed Equipment
if such junior liens have not been assigned to the Purchaser pursuant to SECTION
2.01, until (i) the related Receivable has been paid in full or (ii) the related
first priority lien on the Financed Equipment assigned to the Purchaser pursuant
to SECTION 2.01 has been foreclosed upon or released.
ARTICLE V
COVENANTS OF THE SELLER AND THE PURCHASER
The Seller and the Purchaser agree with each other as follows; PROVIDED,
HOWEVER, that to the extent that any provision of this Article conflicts with
any provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
SECTION 5.01. PROTECTION OF RIGHT, TITLE AND INTEREST. (a) FURTHER
ASSURANCES. The Seller shall take all actions to preserve and protect the
right, title and interest of the Purchaser in and to the Receivables and the
other property included in the Owner Trust Estate. The Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
purpose of this paragraph.
(b) NAME CHANGE. Within 15 days after the Seller makes any change in its
name, identity or corporate structure, the Seller shall give the Purchaser
notice of any such change.
13
SECTION 5.02. OTHER LIENS OR INTERESTS. Except for the conveyances
hereunder and pursuant to the Sale and Servicing Agreement, the Indenture and
the other Basic Documents, the Seller will not sell, pledge, assign or transfer
to any Person, or grant, create, incur, assume or suffer to exist any Lien on,
any interest in, to and under the Receivables, and the Seller shall defend the
right, title and interest of the Purchaser in, to and under the Receivables
against all claims of third parties claiming through or under the Seller or any
Dealer; PROVIDED, HOWEVER, that the Seller's obligations under this Section
shall terminate one year and one day after the termination of the Trust pursuant
to the Trust Agreement.
SECTION 5.03. CHIEF EXECUTIVE OFFICE. During the term of the Receivables,
the Seller will maintain its chief executive office in one of the United States,
except Louisiana or Vermont.
SECTION 5.04. CORPORATE EXISTENCE. (a) During the term of this Agreement,
the Purchaser will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of Nevada and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the Sale and Servicing Agreement and the transactions contemplated
hereby.
(b) The Seller will not take any action or fail to take any action if such
act or omission would cause the Purchaser not to observe the covenants set forth
in SECTION 5.04(C) of this Agreement or to violate the provisions of the
Purchaser's certificate of incorporation.
(c) The Purchaser and the Seller agree that Purchaser's and the Seller's
businesses shall be conducted as follows, and neither Purchaser nor the Seller
shall take any action or fail to take any action if such act or omission would
cause such businesses not to be conducted as follows:
(i) The Purchaser will maintain both an office at which its business
is and will be conducted and a telephone number separate from the Seller or
any of the Seller's Affiliates.
(ii) At least two of the Purchaser's directors are not and will not be
directors, officers or employees of the Seller or any of the Seller's
Affiliates.
(iii) The Purchaser will maintain corporate records and books and
accounts separate from those of the Seller or any of the Seller's
Affiliates.
(iv) Except as expressly permitted by the Sale and Servicing Agreement
with respect to collections on the Receivables prior to the transfer of
such collections to the Collection Account, the Purchaser's funds will not
be commingled with those of the Seller or any of the Seller's Affiliates,
and the Purchaser shall maintain bank accounts separate from those of the
Seller or any of the Seller's Affiliates.
14
(v) The Seller shall maintain records permitting a determination on a
daily basis of the amount and location of any of its funds which are
commingled as permitted under CLAUSE (IV) above.
(vi) The Board of Directors of the Purchaser will take appropriate
corporate action (including without limitation holding meetings or acting
by unanimous consent) to authorize all of the Purchaser's corporate
actions, and minutes shall be maintained by the Purchaser separate and
apart from those of the Seller or any of the Seller's Affiliates.
(vii) The Purchaser shall at all times be adequately capitalized to
engage in the transactions contemplated at its formation.
(viii) The Purchaser shall not incur or guarantee any debt other than
under the Sale and Servicing Agreement, nor shall the Purchaser make any
loans, other than as permitted by the Purchaser's Certificate of
Incorporation.
(ix) The Purchaser shall not engage in any transaction with the Seller
or any of the Seller's Affiliates on terms more favorable than in a similar
transaction involving a third party.
(x) The Purchaser shall at all times use its own stationery.
(xi) The Purchaser shall always be described as a separate
corporation, and never as a department, division or otherwise of the Seller
or any of the Seller's Affiliates.
(xii) The Purchaser shall act solely in its own corporate name and
through its own authorized officers and agents. Neither the Purchaser nor
any of Purchaser's Affiliates shall be appointed agent of the Seller,
except as expressly provided for by the Sale and Servicing Agreement and
the Administration Agreement.
(xiii) The data and records (including computer records) used by the
Purchaser or the Seller in the collection and administration of the
Receivables shall reflect the Purchaser's ownership interest therein.
(xiv) Other than organizational expenses, the Purchaser shall be
responsible for the payment of all expenses, indebtedness and other
obligations incurred by it.
(xv) The Purchaser shall at all times hold itself out to the public
under the Purchaser's own name as a legal entity separate and distinct from
the Seller and any of the Seller's Affiliates.
(xvi) None of the Purchaser's funds nor any of the funds held by the
Seller on behalf of the Purchaser or the holders of the Certificates or the
Notes shall be invested in securities issued by the Seller or any of the
Seller's Affiliates.
15
(d) The Purchaser and the Seller will each furnish to the other on or
before April 30 of each year for so long as any Certificate or Note remains
outstanding an Officer's Certificate to the effect that all of its obligations
under this SECTION 5.04 have been fulfilled throughout the preceding calendar
year, or, if there has been any default in the fulfillment of any such
obligations, specifying each such default known to the signer thereof and the
nature and status thereof.
(e) The Seller will not transfer or assign any interest in the Purchaser
except pursuant to an instrument under which the transferee or assignee of such
interest expressly assumes the performance of all covenants of the Seller to be
performed or observed under this SECTION 5.04.
(f) The annual audited financial statements of the Purchaser and the
Seller will reflect the results of the issuance of the Certificates in
accordance with generally accepted accounting principles and also disclose that
the assets of the Seller are not available to pay creditors of the Purchaser or
any other Affiliate of the Seller.
SECTION 5.05. INDEMNIFICATION. (a) The Seller shall indemnify the
Purchaser for any liability as a result of the failure of a Receivable to be
originated in compliance with all requirements of law and for any breach of any
of its representations and warranties contained herein, other than the
representations and warranties made pursuant to SECTION 3.02(B) for which the
sole remedy shall be provided by SECTION 6.02 hereof; PROVIDED, HOWEVER, that
the Seller shall indemnify the Purchaser for any liability arising from a breach
of SECTION 3.02(B)(II), (III) and (XXV). These indemnity obligations shall be
in addition to any obligation that the Seller may otherwise have.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. OBLIGATIONS OF SELLER. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 6.02. REPURCHASE EVENTS. (a) The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Noteholders, the Owner Trustee and the Certificateholders that the
occurrence of a breach of any of the Seller's representations and warranties
contained in SECTION 3.02(B) (other than the representation and warranty
contained in Section 3.02(B)(XXV)) in respect of a Receivable shall constitute
an event obligating the Seller to repurchase such Receivable ("Repurchase
Events"), at the Purchase Amount from the Purchaser or from the Trust.
(b) These repurchase obligations of the Seller shall constitute the sole
remedies to the Purchaser, the Indenture Trustee, the Noteholders, the Owner
Trustee or the Certificateholders against the Seller with respect to any
Repurchase Event.
16
(c) The terms and conditions of the Seller's obligation to enforce its
right of repurchase pursuant to this Section 6.02 shall be governed by Section
3.02 of the Sale and Servicing Agreement.
SECTION 6.03. PURCHASER ASSIGNMENT OF REPURCHASED RECEIVABLES. With
respect to all Receivables repurchased by the Seller pursuant to this Agreement,
the Purchaser shall assign, without recourse, representation or warranty, to the
Seller all the Purchaser's right, title and interest in and to such Receivables,
and all security and documents relating thereto.
SECTION 6.04. TRUST. The Seller acknowledges and agrees that (a) the
Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such Receivables
and such rights to the Indenture Trustee and (c) the representations and
warranties contained in this Agreement and the rights of the Purchaser under
this Agreement, including under SECTION 6.02, are intended to benefit the Trust,
the Certificateholders and the Noteholders (and may be enforced directly by the
Indenture Trustee on behalf of the Noteholders and by the Owner Trustee on
behalf of the Trust or the Certificateholders). The Seller hereby consents to
all such sales and assignments.
SECTION 6.05. AMENDMENT. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written
amendment duly executed and delivered by the Seller and the Purchaser,
without the consent of the Noteholders or the Certificateholders, 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 Certificateholders; PROVIDED that such amendment
will not, in the Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or any Certificateholder or the tax
characterization of the Notes or the Certificates. This Agreement may also be
amended by the Seller and the Purchaser, with prior written notice to the
Rating Agencies, with the consent of the holders of Notes evidencing a
majority in the Outstanding Amount of the Notes and the holders of
Certificates evidencing a majority of the Certificate Balance for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights of
Noteholders or Certificateholders; 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 Noteholders or
Certificateholders or (ii) reduce the aforesaid percentage of the Notes and
Certificates which are required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and the Certificates.
SECTION 6.06. WAIVERS. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude and any other or further exercise
thereof or the exercise of any other power, right or remedy.
SECTION 6.07. NOTICES. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt
17
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller, to Caterpillar Financial Services Corporation, 0000 Xxxx Xxx
Xxxxxx, Xxxxxxxxx, XX 00000-0000, (000) 000-0000; (b) in the case of the
Purchaser, to Caterpillar Financial Funding Corporation, Greenview Plaza, 0000
Xxxx Xxxxxxxx Xxxx, Xxxxx X-0X, Xxx Xxxxx, Xxxxxx 00000 (702) 735-2514; (c) in
the case of Moody's, to Xxxxx'x Investors Service, Inc., ABS Monitoring
Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and (d) in the case of
Standard & Poor's, to Standard & Poor's Ratings Services, 00 Xxxxxxxx (00xx
Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 6.08. COSTS AND EXPENSES. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement, and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.
SECTION 6.09. REPRESENTATIONS OF SELLER AND PURCHASER. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to this Agreement shall remain in
full force and effect and will survive the closing under SECTION 2.02.
SECTION 6.10. CONFIDENTIAL INFORMATION. The Purchaser agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except in connection with the enforcement of the Purchaser's rights hereunder,
under the Receivables, under the Sale and Servicing Agreement or the Indenture
or any other Basic Document or as required by any of the foregoing or by law.
SECTION 6.11. HEADINGS AND CROSS-REFERENCES. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
SECTION 6.12. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
CATERPILLAR FINANCIAL FUNDING
CORPORATION
By:
---------------------------------------
Name:
Title:
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By:
----------------------------------------
Name:
Title:
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement (the
"Purchase Agreement") dated as of [_________ __, ____], between the undersigned
and Caterpillar Financial Funding Corporation (the "Purchaser"), the undersigned
does hereby sell, assign, transfer, set over and otherwise convey unto the
Purchaser, without recourse, (i) all right, title and interest of the Seller, in
and to the Receivables, and all moneys (including accrued interest) due
thereunder on and after Cut-off Date; (ii) the interests of the Seller in the
security interests in the Transaction Equipment granted by the Obligors pursuant
to the Receivables and any other interest of the Seller in such Transaction
Equipment; (iii) the interest and rights of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage, credit life or
disability insurance policies relating to the Financed Equipment or Obligors, as
the case may be; (iv) the interest of the Seller in any proceeds from recourse
to or other payments by Dealers on Receivables; and (v) the proceeds of any and
all of the foregoing.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of [_________ __, ____].
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By:
--------------------------
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
