Exhibit 10.1
Purchase Agreement
dated as of July 1, 2002
EXECUTION COPY
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CATERPILLAR FINANCIAL SERVICES CORPORATION
AND
CATERPILLAR FINANCIAL FUNDING CORPORATION
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PURCHASE AGREEMENT
Dated as of July 1, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS........................................................ 1
SECTION 1.01. Definitions........................................................... 1
ARTICLE II CONVEYANCE OF RECEIVABLES.................................................. 3
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........................................... 5
SECTION 2.05. Acceptance by Purchaser of the Receivables; Certification by
the Indenture Trustee......................................................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES............................................. 6
SECTION 3.01. Representations and Warranties of Purchaser........................... 6
ARTICLE IV CONDITIONS................................................................. 12
SECTION 4.01. Conditions to the Obligation of the Purchaser......................... 12
SECTION 4.02. Conditions to Obligation of Seller.................................... 13
ARTICLE V COVENANTS OF THE SELLER AND THE PURCHASER.................................. 14
SECTION 5.01. Protection of Right, Title and Interest............................... 14
SECTION 5.02. Other Liens or Interests.............................................. 14
SECTION 5.03. Chief Executive Office................................................ 14
SECTION 5.04. Corporate Existence................................................... 14
ARTICLE VI MISCELLANEOUS PROVISIONS................................................... 17
SECTION 6.01. Obligations of Seller................................................. 17
SECTION 6.02. Repurchase Events..................................................... 17
SECTION 6.03. Purchaser Assignment of Repurchased Receivables....................... 17
SECTION 6.04. Trust................................................................. 18
SECTION 6.05. Amendment............................................................. 18
SECTION 6.06. Waivers............................................................... 18
SECTION 6.07. Notices............................................................... 18
SECTION 6.08. Costs and Expenses.................................................... 19
SECTION 6.09. Representations of Seller and Purchaser............................... 19
SECTION 6.10. Confidential Information.............................................. 19
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 6.11. Headings and Cross-References......................................... 19
SECTION 6.12. Governing Law......................................................... 19
SECTION 6.13. Counterparts.......................................................... 19
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PURCHASE AGREEMENT dated as of July 1, 2002, 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 and finance
lease 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 2002-A (the "Trust"), which Trust will issue
an Asset Backed Certificate (the "Certificate") representing a fractional
undivided interest in, and Class A-1 1.818% Asset Backed Notes, Class A-2 2.23%
Asset Backed Notes, Class A-3 3.15% Asset Backed Notes and the Class B 4.03%
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 July 25, 2002.
"Contract" shall have the meaning given such term in the Sale and
Servicing Agreement.
"Indenture" shall mean the Indenture dated as of July 1, 2002 between
the Trust and Bank One, National Association, 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, limited liability company,
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 July 16, 2002) pursuant to
which the Notes were offered.
"Purchaser" shall mean Caterpillar Financial Funding Corporation, a
Nevada corporation, its successors and assigns.
"Receivable" shall have the meaning given such term in the Sale and
Servicing Agreement.
"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 July 1, 2002, 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.
(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
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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 $633,882,224 in Contract Balance of Receivables, the
Purchaser shall (i) deliver to or upon the order of the Seller an amount equal
to $613,493,112 in cash and (ii) accept a capital contribution from the Seller
equal to $20,389,112. 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 interests of the Seller in the security interests in the
Transaction Equipment granted by Obligors pursuant to the Receivables
and any other interest of the Seller in such Transaction Equipment;
(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 of repossessed or
returned Transaction Equipment;
(e) the interest of the Seller in any proceeds from recourse to
or other payments by Dealers on Receivables; and
(f) the proceeds of any and all of the foregoing.
It is the express intent of the parties hereto that the conveyance of
the Receivables by the Seller to the Purchaser as provided in this Agreement be,
and be construed as, a sale of the
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Receivables by the Seller to the Purchaser. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Receivables by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
However, in the event, notwithstanding the intent of the parties, the
Receivables are held to be property of the Seller, or if for any reason this
Agreement is held or deemed to create a security interest in the Receivables
then, (a) this Agreement shall also be deemed to be a security agreement within
the meaning of Article 9 of the UCC; and (b) the conveyance provided for in this
Agreement shall be a grant by the Seller to the Purchaser of a security interest
in and to all of the Seller's right, title, and interest, whether now owned or
hereafter acquired, in and to the property described in clauses (a) through (f)
above, in order to secure the obligations of the Seller hereunder. The
possession by the Custodian of the Contracts and other property shall be deemed
to be possession by the secured party or possession by a purchaser for purposes
of perfecting the security interest pursuant to the UCC (including, without
limitation, Sections 9-313 and 9-314 thereof). Notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents of, or persons holding for, the Purchaser or its assignee (as
applicable) for the purpose of perfecting such security interest under
applicable law. In connection herewith, the Purchaser (or its assignee) shall
have all of the rights and remedies of a secured party and creditor under the
UCC.
Any assignment of the interest of the Purchaser pursuant to this Section
2.01 shall also be an assignment of the security interest created hereby. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement creates
a security interest in or lien on the Receivables, such security interest or
lien would be a perfected security interest or lien of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement.
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.
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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 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
initialed by the Obligor) and relate 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 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
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Purchase Amount to the Purchaser. The sole remedy of the Issuer, the
Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholder 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 LLP, 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
agreements related to the Notes and the other Basic Documents.
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.
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(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.
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
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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
Document, the performance by the Seller of the transactions
contemplated by this Agreement or any other Basic Document and
the fulfillment by the Seller of the terms hereof or thereof,
have been obtained or have been completed and are in full force
and effect (other than approvals, authorizations, consents,
orders or other actions which if not obtained or completed or in
full force and effect would not have a material adverse effect on
the Seller or upon the collectability of any Receivable or upon
the ability of the Seller to perform its obligations under this
Agreement).
(b) The Seller makes the following representations and warranties
as to the Receivables on which the 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 accuracy of any of its representations.
Such representations and warranties speak as of the execution and
delivery of this Agreement but shall survive the sale, transfer and
assignment of the Receivables to the 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 (subject to
paragraph
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(iv) below) first priority security interest in favor of the
Seller in the Financed Equipment, and if applicable, a valid,
subsisting and enforceable (subject to paragraph (iv) below)
security interest in favor of the Seller in the
Cross-Collateralized Equipment, which security interests are
assignable by the Seller to the Purchaser, by the Purchaser to
the Issuer and by the Issuer to the Indenture Trustee, (C)
contains customary and enforceable (subject to paragraph (iv)
below) provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of
the benefits of the security, and (D) provides for fixed payments
(except as described below) on a periodic basis, yields interest
at a fixed-rate (in the case of Receivables related to an
Installment Sales Contract) and is prepayable without premium or
penalty at any time. The fixed payments provided for are
sufficient to amortize the Amount Financed of such Receivable by
maturity and yield interest at the APR. (ii) Schedule of
Receivables. The information set forth in the Schedule of
Receivables to this Agreement is true and correct in all material
respects as of the opening of business on the Cut-off Date and no
selection procedures believed to be adverse to the Noteholders or
the Certificateholder 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 or
lease of the Financed Equipment complied at the time it was
originated or made, and at the execution of this Agreement
complies in all material respects, with all requirements of
applicable federal, state and local laws and regulations
thereunder, including usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Reserve Board's Regulations B and S, and other equal credit
opportunity and disclosure laws.
(iv) Binding Obligations. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing
of the Obligor, enforceable by the holder thereof (which as of
the Closing Date is the Seller) in accordance with its terms,
subject to bankruptcy, insolvency and other laws relating to the
enforcement of creditors' rights generally and to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). Such
enforceability has not been and is not adversely affected by
whether or not the Seller was or is qualified to do business in
the state in which the Obligor was or is located.
(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.
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(vii) Prospectus Information. As of the Cut-off Date, each
Receivable conforms and all Receivables in the aggregate conform,
in all material respects, to the description set forth in the
Prospectus, including all statistical data or otherwise.
(viii) No Amendments. No Receivable has been amended such
that the amount of the Obligor's Scheduled Payments has been
increased or decreased, except for increases or decreases
resulting from the inclusion of any premium for forced-placed
physical damage insurance covering the Financed Equipment.
(ix) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with
respect to any Receivable.
(x) No Liens. No liens or claims have been filed for work,
labor or materials relating to any Financed Equipment that are
liens prior to, or equal or coordinate with, the security
interest in the Financed Equipment granted by the Receivable.
(xi) No Default. No Receivable has a payment that is more
than 31 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 31 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.
10
(xiv) Lawful Assignment. No Receivable has been originated
in, or is subject to the laws of, any jurisdiction under which
the sale, transfer and assignment of such Receivable or any
Receivable under this Agreement, the Sale and Servicing Agreement
or the Indenture is unlawful, void or voidable.
(xv) All Actions Taken. All actions necessary to give the
Purchaser a first priority perfected ownership interest in the
Receivables pursuant to the applicable UCC have been taken.
(xvi) Leases. Each Lease, relating to any Receivable (A)
creates a security interest rather than a lease for purposes of
Section 1-201 of the UCC, (B) is not a "consumer lease" within
the meaning of Article 2A of the UCC in any jurisdiction where
said Article 2A has been adopted and governs the construction
thereof, (C) to the best knowledge of Seller, the related Obligor
has accepted the related Financed Equipment leased to it and has
not notified Seller of any defects therein, (D) is by its terms
an absolute and unconditional obligation of the related Obligor,
non-cancelable and except in certain instances involving loss or
damage to the related Financed Equipment, non-prepayable prior to
the expiration of the initial term of such Lease of the related
Obligor, (E) requires the related Obligor to maintain the related
Financed Equipment for its own account, (F) the rights with
respect to such Lease are assignable by the Seller thereunder
without the consent of any Person, (G) is net to the Seller of
any maintenance, taxes, insurance or other expenses and (H)
contains provisions requiring the related Obligor to assume all
risk of loss or malfunction of the related Financed Equipment.
(xvii) Maturity of Receivables. Each Receivable has a
final scheduled payment date due not later than June 2007 as of
the Cut-off Date and the weighted average remaining term of the
Receivables is 37 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 Contract Balance. Each Receivable has an
outstanding Contract Balance of at least $5,004.00 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
"tangible chattel paper" within the meaning of the UCC of the
States of New York and Nevada.
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(xxiii) Obligors. None of the Receivables is due from any
Person which does not have a mailing address in the United States
of America. No Receivable is due from the United States of
America or any State or from any agency, department,
instrumentality or political subdivision of the United States of
America or any State.
(xxiv) One Original. There is only one Original Contract
related to each Receivable. With respect to each Receivable, the
Seller has a perfected, first priority ownership or security
interest in such Receivable, free and clear of all Liens,
encumbrances, security interests or rights of others.
(xxv) Payment Frequency. As of the Cut-off Date and as
shown on the books of the Seller, Receivables having an aggregate
Contract Balance equal to approximately 78.5% of the aggregate
Contract Balance of all Receivables had monthly scheduled
payments; and as of the Cut-off Date and as shown on the books of
the Seller, Receivables having an aggregate Contract Balance
equal to approximately 21.5% of the aggregate Contract Balance of
all Receivables had scheduled payments which have monthly
scheduled payments other than certain months specified therein
for which payment is skipped.
(xxvi) Interest Accrual. Each Receivable related to an
Installment Sales Contract is, as of the Closing Date, accruing
interest.
(xxvii) Notification of Obligors. With respect to each
Dealer Receivable, the related Obligor has been notified with
respect to the assignment of the related Contract to the Seller.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to the Obligation of the 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.
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(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 Delaware 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.
(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.
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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 or type or jurisdiction of organization, the Seller shall
give the Purchaser notice of any such change.
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.
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:
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(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. No employee of the Purchaser shall
engage in any servicing functions with respect to the Receivables
and, with respect to the Purchaser, shall only engage in
corporate governance and clerical functions. So long as the
Purchaser maintains an employee at its office, the Purchaser
shall at all times maintain comprehensive liability and workmen's
compensation insurance (as is customary for commercial
enterprises) in an amount, when taking into account any available
umbrella policy, at least equal to $5,000,000.
(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.
(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. Without limiting the foregoing, the Purchaser shall at
all times maintain capital sufficient to pay its rent, salary of
any employee, and any required insurance from the Closing Date
until the Certificate Final Scheduled Distribution Date.
(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, pledge its assets for the benefit of
any other entity or hold out its credit as being available to
satisfy the obligations of others, other than as permitted by the
Purchaser's Certificate of Incorporation.
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(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 including
the salaries of its employees, indebtedness and other obligations
incurred by it, including a fair and reasonable allocation for
shared office space.
(xv) The 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 and shall correct any known misunderstanding regarding
its separate identity.
(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 Certificate or the Notes shall be invested in securities
issued by the Seller or any of the Seller's Affiliates.
The Purchaser shall at all times maintain a sufficient
number of employees in light of its contemplated business
operations.
At any time the Notes are outstanding, the Seller shall
not (A) dissolve or liquidate, (B) merge or consolidate with any
other entity, (C) sell its assets substantially in their entirety
to any other entity or (D) amend its articles of incorporation,
in each case unless the Rating Agency Condition is satisfied.
(d) The Purchaser and the Seller will each furnish to the other
on or before April 30 of each year (commencing April 30, 2003) 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 the
period from the Closing Date until December 31, 2002, as applicable),
or, if there has
16
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 Notes and
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 Certificateholder that the
occurrence of a breach of any of the Seller's representations and warranties
contained in Section 3.02(b) (other than the representation and warranty
contained in Section 3.02(b)(xxv)) in respect of a Receivable shall constitute
an event obligating the Seller to repurchase such Receivable ("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 Certificateholder against the
Seller with respect to any Repurchase Event.
(c) The terms and conditions of the Purchaser'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
17
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 Certificateholder and the Noteholders (and may be enforced directly by the
Indenture Trustee on behalf of the Noteholders and by the Owner Trustee on
behalf of the Trust or the Certificateholder). 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 Certificateholder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
Certificateholder; provided that such amendment will not, 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 Seller and the Purchaser, with prior
written notice to the Rating Agencies, with the consent of the Noteholders
evidencing a majority in the Outstanding Amount of the Notes and the
Certificateholder for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of Noteholders or the Certificateholder; provided,
however, that no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that are required to be made for the benefit of
Noteholders or the Certificateholder or (ii) reduce the aforesaid percentage of
the Notes and the Certificate which are required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes and
Certificate.
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 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, 0000
X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (702) 735-2514; (c) in the
case of Moody's, to Xxxxx'x Investors Service, Inc., ABS Monitoring Department,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (d) in the case of Standard &
Poor's, to Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of
18
Asset Backed Surveillance Department; and (e) in the case of Fitch, to Fitch
Ratings--Asset-Backed Securities, 00 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: ABS Monitoring (Equipment Leases); 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.
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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: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: /s/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SCHEDULE A
SCHEDULE OF RECEIVABLES
[a copy may be obtained from the indenture trustee]
Schedule A-1
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
(the "Purchase Agreement") dated as of July 1, 2002, between the undersigned and
Caterpillar Financial Funding Corporation (the "Purchaser"), the undersigned
does hereby sell, assign, transfer and otherwise convey unto the Purchaser,
without recourse, (i) all right, title and interest of the undersigned in and to
the Receivables, and all moneys (including accrued interest) due thereunder on
and after the Cut-off Date; (ii) the interests of the undersigned in the
security interests in the Transaction Equipment granted by the Obligors pursuant
to the Receivables and any other interest of the undersigned in such Transaction
Equipment, including Liquidation Proceeds; (iii) the interest and rights of the
undersigned in any proceeds with respect to the Receivables from claims on any
physical damage, credit life, liability or disability insurance policies
relating to the Financed Equipment or Obligors, as the case may be; (iv) the
interest of the undersigned in any proceeds from recourse to or other payment by
Dealers on Receivables; and (v) the proceeds of any and all of the foregoing.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of July 25, 2002.
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: _________________________________
Name: Xxxxx X. Xxxxxxx
Title: Funding Manager
