1
Exhibit 10.2
Administration Agreement
dated as of July 1, 2001
2
--------------------------------------------------------------------------------
CATERPILLAR FINANCIAL ASSET TRUST 2001-A
Class A-1 3.74% Asset Backed Notes
and
Class A-2 4.11% Asset Backed Notes
Class A-3 4.85% Asset Backed Notes
Class B 5.72% Asset Backed Notes
ADMINISTRATION AGREEMENT
Dated as of July 1, 2001
--------------------------
CATERPILLAR FINANCIAL SERVICES CORPORATION
Administrator
--------------------------------------------------------------------------------
3
TABLE OF CONTENTS
PAGE
1. DUTIES OF ADMINISTRATOR............................................................. 2
2. RECORDS............................................................................. 7
3. COMPENSATION........................................................................ 7
4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER.................................... 7
5. INDEPENDENCE OF ADMINISTRATOR....................................................... 7
6. NO JOINT VENTURE.................................................................... 8
7. OTHER ACTIVITIES OF ADMINISTRATOR................................................... 8
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR......................... 8
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL..................................... 9
10. NOTICES............................................................................. 9
11. AMENDMENTS......................................................................... 10
12. SUCCESSORS AND ASSIGNS............................................................. 10
13. GOVERNING LAW...................................................................... 11
14. HEADINGS........................................................................... 11
15. COUNTERPARTS....................................................................... 11
16. SEVERABILITY....................................................................... 11
17. NOT APPLICABLE TO CATERPILLAR FINANCIAL SERVICES CORPORATION IN OTHER
CAPACITIES......................................................................... 11
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND TRUSTEE............................... 11
19. THIRD-PARTY BENEFICIARY............................................................ 11
20. SUCCESSOR SERVICER AND ADMINISTRATOR............................................... 11
21. NONPETITION COVENANTS.............................................................. 12
EXHIBIT A - Form of Power of Attorney
-i-
4
ADMINISTRATION AGREEMENT dated as of July 1, 2001, among CATERPILLAR
FINANCIAL ASSET TRUST 2001-A, a Delaware business trust (the "Issuer"),
CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation, as
administrator (the "Administrator"), CATERPILLAR FINANCIAL FUNDING CORPORATION,
a Nevada corporation (the "Seller"), and BANK ONE, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS the Issuer is issuing the Class A-1 3.74% Asset Backed Notes (the
"A-1 Notes"), the Class A-2 4.11% Asset Backed Notes (the "Class A-2 Notes"),
the Class A-3 4.85% Asset Backed Notes (the "A-3 Notes") and the Class B 5.72%
Asset Backed Notes (the "Class B Notes"; together with the A-1 Notes, A-2 Notes
and the Class A-3 Notes, the "Notes") pursuant to the Indenture dated as of July
1, 2001 (as amended, modified or supplemented from time to time in accordance
with the provisions thereof, the "Indenture"), between the Issuer and the
Indenture Trustee.
WHEREAS the Issuer has entered into certain agreements in connection with
the issuance of the Notes and of certain beneficial ownership interests of the
Issuer, including (i) a Sale and Servicing Agreement dated as of July 1, 2001
(the "Sale and Servicing Agreement") (capitalized terms used herein and not
defined herein shall have the meanings assigned such terms in the Sales and
Servicing Agreement, or if not defined therein, in the Indenture) among the
Issuer, Caterpillar Financial Services Corporation ("CFSC"), as servicer, and
the Seller, (ii) a Depository Agreement dated July 24, 2001 (the "Depository
Agreement") among the Issuer, the Indenture Trustee and The Depository Trust
Company, (iii) the Indenture, and (iv) the Custodial Agreement dated as of July
1, 2001 (the "Custodial Agreement") among CFSC, the Seller, the Issuer, the
Indenture Trustee and Bank One, National Association, as custodian (the
"Custodian") (the Sale and Servicing Agreement, the Depository Agreement, the
Custodial Agreement and the Indenture being hereinafter referred to collectively
as the "Related Agreements");
WHEREAS pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the beneficial ownership interests in the Issuer (the holders of such
interests being referred to herein as the "Owners");
WHEREAS the Issuer and the Owner Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee referred to in
the preceding clause, and to provide such additional services consistent with
the terms of this Agreement and the Related Agreements as the Issuer and the
Owner Trustee may from time to time request;
WHEREAS the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
5
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Duties of Administrator. (a) Duties with Respect to the Related
Agreements. (i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Depository Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer and the Owner Trustee under the
Related Agreements. The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's or the Owner Trustee's duties under the Related Agreements.
The Administrator shall prepare for execution by the Issuer or the Owner Trustee
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to any Related Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that it is the duty of the
Issuer or the Owner Trustee to take pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the following
matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note Register
(Section 2.04);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified
record date and the notification of the Indenture Trustee and Noteholders
with respect to special payment dates, if any (Section 2.07(c));
(D) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes, if any, and
delivery of the same to the Indenture Trustee (Section 2.02);
(E) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents required for
the release of collateral (Section 2.09);
(F) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
(G) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.03);
(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each other
instrument and agreement included in the Trust Estate;
2
6
(I) the preparation of all supplements, amendments,
financing statements, continuation statements, if any, instruments of
further assurance and other instruments, in accordance with Section 3.05
of the Indenture, necessary to protect the Trust Estate (Section 3.05);
(J) the obtaining of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel, in accordance with
Section 3.06 of the Indenture, as to the Trust Estate, and the annual
delivery of the Officer's Certificate and certain other statements, in
accordance with Section 3.09 of the Indenture, as to compliance with the
Indenture (Sections 3.06 and 3.09);
(K) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to
perform its duties under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and the
Rating Agencies of a Servicer Default pursuant to the Sale and Servicing
Agreement and, if such Servicer Default arises from the failure of the
Servicer to perform any of its duties under the Sale and Servicing
Agreement, the taking of all reasonable steps available to remedy such
failure (Section 3.07(d));
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its obligation
under the Indenture (Section 3.11(b));
(N) the delivery of notice to the Indenture Trustee of each
Event of Default and each default by the Servicer or Seller under the
Sale and Servicing Agreement (Section 3.19);
(O) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.01);
(P) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate in a
commercially reasonable manner if an Event of Default shall have occurred
and be continuing (Section 5.04);
(Q) the preparation and delivery of notice to Noteholders
of the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.08);
(R) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the resignation
or removal of any co-trustee or separate trustee (Sections 6.08 and
6.10);
3
7
(S) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.01);
(T) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders (Section
7.03);
(U) the opening of one or more accounts in the Trust's
name, the preparation of Issuer Orders, Officers' Certificates and
Opinions of Counsel and all other actions necessary with respect to
investment and reinvestment of funds in the Trust Accounts (Sections 8.02
and 8.03);
(V) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate as
defined in the Indenture (Sections 8.04 and 8.05);
(W) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.01, 9.02 and 9.03);
(X) the execution of new Notes conforming to any
supplemental indenture (Section 9.06);
(Y) the notification of Noteholders of redemption of the
Notes (Section 10.02);
(Z) the preparation of all Officers' Certificates, Opinions
of Counsel and Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.01(a));
(AA) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.01(b));
(BB) the notification of the Rating Agencies, upon the
failure of the Indenture Trustee to give such notification, of the
information required pursuant to Section 11.04 of the Indenture (Section
11.04);
(CC) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.06);
(DD) the recording of the Indenture, if applicable (Section
11.15); and
4
8
(EE) causing the Servicer to comply with Sections 4.09,
4.10, 4.11 and 5.06 of the Sale and Servicing Agreement.
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under the
Indenture (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and disbursements of its
agents and either in-house counsel or outside counsel, but not both),
except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and
to hold them harmless against, any losses, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Indenture, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and to
hold them harmless against, any losses, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Trust Agreement, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties under the Trust Agreement.
(b) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such calculations
and shall prepare for execution by the Issuer or the Owner Trustee or shall
cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Related Agreements. Subject to Section 5 of this Agreement,
and in accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax is
imposed on the Trust's payments (or
5
9
allocations of income) to the "Owner" as contemplated in Section 5.02(c) of the
Trust Agreement. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section 5.05 of the
Trust Agreement with respect to, among other things, accounting and reports to
the Certificateholder.
(iv) The Administrator may satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of the
Administrator, a firm of independent public accountants (the "Accountants")
acceptable to the Owner Trustee which shall perform the obligations of the
Administrator thereunder. In connection with paragraph (ii) above, the
Accountants will provide prior to August 27, 2001 a letter in form and substance
satisfactory to the Owner Trustee as to whether any tax withholding is then
required and, if required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Accountants shall be required to
update the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no longer
be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than would be available
from unaffiliated parties.
(vii) It is the intention of the parties hereto that the
Administrator shall, and the Administrator hereby agrees to, execute on behalf
of the Issuer or the Owner Trustee all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to the Basic Documents.
In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator, and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the
purpose of executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions.
(c) Non-Ministerial Matters. (i) With respect to matters that in
the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not
6
10
have withheld consent or provided an alternative direction. For the purpose of
the preceding sentence, "non-ministerial matters" shall include, without
limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent or Trustee
of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x) make
any payments to the Noteholders or the Certificateholder under the Related
Agreements, (y) sell the Trust Estate pursuant to Section 5.04 of the Indenture
or (z) take any other action that the Issuer directs the Administrator not to
take on its behalf.
2. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuer, the Owner Trustee, the
Indenture Trustee and the Seller at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to $500 per month which shall be payable in accordance with Section
5.04 of the Sale and Servicing Agreement. The Seller shall also reimburse the
Administrator for any of its liabilities and expenses related to its performance
hereunder or under any Related Document (including without limitation those
expenses set forth in Section 1(a)(ii) of this Agreement).
4. Additional Information To Be Furnished to Issuer. The Administrator
shall furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. Independence of Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to the
supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Issuer, the Administrator shall have no authority to
act for or represent the Issuer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer or the Owner Trustee.
7
11
6. No Joint Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator. (a) This
Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) and (f), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days prior written
notice.
(c) Subject to Section 8(e) and (f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60 days
prior written notice.
(d) Subject to Section 8(e) and (f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default cannot be cured in
such time, shall not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they become due.
8
12
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this Section shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within seven days after the happening of
such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
take all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
Caterpillar Financial Asset Trust 2001-A
Chase Manhattan Bank USA, National Association
c/o ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
500 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Road, OPS4
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
(b) if to the Administrator, to
Caterpillar Financial Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(c) if to the Indenture Trustee, to
Bank One, National Association
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
9
13
(d) if to the Seller, to
Caterpillar Financial Funding Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above, except that notices to the
Indenture Trustee are effective only upon receipt.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholder, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholder; provided, however, that such amendment
will not, in the Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or the Certificateholder or the federal tax
characterization of the Notes. This Agreement may also be amended by the Issuer,
the Administrator and the Indenture Trustee with the written consent of the
Owner Trustee and the holders of Notes evidencing a majority in the Outstanding
Amount of the Notes and the holder of the Certificate for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or the
Certificateholder; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or the Certificateholder or (ii) reduce
the aforesaid percentage of the holders of Notes and the holder of the
Certificate which are required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and the Certificate.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Seller, which permission shall not be unreasonably
withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
10
14
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall together constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
17. Not Applicable to Caterpillar Financial Services Corporation in Other
Capacities. Nothing in this Agreement shall affect any obligation Caterpillar
Financial Services Corporation may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been signed by Chase Manhattan Bank USA, National Association not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Chase Manhattan Bank USA, National Association in its
individual capacity or any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been signed by Bank One, National Association not in its
individual capacity but solely as Indenture Trustee and in no event shall Bank
One, National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
20. Successor Servicer and Administrator. The Administrator shall
undertake, as promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 8.02 of the
Sale and Servicing Agreement, to enforce the
11
15
provisions of Section 8.02 with respect to the appointment of a successor
Servicer. Such successor Servicer shall, upon compliance with the last sentence
of the first paragraph of Section 8.02 of the Sale and Servicing Agreement,
become the successor Administrator hereunder; provided, however, that if the
Indenture Trustee shall become such successor Administrator, the Indenture
Trustee shall not be required to perform any obligations or duties or conduct
any activities as successor Administrator that would be prohibited by law and
not within the banking and trust powers of the Indenture Trustee. In such event,
the Indenture Trustee shall appoint a sub-administrator to perform such
obligations and duties.
21. Nonpetition Covenants. (a) Notwithstanding any prior termination of
this Agreement, the Seller, the Administrator, the Owner Trustee and the
Indenture Trustee shall not, prior to the date which is one year and one day
after the termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Issuer, the Administrator, the Owner Trustee and the Indenture Trustee shall
not, prior to the date which is one year and one day after the termination of
this Agreement with respect to the Seller, acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
under any Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
12
16
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CATERPILLAR FINANCIAL ASSET
TRUST 2001-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Administrator
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
17
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF ____________ )
)
COUNTY OF ___________ )
KNOW ALL MEN BY THESE PRESENTS, that ______________________, a
____________________________, not in its individual capacity but solely as owner
trustee ("Owner Trustee") for the Caterpillar Financial Asset Trust 2001-A
("Trust"), does hereby make, constitute and appoint
____________________________, as Administrator under the Administration
Agreement (as defined below), and its agents and attorneys, as Attorneys-in-Fact
to execute on behalf of the Owner Trustee or the Trust all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Owner Trustee or the Trust to prepare, file or deliver pursuant to the
Related Documents (as defined in the Administration Agreement), including,
without limitation, to appear for and represent the Owner Trustee and the Trust
in connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, and with full power to perform any and all
acts associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restriction on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power of
Attorney, the term "Administration Agreement" means the Administration Agreement
dated as of July 1, 2001, among the Trust, Caterpillar Financial Services
Corporation, as Administrator and Servicer, and Bank One, National Association,
as Indenture Trustee, as such may be amended from time to time.
All powers of attorney for this purpose heretofore filed or executed by
the Owner Trustee are hereby revoked.
EXECUTED this [___] day of July, 2001.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Owner Trustee,
By:
-----------------------------------------------
Name:
Title:
