Exhibit 4.2
Amended and Restated Trust Agreement
dated as of November 1, 1997
[Execution Copy]
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CATERPILLAR FINANCIAL ASSET TRUST 1997-B
AMENDED AND RESTATED TRUST AGREEMENT
between
CATERPILLAR FINANCIAL FUNDING CORPORATION,
as Seller
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of November 1, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms........................................ 1
SECTION 1.02. Other Definitional Provisions............................ 3
ARTICLE II
ORGANIZATION
SECTION 2.01. Name..................................................... 3
SECTION 2.02. Office................................................... 4
SECTION 2.03. Purpose and Powers....................................... 4
SECTION 2.04. Appointment of Owner Trustee............................. 5
SECTION 2.05. Initial Capital Contribution of Trust Estate............. 5
SECTION 2.06. Declaration of Trust..................................... 5
SECTION 2.07. Liability of the Owner................................... 5
SECTION 2.08. Title to Trust Property.................................. 5
SECTION 2.09. Situs of Trust........................................... 5
SECTION 2.10. Representations and Warranties of Seller................. 6
SECTION 2.11. Amended and Restated Trust Agreement..................... 7
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. Initial Ownership........................................ 7
SECTION 3.02. Form of Certificate...................................... 7
SECTION 3.03. Authentication of the Certificate........................ 7
SECTION 3.04. Registration of the Certificate.......................... 7
SECTION 3.06. Persons Deemed Owner..................................... 8
SECTION 3.07. [Reserved]............................................... 8
SECTION 3.08. Maintenance of Office or Agency.......................... 8
SECTION 3.09. Appointment of Paying Agents............................. 8
(i)
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Owner with Respect to Certain Matters.... 9
SECTION 4.02. Action By the Owner with Respect to Certain Matters...... 10
SECTION 4.03. Action By Owner with Respect to Bankruptcy............... 10
SECTION 4.04. Restrictions on Owner's Power............................ 10
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. Establishment of Trust Account........................... 10
SECTION 5.02. Application of Trust Funds............................... 10
SECTION 5.03. Method of Payment........................................ 11
SECTION 5.04. No Segregation of Monies; No Interest.................... 11
SECTION 5.05. Accounting and Report to the Noteholders, the Owner,
the Internal Revenue Service and Others.................. 11
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. General Authority........................................ 12
SECTION 6.02. General Duties........................................... 12
SECTION 6.03. Action Upon Instruction.................................. 12
SECTION 6.04. No Duties Except as Specified in This Agreement or in
Instructions............................................. 13
SECTION 6.05. No Action Except under Specified Documents or
Instructions............................................. 14
SECTION 6.06. Restrictions............................................. 14
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties.......................... 14
SECTION 7.02. Furnishing of Documents.................................. 15
SECTION 7.03. Representations and Warranties........................... 15
SECTION 7.04. Reliance; Advice of Counsel.............................. 16
SECTION 7.05. Not Acting in Individual Capacity........................ 16
SECTION 7.06. Owner Trustee Not Liable for the Certificate, Notes or
Receivables.............................................. 16
SECTION 7.07. Owner Trustee May Own the Certificate and Notes.......... 17
(ii)
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. Owner Trustee's Fees and Expenses........................ 17
SECTION 8.02. Indemnification.......................................... 17
SECTION 8.03. Payments to the Owner Trustee............................ 18
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination of Trust Agreement........................... 18
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. Eligibility Requirements for Owner Trustee.............. 19
SECTION 10.02. Resignation or Removal of Owner Trustee................. 19
SECTION 10.03. Successor Owner Trustee................................. 20
SECTION 10.04. Merger or Consolidation of Owner Trustee................ 21
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee........... 21
ARTICLE XI
FASIT PROVISIONS
..............................................................................22
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Supplements and Amendments.............................. 24
SECTION 12.02. No Legal Title to Owner Trust Estate in the Owner....... 25
SECTION 12.03. Limitations on Rights of Others......................... 25
SECTION 12.04. Notices................................................. 25
SECTION 12.05. Severability............................................ 25
SECTION 12.06. Separate Counterparts................................... 25
SECTION 12.07. Successors and Assigns.................................. 25
SECTION 12.08. Covenant of the Seller.................................. 26
SECTION 12.09. No Petition............................................. 26
SECTION 12.10. No Recourse............................................. 26
SECTION 12.11. Headings................................................ 27
(iii)
SECTION 12.12. GOVERNING LAW........................................... 27
SECTION 12.13. [Reserved].............................................. 27
SECTION 12.14. Seller Payment Obligation............................... 27
EXHIBITS
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EXHIBIT A FORM OF CERTIFICATE...........................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST..................................B-1
(iv)
AMENDED AND RESTATED TRUST AGREEMENT dated as of November 1, 1997, between
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as Seller, and
CHASE MANHATTAN BANK DELAWARE, as Owner Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.01. CAPITALIZED TERMS. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Administration Agreement" means the Administration Agreement dated as of
November 1, 1997, among the Administrator, the Trust, the Seller and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Administrator" means Caterpillar Financial Services Corporation, a
Delaware corporation, or any successor Administrator under the Administration
Agreement.
"Agreement" shall mean this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the Depository
Agreement, the Custodial Agreement, the Notes, the Certificates and the other
documents and certificates delivered in connection therewith.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to
time.
"Certificate" shall mean the certificate evidencing the beneficial interest
of the Owner in the Trust, substantially in the form attached hereto as Exhibit
A.
"Certificate Distribution Account" shall have the meaning assigned to such
term in SECTION 5.01.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B which has been filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the register
mentioned and the registrar appointed pursuant to SECTION 3.04.
"Certificateholder" or "Holder" shall mean the Seller as the registered
holder of the Certificate.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; or at such other address as the Owner
Trustee may designate by notice to the Owner and the Seller, or the principal
corporate trust office of any successor Owner Trustee (the address of which the
successor owner trustee will notify the Seller).
"Indenture Trustee" shall mean The First National Bank of Chicago, not in
its individual capacity but solely as Indenture Trustee under the Indenture, and
any successor Indenture Trustee under the Indenture.
"Depository Agreement" means the agreement among the Trust, the Indenture
Trustee, the Administrator and The Depository Trust Company, dated as of the
Closing Date, substantially in the form of EXHIBIT C to the Indenture.
"Expenses" shall have the meaning assigned to such term in SECTION 8.02.
"Owner" shall mean the Holder.
"Owner Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Sale and Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Owner Trustee" shall mean Chase Manhattan Bank Delaware, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to SECTION 3.09 and shall initially be The Chase Manhattan Bank.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
among the Trust, the Seller, as seller, and Caterpillar Financial Services
Corporation, as servicer, dated as of November 1, 1997, as the same may be
amended, modified or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" shall mean Caterpillar Financial Funding Corporation in its
capacity as Seller hereunder.
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"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the Sale
and Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) All calculations of the amount of interest accrued on the Certificates
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE II
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as
"Caterpillar Financial Asset Trust 1997-B," in which name the Owner Trustee may
conduct the business of
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the Trust, make and execute contracts and other instruments on behalf of the
Trust and xxx and be sued.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Seller.
SECTION 2.03. PURPOSE AND POWERS. (a) The purpose of the Trust is to
engage in the following activities:
(i) to issue the Class A-1 Notes, Class A-2 Notes, the Class A-3
Notes and the Class B Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell $81,000,000 aggregate principal
amount of the Class A-1 Notes, $110,900,000 aggregate principal amount of
Class A-2 Notes, $102,091,000 aggregate principal amount of the Class A-3
Notes and $12,577,000 aggregate principal amount of Class B Notes to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Chase
Securities Inc. and Citicorp Securities, Inc. upon the written order of the
Seller and issue the Certificate in the principal amount of $7,861,558 to
the Seller upon the written order of the Seller;
(ii) with the proceeds of the sale of the Notes and the Certificate,
to pay the Seller the amounts owed pursuant to Section 2.01 of the Sale and
Servicing Agreement, by directing Xxxxxxx Xxxxx as representative of the
Seller to wire transfer such proceeds in accordance with instructions
received from the Seller;
(iii) with the proceeds from capital contributions from the Seller
to pay the organizational, start-up and transactional expenses of the
Trust, and with the proceeds from the sale of the Notes and the
Certificate, to fund the Reserve Account and the Yield Supplement Account;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and distribute
to the Owner pursuant to the terms of the Sale and Servicing Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the Owner and the
Noteholders.
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The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. The Seller hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Seller, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The Seller shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Owner, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, for income
and franchise tax purposes, the Trust shall be treated as a security device and,
therefore, disregarded as an entity separate from its owner. The parties agree
that, unless otherwise required by appropriate tax authorities, the Trust will
file or cause to be filed annual or other necessary returns, reports and other
forms consistent with the characterization of the Trust as a security device for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust.
SECTION 2.07. LIABILITY OF THE OWNER. The Owner shall not have any
personal liability for any liability or obligation of the Trust.
SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.09. SITUS OF TRUST. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be
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made by the Trust only from Delaware or New York. The only office of the Trust
will be at the Corporate Trust Office in Delaware.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller hereby
represents and warrants to the Owner Trustee that:
(a) The Seller is duly organized and validly existing as a
corporation in good standing under the laws of the State of Nevada, with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the failure to so qualify or to
obtain such license or approval would render any Receivable unenforceable
that would otherwise be enforceable by the Seller, the Servicer or the
Owner Trustee.
(c) The Seller has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Seller has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust and the Seller shall have duly authorized such
sale and assignment and deposit to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement has
been duly authorized by the Seller by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of the Seller, or any indenture, agreement or
other instrument to which the Seller is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(e) There are no proceedings or investigations pending, or, to the
best of Seller's knowledge, threatened, before any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties which
(i) assert the invalidity of this Agreement or any of the Basic Documents,
(ii) seek to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, or (iii) seek
any determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents.
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SECTION 2.11. AMENDED AND RESTATED TRUST AGREEMENT. This Agreement amends
and restates in its entirety the Trust Agreement dated as of November 1, 1997
between the Seller and Owner Trustee.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Seller pursuant to SECTION 2.05, the Seller shall be the
sole beneficiary of the Trust. Notwithstanding any other provision of this
Agreement, the interest of the Seller in the Trust (including its interest by
virtue of being the Holder of the Certificate) shall not be transferable.
SECTION 3.02. FORM OF CERTIFICATE. The Certificate shall be issued in an
original certificate principal balance of $7,861,558. The Certificate shall be
executed on behalf of the Trust by manual or facsimile signature of a Trust
Officer of the Owner Trustee. The Certificate bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall, when duly
authenticated pursuant to SECTION 3.03, be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of the Certificate or did not hold such offices at the date of authentication
and delivery of the Certificate.
SECTION 3.03. AUTHENTICATION OF THE CERTIFICATE. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificate in a principal amount
equal to the initial Certificate Balance to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Seller, signed
by its Chairman of the Board, its President, any Vice President, its Treasurer,
its Secretary or any Assistant Treasurer, without further corporate action by
the Seller. The Certificate shall not entitle its holder to any benefit under
this Agreement, or be valid for any purpose, unless there shall appear on the
Certificate a certificate of authentication substantially in the form set forth
in EXHIBIT A, executed by the Owner Trustee or the Owner Trustee's
authentication agent, by manual signature; such authentication shall constitute
conclusive evidence that the Certificate shall have been duly authenticated and
delivered hereunder. The Certificate shall be dated the date of its
authentication.
SECTION 3.04. REGISTRATION OF THE CERTIFICATE. The Certificate Registrar
shall keep or cause to be kept, at the office or agency maintained pursuant to
SECTION 3.08, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall provide for the
registration of the Certificate. The Chase Manhattan Bank shall be the initial
Certificate Registrar. The Certificate shall not be transferrable.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATE. If (a)
the Certificate is mutilated and shall be surrendered to the Certificate
Registrar, or if the Certificate Xxxxxxxxx
0
shall receive evidence to its satisfaction of the destruction, loss or theft of
the Certificate and (b) there shall be delivered to the Certificate Registrar
and the Owner Trustee such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that the Certificate
shall have been acquired by a bona fide purchaser, the Owner Trustee on behalf
of the Trust shall execute and the Owner Trustee, or the Owner Trustee's
authenticating agent, shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and denomination. In connection with the issuance of any new
Certificate under this Section, the Owner Trustee or the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.06. PERSONS DEEMED OWNER. The Owner Trustee or the Certificate
Registrar may treat the Seller, as the Person in whose name the Certificate
shall be registered in the Certificate Register, as the owner of the Certificate
for the purpose of receiving distributions pursuant to SECTION 5.02 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.07. [Reserved]
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in the Borough of Manhattan, in the City of New York, an office or
offices or agency or agencies where notices and demands to or upon the Owner
Trustee in respect of the Certificate and the Basic Documents may be served.
The Owner Trustee initially designates The Chase Manhattan Bank, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its principal corporate trust office for
such purposes. The Owner Trustee shall give prompt written notice to the Seller
of any change in the location of the Certificate Register or any such office or
agency.
SECTION 3.09. APPOINTMENT OF PAYING AGENTS. The Paying Agent shall make
distributions to the Certificateholder from the Certificate Distribution Account
pursuant to SECTION 5.02 and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall initially be The
Chase Manhattan Bank, and any co-paying agent chosen by The Chase Manhattan
Bank, and acceptable to the Owner Trustee. The Chase Manhattan Bank shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. In the event that The Chase Manhattan Bank shall no longer be the
Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
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Agent will hold all sums, if any, held by it for payment to the
Certificateholder in trust for the benefit of the Certificateholder until
such sums shall be paid to the Certificateholder. The Paying Agent shall
return all unclaimed funds to the Owner Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Owner Trustee. The provisions of SECTIONS 7.01, 7.03, 7.04 and 8.01 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as
the Owner Trustee shall act as Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement
to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO OWNER WITH RESPECT TO CERTAIN MATTERS. With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholder in writing of the proposed action and the Holder
shall not have notified the Owner Trustee in writing prior to the 30th day after
such notice is given that the Holder has withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other than
an action to collect on a Receivable) and the compromise of any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on a Receivable);
(b) the election by the Trust to file an amendment to the Certificate
of Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Owner;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the
interests of the Owner; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Trustee or the appointment pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable.
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SECTION 4.02. ACTION BY THE OWNER WITH RESPECT TO CERTAIN MATTERS. The
Owner Trustee shall not have the power, except upon the direction of the Owner,
to (a) remove the Administrator under the Administration Agreement pursuant to
Section 8 thereof, (b) appoint a successor Administrator pursuant to Section 8
of the Administration Agreement, (c) remove the Servicer under the Sale and
Servicing Agreement pursuant to Section 8.01 thereof or (d) except as expressly
provided in the Basic Documents, sell the Receivables after the termination of
the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the Owner.
SECTION 4.03. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the Owner and the
delivery to the Owner Trustee by the Owner of a certificate certifying that the
Owner reasonably believes that the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON OWNER'S POWER. The Owner shall not direct
the Owner Trustee to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the Basic Documents or would be contrary to
SECTION 2.03 nor shall the Owner Trustee be obligated to follow any such
direction, if given.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT. The Owner Trustee, for the
benefit of the Certificateholder, shall establish and maintain in the name of
the Trust an Eligible Securities Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholder.
The Owner Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Certificateholder. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Securities Account,
the Owner Trustee (or the Seller on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee or an
affiliate thereof) shall within 10 Business Days following notification of such
occurrence (or such longer period, not to exceed 30 calendar days, as to which
each Rating Agency may consent) establish a new Certificate Distribution Account
as an Eligible Securities Account and shall transfer any cash and/or any
investments to such new Certificate Distribution Account.
SECTION 5.02. APPLICATION OF TRUST FUNDS. (a) On each Distribution Date,
the Owner Trustee will distribute to the Certificateholder amounts deposited in
the Certificate Distribution
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Account pursuant to Sections 5.04 and 5.05 of the Sale and Servicing Agreement
on or before such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to the
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.07(a) of the Sale and Servicing Agreement on such
Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to the Owner, such tax shall reduce the
amount otherwise distributable to the Owner in accordance with this Section.
The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Owner sufficient funds for the payment of any tax
that is legally owed or required to be withheld by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to an Owner shall be treated as cash distributed to the
Owner at the time it is withheld by the Trust and remitted to the appropriate
taxing authority. If there is a possibility that withholding tax is payable with
respect to a distribution, the Owner Trustee may in its sole discretion withhold
such amounts in accordance with this clause (c). In the event that the Owner
wishes to apply for a refund of any such withholding tax, the Owner Trustee
shall reasonably cooperate with the Owner in making such claim so long as the
Owner agrees to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
SECTION 5.03. METHOD OF PAYMENT. Subject to SECTION 9.01(c),
distributions required to be made to the Certificateholder on any Distribution
Date shall be made to the Certificateholder either by wire transfer, in
immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if the Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Distribution Date and the Certificate
evidences a denomination of not less than $1,000,000, or, if not, by check
mailed to the Certificateholder at the address of such Holder appearing in the
Certificate Register.
SECTION 5.04. NO SEGREGATION OF MONIES; NO INTEREST. Subject to SECTION
5.01 and 5.02, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05. ACCOUNTING AND REPORT TO THE NOTEHOLDERS, THE OWNER,
THE INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on a fiscal year basis ending
December 31, (or such other period as may be required by applicable law), with
the first year being a short year ending December 31, 1997, and on the accrual
method of accounting or as otherwise may be required by the FASIT Provisions,
(b) deliver to the Owner, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable the Owner to prepare
its federal and
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state income tax returns, and make such elections as may from time to time be
required or appropriate under any applicable state or federal statute or rule
or regulation thereunder so as to maintain the Trust's characterization as
disregarded as an entity separate from its owner for federal income tax
purposes and (c) collect or cause to be collected any withholding tax as
described in and in accordance with SECTION 5.02(c) with respect to
distributions from the Trust. As applicable, the Owner Trustee shall elect
under Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Receivables or shall offset premium
against interest income or original issue discount accruing with respect to
the Receivables.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party,
or any amendment thereto or other agreement, in each case, in such form as
the Seller shall approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator directs
in writing with respect to the Basic Documents.
SECTION 6.02. GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents and to administer the Trust
in the interest of the Owner, subject to the Basic Documents and in accordance
with the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Owner Trustee hereunder or under any Basic Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement.
SECTION 6.03. ACTION UPON INSTRUCTION. (a) Subject to ARTICLE IV, the
Owner may, by written instruction, direct the Owner Trustee in the management of
the Trust. Such direction may be exercised at any time by written instruction
of the Owner pursuant to ARTICLE IV.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
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(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Owner requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts in good faith in accordance with any written instruction of
the Owner received, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic Documents,
as it shall deem to be in the best interest of the Owner, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Owner requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic Documents,
as it shall deem to be in the best interests of the Owner, and shall have no
liability to any Person for such action or inaction.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to SECTION 6.03; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
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SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) in accordance with the
Basic Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to SECTION 6.03.
SECTION 6.06. RESTRICTIONS. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in SECTION
2.03 or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust being treated as a association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes. The Owner Trustee and
the Seller agree that no election to treat the Trust as an association (or
publicly traded partnership) taxable as a corporation for United States Federal
income tax purposes or any relevant state tax purposes shall be made by or on
behalf of the Trust. The Owner shall not direct the Owner Trustee or the Seller
to take action that would violate the provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder
or under any Basic Document under any circumstances, except (i) for its own
willful misconduct or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in SECTION 7.03 expressly made by the Owner
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Administrator or the Owner;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
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(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Seller or for the form, character, genuineness, sufficiency,
value or validity of any of the Owner Trust Estate or for or in respect of
the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Certificate, and the Owner Trustee
shall in no event assume or incur any liability, duty, or obligation to any
Noteholder or to the Owner, other than as expressly provided for herein and
in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee or the Servicer
under any of the Basic Documents or otherwise, and the Owner Trustee shall
have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of the Owner, unless the Owner has offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby.
The right of the Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and the Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
(a) to the Owner promptly upon receipt of a written request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee under the
Basic Documents and (b) to the Indenture Trustee promptly upon written request
therefor, copies of the Purchase Agreement, the Sale and Servicing Agreement,
the Administration Agreement and the Trust Agreement.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Seller, for the benefit of the Owner, that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
15
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan Bank
Delaware acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR THE CERTIFICATE, NOTES OR
RECEIVABLES. The recitals contained herein and in the Certificate (other than
the signature and counter-signature of the Owner Trustee on the Certificate and
its representations and warranties
16
in SECTION 7.03) shall be taken as the statements of the Seller and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, or of the Certificate (other than the signature and countersignature
of the Owner Trustee on the Certificate) or the Notes or of any other Basic
Document or of any Receivable or related documents. The Owner Trustee shall at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection and
priority of any security interest created by any Receivable in any Financed
Equipment or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to the Certificateholder under this Agreement or
the Noteholders under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Equipment; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Seller or the Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of the
Administrator, the Indenture Trustee or the Servicer or any subservicer taken in
the name of the Owner Trustee.
SECTION 7.07. OWNER TRUSTEE MAY OWN THE CERTIFICATE AND NOTES. The Owner
Trustee in its individual or any other capacity may become the Owner or pledgee
of the Certificate or Notes and may deal with the Seller, the Administrator, the
Indenture Trustee and the Servicer in banking transactions with the same rights
as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Seller and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the Seller
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder; provided,
however, that the Owner Trustee's right to enforce such obligation shall be
subject to the provisions of SECTION 11.09.
SECTION 8.02. INDEMNIFICATION. The Seller shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner
17
Trustee or any Indemnified Party in any way relating to or arising out of this
Agreement, the Basic Documents, the Owner Trust Estate, the administration of
the Owner Trust Estate or the action or inaction of the Owner Trustee hereunder,
except only that the Seller shall not be liable for or required to indemnify the
Owner Trustee from and against Expenses arising or resulting from any of the
matters described in the third sentence of SECTION 7.01; provided, however, that
the Owner Trustee's right to enforce such obligation shall be subject to the
provisions of SECTION 12.09. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In any event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Seller, which approval
shall not be unreasonably withheld.
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this ARTICLE VIII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT. (a) This Agreement (other
than Article VIII) and the Trust shall terminate and be of no further force or
effect, upon the final distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Sale and Servicing Agreement and ARTICLE V. Any money or
other property held as part of the Owner Trust Estate following such
distribution shall be distributed to the Seller. The bankruptcy, liquidation,
dissolution, death or incapacity of the Owner shall not (x) operate to terminate
this Agreement or the Trust, or (y) entitle the Owner's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in SECTION 9.01(a), neither the Seller nor the
Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholder shall surrender the Certificate to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to the Certificateholder mailed within five
Business Days of receipt of notice of such termination from the Servicer given
pursuant to SECTION 9.01(c) of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the Certificate
shall be made upon presentation and surrender of the Certificate at the office
of the Paying Agent therein designated and (ii) the amount of any such final
payment. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the
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time such notice is given to Certificateholder. Upon presentation and surrender
of the Certificate, the Paying Agent shall cause to be distributed to
Certificateholder amounts distributable on such Distribution Date pursuant to
SECTION 5.02.
In the event that the Certificateholder shall not surrender the Certificate
for cancellation within six months after the date specified in the above
mentioned written notice, the Owner Trustee shall give a second written notice
to the Certificateholder to surrender the Certificate for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice the Certificate shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the Certificateholder concerning
surrender of the Certificate, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Seller.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent which has) a rating of at least Baa3 by Moody's and
at least BBB- by Standard & Poor's. If such corporation shall publish reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in SECTION
10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Seller and the Administrator; PROVIDED,
HOWEVER, that such resignation and discharge shall only be effective upon the
appointment of a successor Owner Trustee. Upon receiving such notice of
resignation, the Seller shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the
19
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of SECTION 10.01 and shall fail to resign after written
request therefor by the Seller, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Seller may remove the Owner Trustee. If the Seller shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Seller
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and Seller shall
pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to SECTION 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Seller shall provide notice of such resignation
or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to SECTION 10.02 shall execute, acknowledge and deliver to
the Seller and to its predecessor Owner Trustee, with a copy thereof delivered
to the Administrator, an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties, and obligations of its predecessor under this Agreement, with
like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Seller and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to SECTION 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Seller shall mail notice of the successor of such Owner
Trustee to the Certificateholder, the Indenture Trustee, the Noteholders and the
Rating Agencies. If the Seller shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the Seller.
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SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder; PROVIDED
such corporation shall be eligible pursuant to SECTION 10.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; anything herein to the contrary notwithstanding; PROVIDED,
FURTHER that the Owner Trustee shall mail notice of such merger or consolidation
to the Rating Agencies.
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Equipment may at the time be
located, the Seller and the Owner Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title
to the Trust, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Seller and the Owner Trustee may consider necessary or desirable. If the
Seller shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to SECTION 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to SECTION 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties, and obligations (including the holding of title to
the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
21
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Seller and the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
FASIT PROVISIONS
(a) The Owner Trustee shall not permit the creation of any "interests"
(within the meaning of Section 860L of the Code) in the FASIT other than the
Notes and the Certificate unless it first receives an Opinion of Counsel at the
expense of the party seeking the creation of such interests to the effect that
such creation will not cause an Adverse FASIT Event.
(b) Subject to any Internal Revenue Service procedures or FASIT Provisions
so requiring, the Owner Trustee shall sign (or, if permitted by the Code, cause
the Administrator to sign) all of the Tax Returns delivered to it by the FASIT
Administrator and return them to the FASIT Administrator for filing in a timely
manner. The Owner Trustee shall promptly provide the FASIT Administrator with
such information in the possession of the Owner Trustee as the FASIT
Administrator may from time to time request for the purpose of enabling the
FASIT Administrator to prepare Tax Returns.
(c) The Owner Trustee shall assist the Servicer and the FASIT
Administrator, to the extent reasonably requested by the Servicer and the FASIT
Administrator to do so, to take such actions and cause the Trust to take such
actions as they deem necessary or desirable to maintain the status of the Trust
as a FASIT under the FASIT Provisions. The Owner Trustee shall not take or fail
to take any action (whether or not authorized hereunder) as to which the
Servicer or the FASIT Administrator, as applicable, has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse FASIT
Event could occur with respect to such action. In addition, prior to taking any
action with respect to the Trust or its assets, or causing the Trust to take any
action, which is not expressly permitted under the terms of this Agreement,
unless the Owner Trustee shall have received an Opinion of Counsel that such
action will not
22
result in an Adverse FASIT Event, the Owner Trustee will consult with the
Servicer or the FASIT Administrator, as applicable, or its designee, in writing,
with respect to whether such action could cause an Adverse FASIT Event to occur
with respect to the Trust, and the Owner Trustee shall not take any such action
or cause the Trust to take any such action as to which the Servicer or the FASIT
Administrator, as applicable, has advised it in writing that an Adverse FASIT
Event could occur.
(d) Following the Startup Day, the Owner Trustee shall not accept any
contributions of assets to the Trust unless (subject to Section 10.01(f) of the
Sale and Servicing Agreement) the Servicer and the Owner Trustee shall have
received an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Trust will
not cause the Trust to fail to qualify as a FASIT at any time that any Notes or
the Certificate are outstanding or subject the Trust to any tax under the FASIT
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(e) The Owner Trustee shall not (subject to Section 10.01(f) of the Sale
and Servicing Agreement) enter into any arrangement by which the Trust will
receive a fee or other compensation for services or will originate any loan nor
permit the Trust to receive any income from assets other than "permitted assets"
as defined in Section 860L(c) of the Code.
(f) The Owner Trustee shall not sell, dispose of or substitute for any of
the Receivables (except in connection with (i) the default, imminent default or
foreclosure of a Receivable, including but not limited to, the acquisition or
sale of Financed Equipment acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of the Trust, (iii) the termination of the Trust pursuant to Article
IX of this Agreement or (iv) a repurchase of Receivables pursuant to Article IX
or Section 3.02 of the Sale and Servicing Agreement) nor acquire any assets for
the Trust, nor sell or dispose of any investments in the Trust Accounts for gain
nor accept any contributions to the Trust after the Closing Date unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not affect adversely the status of the Trust as a FASIT.
23
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
by the Seller and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholder or for the purpose of enabling the Trust to continue to
qualify as a FASIT and the Notes to continue to qualify as "regular interests"
in the FASIT constituted by the Trust (including, without limitation, compliance
with regulations that have not yet been issued); PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or the Certificateholder or the
tax characterization of the Notes or the Certificate.
This Agreement may also be amended from time to time by the Seller and the
Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; PROVIDED, HOWEVER,
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the Outstanding Amount of
the Notes required to consent to any such amendment, without the consent of the
holders of all the outstanding Notes.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or any other
Basic Document, the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the other Basic Documents and that such
amendment will not cause an Adverse FASIT Event. The Owner
24
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 12.02. NO LEGAL TITLE TO OWNER TRUST ESTATE IN THE OWNER. The
Owner shall not have legal title to any part of the Owner Trust Estate. The
Owner shall be entitled to receive distributions with respect to its ownership
interest therein only in accordance with ARTICLES V and IX. No transfer, by
operation of law or otherwise, of any right, title, and interest of the Owner to
and in its ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 12.03. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Owner, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 12.04. NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Owner Trustee shall be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office; if
to the Seller, addressed to Caterpillar Financial Funding Corporation, Greenview
Plaza, 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx X-0X, Xxx Xxxxx, Xxxxxx 00000; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
(b) Any notice required or permitted to be given to the Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 12.05. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 12.06. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 12.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and its
25
successors and the Owner and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by the Owner shall bind the successors and assigns of the Owner.
SECTION 12.08. COVENANT OF THE SELLER. In the event that (a) the
Certificate Balance shall be reduced by Realized Losses and (b) any litigation
with claims in excess of $1,000,000 to which the Seller is a party which shall
be reasonably likely to result in a material judgment against the Seller that
the Seller will not be able to satisfy shall be commenced by the Owner, during
the period beginning nine months following the commencement of such litigation
and continuing until such litigation is dismissed or otherwise terminated (and,
if such litigation has resulted in a final judgment against the Seller, such
judgment has been satisfied) the Seller shall not pay any dividend to
Caterpillar Financial Services Corporation, or make any distribution on or in
respect of its capital stock to Caterpillar Financial Services Corporation, or
repay the principal amount of any indebtedness of the Seller held by Caterpillar
Financial Services Corporation, unless (i) after giving effect to such payment,
distribution or repayment, the Seller's liquid assets shall not be less than the
amount of actual damages claimed in such litigation or (ii) the Rating Agency
Condition shall have been satisfied with respect to any such payment,
distribution or repayment. The Seller further agrees that prior to the
termination of the Trust it shall not revoke, modify or otherwise amend any
agreements with Caterpillar Financial Services Corporation in effect on the
Closing Date in any manner that would adversely affect the rights of the Seller
to receive from Caterpillar Financial Services Corporation contributions of
capital or payments on demand pursuant to such agreements. The Seller further
covenants and agrees that it will not enter into any transaction or take any
action (other than any transaction or action contemplated by this Agreement or
any of the Basic Documents) if, as a result of such transaction or action, any
rating of either the Notes or the Certificates by any of the Rating Agencies
would be downgraded or withdrawn.
SECTION 12.09. NO PETITION. The Owner Trustee, the Certificateholder, by
accepting the Certificate, and the Indenture Trustee and each Noteholder by
accepting the benefits of this Agreement, hereby covenant and agree that they
will not, prior to the date which is one year and one day after the termination
of the Trust, institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificate, the Notes, this Agreement or any of
the Basic Documents.
SECTION 12.10. NO RECOURSE. The Certificateholder by accepting the
Certificate acknowledges that the Certificate represents a beneficial interest
in the Trust only and does not represent an interest in or obligation of the
Seller, the Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof, and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Certificate or the other Basic Documents.
26
SECTION 12.11. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 12.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.13. [Reserved]
SECTION 12.14. SELLER PAYMENT OBLIGATION. The Seller shall be responsible
for payment of the Administrator's fees under the Administration Agreement (to
the extent not paid pursuant to Section 5.04 of the Sale and Servicing
Agreement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
27
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as Owner Trustee,
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CATERPILLAR FINANCIAL
FUNDING CORPORATION,
as Seller,
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
EXHIBIT A
NUMBER $7,861,558
R-1
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS NOT TRANSFERABLE IN WHOLE OR IN PART
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS SET FORTH
IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
A-1
CATERPILLAR FINANCIAL ASSET TRUST 1997-B
6.35% ASSET BACKED CERTIFICATE
evidencing an undivided interest in the Trust, as defined below, the property of
which includes a pool of retail installment sale contracts secured by new and
used machinery and certain monies due or received thereunder and sold to the
Trust (as defined below) by Caterpillar Financial Funding Corporation.
(This Certificate does not represent an interest in or obligation of Caterpillar
Financial Funding Corporation, Caterpillar Financial Services Corporation,
Caterpillar Inc. or any of their respective affiliates, except to the extent
described below.)
THIS CERTIFIES THAT CATERPILLAR FINANCIAL FUNDING CORPORATION is the
registered Owner of a SEVEN MILLION EIGHT HUNDRED AND SIXTY-ONE THOUSAND FIVE
HUNDRED AND FIFTY-EIGHT DOLLARS ($7,861,558) nonassessable, fully-paid,
undivided interest in Caterpillar Financial Asset Trust 1997-B (the "Trust")
formed by Caterpillar Financial Funding Corporation, a Nevada corporation (the
"Seller").
The Trust was created pursuant to an Amended and Restated Trust Agreement
dated as of November 1, 1997 (the "Trust Agreement"), between the Seller and
Chase Manhattan Bank Delaware, as owner trustee (the "Owner Trustee"), a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement or the Sale and Servicing
Agreement dated as of November 1, 1997 (the "Sale and Servicing Agreement"),
among the Trust, the Seller and Caterpillar Financial Services Corporation, as
servicer (the "Servicer"), as applicable.
This Certificate is the duly authorized Certificate designated as "6.35%
Asset Backed Certificate" (herein called the "Certificate"). Also issued under
the Indenture dated as of November 1, 1997, between the Trust and The First
National Bank of Chicago, as indenture trustee, are Notes designated as "Class
A-1 5.805% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 6.018% Asset
Backed Notes" (the "Class A-2 Notes"), "Class A-3 6.16% Asset Backed Notes" (the
"Class A-3 Notes") and "Class B 6.35% Asset Backed Notes" (the "Class B Notes";
together with the A-1 Notes, the A-2 Notes and the Class A-3 Notes, the
"Notes"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes a pool of retail
installment sale contracts secured by new and used equipment (the
"Receivables"), all monies received on or after November 1, 1997 from payments
on the Receivables, security interests in the equipment financed thereby and
certain other cross-collateralized equipment, certain bank accounts and the
proceeds thereof, proceeds from claims on certain insurance policies and certain
other rights under the Trust Agreement and the Sale and Servicing Agreement, all
right, title, and interest of the Seller in and to the Purchase Agreement dated
as of November 1, 1997 between Caterpillar Financial Services Corporation and
the Seller
A-2
and all proceeds of the foregoing. The Holder of this Certificate
acknowledges and agrees that its rights to receive distributions in respect
of this Certificate are subordinated to the rights of the Noteholders as
described in the Sale and Servicing Agreement and the Indenture.
Under the Trust Agreement, there will be distributed on the 25th day of
each month or, if such day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on December 26, 1997 to the Person in whose
name this Certificate is registered at the close of business on the last
calendar day of the month preceding the month in which such Distribution Date
occurs (the "Record Date") the amount to be distributed to the Certificateholder
on such Distribution Date.
Notwithstanding any prior termination of the Trust Agreement, the
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that it shall not, prior to the date which is one year and one day after the
termination of the Trust, institute against the Seller or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to this Certificate, the Notes, the
Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Owner Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency maintained for the
purpose by the Owner Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
CATERPILLAR FINANCIAL ASSET
TRUST 1997-B,
By: CHASE MANHATTAN BANK
DELAWARE, as Owner Trustee
Dated: By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK, or CHASE MANHATTAN BANK
DELAWARE, as Owner Trustee DELAWARE, as Owner Trustee
By THE CHASE MANHATTAN BANK
Authenticating Agent
By: By:
---------------------------- -------------------------
Authorized Signatory Authorized Signatory
A-4
[REVERSE OF CERTIFICATE]
The Certificate does not represent an obligation of, or an interest in, the
Seller, the Servicer, Caterpillar Inc., the Owner Trustee or any affiliates of
any of them and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein or in the Trust
Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement and the Trust Agreement. The Certificate is limited in
right of payment to certain collections and recoveries respecting the
Receivables, all as more specifically set forth in the Sale and Servicing
Agreement and the Trust Agreement. A copy of each of the Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Seller, and at such other places, if any,
designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholder under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the holders of the
Notes and the Certificateholder each voting as a class evidencing a majority of
the outstanding Notes and the Certificate Balance, respectively. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Holder of the Certificate.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the Owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholder of
all amounts required to be paid to it pursuant to the Trust Agreement and the
Sale and Servicing Agreement and the disposition of all property held as part of
the Trust. The Servicer of the Receivables may at its option purchase the corpus
of the Trust at a price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust will effect early
retirement of the Certificate; PROVIDED, HOWEVER, such right of purchase is
exercisable only on any Distribution Date on which the Pool Balance is 10% or
less of the Initial Pool Balance.
A-5
EXHIBIT B
CERTIFICATE OF TRUST OF
CATERPILLAR FINANCIAL ASSET TRUST 1997-B
THIS Certificate of Trust of CATERPILLAR FINANCIAL ASSET TRUST 1997-B (the
"Trust"), dated November 1, 1997, is being duly executed and filed by Chase
Manhattan Bank Delaware, as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. CODE, Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is CATERPILLAR
FINANCIAL ASSET TRUST 1997-B.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Chase Manhattan Bank Delaware, 0000 Xxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trustee
Administration Department.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as Owner Trustee,
By:
---------------------------
Name:
Title:
B-1
