EXHIBIT 10.1
PURCHASE AGREEMENT
between
CATERPILLAR FINANCIAL SERVICES CORPORATION
Seller
and
CATERPILLAR FINANCIAL FUNDING CORPORATION
Depositor
Dated as of [Date]
TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS...........................................1
SECTION 1.01.DEFINITIONS.....................................................1
SECTION 1.02.OTHER DEFINITIONAL PROVISIONS...................................3
ARTICLE II CONVEYANCE OF RECEIVABLES.....................................4
SECTION 2.01.CONVEYANCE OF RECEIVABLES.......................................4
SECTION 2.02.OWNERSHIP AND CUSTODY OF RECEIVABLES FILES......................5
SECTION 2.03.BOOKS AND RECORDS...............................................5
SECTION 2.04.CUSTODY OF RECEIVABLE FILES.....................................5
SECTION 2.05.CERTIFICATIONS BY THE SERVICER AND THE CUSTODIAN................5
SECTION 2.06.THE CLOSING.....................................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES................................6
SECTION 3.01.REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.....................6
SECTION 3.02.REPRESENTATIONS AND WARRANTIES OF SELLER........................7
ARTICLE IV CONDITIONS...................................................12
SECTION 4.01.CONDITIONS TO THE OBLIGATION OF THE DEPOSITOR..................12
SECTION 4.02.CONDITIONS TO OBLIGATION OF SELLER.............................13
SECTION 4.03.JUNIOR LIENS ON FINANCED EQUIPMENT AND OTHER EQUIPMENT.........13
ARTICLE V COVENANTS OF THE SELLER AND THE DEPOSITOR....................14
SECTION 0.00.XXXXXXXXXX OF RIGHT, TITLE AND INTEREST........................14
SECTION 5.02.OTHER LIENS OR INTERESTS.......................................14
SECTION 5.03.CHIEF EXECUTIVE OFFICE.........................................15
SECTION 5.04.CORPORATE EXISTENCE............................................15
SECTION 5.05.INDEMNIFICATION................................................17
SECTION 5.06.REGULATION AB COMPLIANCE.......................................18
ARTICLE VI MISCELLANEOUS PROVISIONS.....................................18
SECTION 6.01.OBLIGATIONS OF SELLER..........................................18
SECTION 6.02.REPURCHASE EVENTS..............................................18
SECTION 6.03.DEPOSITOR ASSIGNMENT OF REPURCHASED RECEIVABLES................18
SECTION 6.04.ISSUING ENTITY.................................................18
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SECTION 6.05.AMENDMENT......................................................19
SECTION 6.06.WAIVERS........................................................19
SECTION 6.07.NOTICES........................................................19
SECTION 6.08.COSTS AND EXPENSES.............................................19
SECTION 6.09.REPRESENTATIONS OF SELLER AND DEPOSITOR........................19
SECTION 6.10.CONFIDENTIAL INFORMATION.......................................20
SECTION 6.11.HEADINGS AND CROSS-REFERENCES..................................20
SECTION 6.12.GOVERNING LAW..................................................20
SECTION 6.13.COUNTERPARTS...................................................20
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PURCHASE AGREEMENT, dated as of [Date], between CATERPILLAR FINANCIAL
SERVICES CORPORATION, a Delaware corporation, as seller (the "Seller"), and
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as purchaser
(the "Depositor").
WHEREAS in the regular course of its business, the Seller has
originated or purchased certain fixed-rate retail installment sale contracts
and finance lease contracts secured by new and used machinery and equipment;
and
WHEREAS the Seller and the Depositor wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined) are to be sold by
the Seller to the Depositor, which Receivables will be transferred by the
Depositor, pursuant to the Sale and Servicing Agreement (as hereinafter
defined), to Caterpillar Financial Asset Trust 200[_]-[_] (the "Issuing
Entity"), and the Issuing Entity will issue (i) an Asset Backed Certificate
(the "Certificate") pursuant to the Trust Agreement (as hereinafter defined),
which will represent an undivided interest in the Issuing Entity and (ii) the
Notes (as hereinafter defined) pursuant to the Indenture (as hereinafter
defined), which will represent obligations of the Issuing Entity.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions. Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Agreement.
"Administration Agreement" means the Administration Agreement, dated as
of [Date], among the Issuing Entity, the Depositor, the Seller, as
administrator, and [Name of Indenture Trustee], as indenture trustee, as the
same may be amended, modified or supplemented from time to time.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control", when used
with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, by contract
or otherwise; and the terms "controlled by," "controlling" and "under common
control with" have meanings correlative to the foregoing.
"Affiliate Trust Security Interest" has the meaning specified in
Section 4.03(b).
"Agreement" means this Purchase Agreement, as the same may be amended,
modified or supplemented from time to time.
"Assignment" means the document of assignment, a form of which is
attached as Exhibit A.
"Basic Documents" has the meaning specified in the Indenture.
"Certificate" has the meaning specified in the Trust Agreement.
"Closing Date" means [Date].
"Contract" has the meaning specified in the Sale and Servicing
Agreement.
"Custodian" means [Name of Custodian], in its capacity as custodian
under the Custodial Agreement, and its successors in such capacity.
"Custodial Agreement" means the Custodial Agreement, dated as of
[Date], among the Seller, the Depositor, the Issuing Entity and the
Custodian, as the same may be amended, modified or supplemented from time to
time.
"Depositor" means Caterpillar Financial Funding Corporation, a Nevada
corporation, its successors and assigns.
"Indenture" means the Indenture, dated as of [Date], between the
Issuing Entity and [Name of Indenture Trustee], as indenture trustee, as the
same may be amended, modified or supplemented from time to time.
"Issuing Entity" means the Caterpillar Financial Asset Trust
200[_]-[_], a Delaware statutory trust.
"Notes" means the Class A-1 [__]% Asset Backed Notes, the Class A-2
[__]% Asset Backed Notes, the Class A-3 [__]% Asset Backed Notes, the Class
A-4 [__]% Asset Backed Notes and the Class B [__]% Asset Backed Notes issued
pursuant to the Indenture.
"Other Equipment" has the meaning specified in Section 4.03(b).
"Other Obligation" has the meaning specified in Section 4.03(a).
"Other Security Interest" has the meaning specified in Section 4.03(a).
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Prospectus" means the Prospectus (which consists of a base prospectus
dated [Date], and a prospectus supplement dated [Date]) pursuant to which the
Notes were offered.
"Receivable" has the meaning specified in the Sale and Servicing
Agreement.
"Receivable Security Interest" has the meaning specified in
Section 4.03(a).
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"Repurchase Event" has the meaning specified in Section 6.02(a).
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of [Date], among the Issuing Entity, the Depositor (in its capacity
as seller thereunder) and the Seller (in its capacity as Servicer
thereunder), as the same may be amended, modified or supplemented from time
to time.
"Schedule of Receivables" means the list of Receivables annexed as
Schedule A (which may be in the form of microfiche), as the same may be
amended, modified or supplemented from time to time.
"Seller" means Caterpillar Financial Services Corporation, a Delaware
corporation, its successors and assigns.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of [Date], between the Depositor and [Name of Owner Trustee], as owner
trustee, as the same may be amended, modified or supplemented from time to
time.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction, as amended from time to time.
SECTION 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the Sale and Servicing Agreement
or, if not defined therein, in the Indenture, or if not defined
therein, in the Trust Agreement.
(b) All terms defined in this Agreement shall have the meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any document made or
delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such other document, and accounting terms partly
defined in this Agreement or in any such other document to the extent
not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such other
document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Agreement or in any such other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; Section, Schedule and Exhibit references contained in this
Agreement are references to Sections, Schedules and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall
mean "including without limitation"; and the term "or" is not
exclusive. Terms used herein that are defined in the New York UCC and
not otherwise defined herein shall have the meanings set forth in the
New York UCC. Any reference herein to the Administration Agreement,
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the Custodial Agreement, the Indenture, the Sale and Servicing
Agreement or the Trust Agreement means such agreement as in effect on
the Closing Date.
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables. In consideration of the sale on
the Closing Date of $[__] in Contract Balance of Receivables as of the
Cut-off Date, the Depositor shall deliver to or upon the order of the Seller
cash in an amount of $[__]. The Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Depositor, without recourse (subject to
the obligations herein), all right, title and interest in and to the
following, whether now owned or hereafter acquired:
(a) all right, title and interest of the Seller in and to the
Receivables, and all monies (including accrued interest) due thereunder
on or after the Cut-off Date;
(b) the interests of the Seller in the security interests in
the Transaction Equipment granted by Obligors pursuant to the
Receivables and any other interest of the Seller in such Transaction
Equipment, including any Liquidation Proceeds;
(c) the interest and rights of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage, credit
life, liability or disability insurance policies covering Financed
Equipment or Obligors, as the case may be;
(d) the interest of the Seller in any proceeds of repossessed
or returned Transaction Equipment;
(e) the interest of the Seller in any proceeds from recourse
to, or other payments by, Dealers on Receivables; and
(f) the proceeds of any and all of the foregoing.
It is the express intent of the parties hereto that the conveyance of
the Receivables and the other property described above by the Seller to the
Depositor as provided in this Agreement be, and be construed as, a sale of
the Receivables by the Seller to the Depositor. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the
Receivables or the other property described above by the Seller to the
Depositor to secure a debt or other obligation of the Seller. However, in
the event, notwithstanding the intent of the parties, the Receivables or the
other property described above are held to be property of the Seller, or if
for any reason this Agreement is held or deemed to create a security interest
in the Receivables or the other property described above then, (a) this
Agreement shall be a security agreement within the meaning of Article 9 of
the New York UCC; and (b) the Seller hereby grants to the Depositor a
security interest in all of the Seller's right, title, and interest, whether
now owned or hereafter acquired, in and to the property described in clauses
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(a) through (f) above, in order to secure the obligations of the Seller
hereunder. In connection herewith, the Depositor (or its assignee) shall
have all of the rights and remedies of a secured party and creditor under the
UCC.
Any assignment of the interest of the Depositor pursuant to this
Section 2.01 shall also be an assignment of the security interest created
hereby. The Seller and the Depositor shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement creates a security interest in the Receivables, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement.
SECTION 2.02. Ownership and Custody of Receivables Files.
(a) Upon the acceptance by the Seller of the amount set forth
in Section 2.01, the ownership of each Receivable and the contents of
the related Receivables File shall be vested in the Depositor.
(b) In connection with the sale of the Receivables pursuant to
Section 2.01, within 30 days of the Closing Date, the Seller shall
deliver each Receivable File to the Custodian on behalf of the
Depositor.
SECTION 2.03. Books and Records.
The transfer of each Receivable shall be reflected on the Seller's
balance sheets and other financial statements prepared in accordance with
generally accepted accounting principles as a sale of assets by the Seller to
the Depositor. The Seller shall be responsible for maintaining, and shall
maintain, a complete and accurate set of accounts, records and computer files
for each Receivable which shall be clearly marked to reflect the ownership of
each Receivable by the Depositor.
SECTION 2.04. Custody of Receivable Files. Pursuant to the Custodial
Agreement the Depositor has appointed the Custodian, and the Custodian
accepted such appointment, to act as custodian of the Receivables Files.
SECTION 2.05. Certifications by the Servicer and the Custodian.
(a) In accordance with the terms of the Sale and Servicing
Agreement, the Servicer will review the Receivable Files and deliver
the certification required by Section 3.05(a) of the Sale and Servicing
Agreement.
(b) In accordance with the terms of the Custodial Agreement,
the Custodian will review each of the Receivable Files and deliver the
certifications or notices required by to Sections 3.1 and 4.1 of the
Custodial Agreement. It is understood that the scope of the
Custodian's review of the Receivable Files is limited solely to
confirming that it has received each Receivable File. The Seller
agrees to use reasonable efforts to cause to be delivered to the
Custodian any Receivable File that the Custodian determines is missing
and to cause to be remedied a material defect in a document
constituting part of a Receivables File. If, however, within 60 days
after it has delivered the Receivable Files to the Custodian (A) the
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Seller has not caused such missing Receivable File to be delivered or
(B) the Seller has not caused to be remedied any such material defect,
and such defect materially and adversely affects the interest of the
Depositor in the related Receivable, the Seller shall remit the
Purchase Amount with respect to such Receivable to the Depositor. The
sole remedy of the Depositor, the Issuing Entity, the Owner Trustee,
the Indenture Trustee, the Noteholders or the Certificateholder with
respect to a breach shall be to require the Seller to repurchase
Receivables pursuant to this Section, subject to the conditions
contained herein. The Owner Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Receivable pursuant to this Section.
SECTION 2.06. The Closing.
The conveyance of the Receivables and the other property described in
Section 2.01 shall take place on the Closing Date, simultaneously with the
closing of the transactions contemplated by the Sale and Servicing Agreement,
the Indenture, the underwriting agreements related to the Notes and the other
Basic Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Depositor. The Depositor
hereby represents and warrants to the Seller as of the date hereof and as of
the Closing Date:
(a) Organization and Good Standing. The Depositor is duly
organized, validly existing in good standing under the laws of the
State of Nevada, and has the power and authority to own its properties
and to conduct the business in which it is currently engaged, and had
at all relevant times, and has, the power, authority and legal right to
acquire and own the Receivables.
(b) Due Qualification. The Depositor is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) Power and Authority. The Depositor has the power and
authority to execute and deliver this Agreement and to carry out its
terms and the execution, delivery and performance of this Agreement has
been duly authorized by the Depositor by all necessary corporate action.
(d) No Violation. The consummation by the Depositor of the
transactions contemplated by this Agreement and the fulfillment by the
Depositor of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Depositor, or any indenture, agreement
or other instrument to which the Depositor 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
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or other instrument (other than the Basic Documents); nor violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's best knowledge, threatened, before any
court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties which (i) assert the invalidity of this Agreement,
(ii) seek to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seek any determination or
ruling that might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.02. Representations and Warranties of Seller.
(a) The Seller hereby represents and warrants to the Depositor
of the date hereof and as of the Closing Date:
(i) Organization and Good Standing. The Seller is duly organized, validly
existing in good standing under the laws of the State of
Delaware, and has the power and authority to own its properties
and to conduct the business in which it is currently engaged, and
had at all relevant times, and has, the power, authority and
legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(iii) Power and Authority. The Seller has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property sold
and assigned to the Depositor hereby and has duly authorized such
sale and assignment to the Depositor by all necessary corporate
action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Seller by all necessary
corporate action.
(iv) No Violation. The consummation by the Seller of the transactions
contemplated by this Agreement and the fulfillment by the Seller
of the terms hereof neither conflict with, result in any breach
of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or
by which it is bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than the
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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.
(v) No Proceedings. There are no proceedings or investigations pending,
or, to the best of Seller's knowledge, threatened, before any
court, federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Seller or its properties which (i) assert the invalidity of this
Agreement, (ii) seek to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seek any
determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement.
(vi) No Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery by the
Seller of this Agreement or any other Basic Document, the
performance by the Seller of the transactions contemplated by
this Agreement or any other Basic Document and the fulfillment by
the Seller of the terms hereof or thereof, have been obtained or
have been completed and are in full force and effect (other than
approvals, authorizations, consents, orders or other actions
which if not obtained or completed or in full force and effect
would not have a material adverse effect on the Seller or upon
the collectability of any Receivable or upon the ability of the
Seller to perform its obligations under this Agreement).
(b) The Seller makes the following representations and
warranties as to the Receivables on which the Depositor relied in
accepting the Receivables. The parties hereto acknowledge that the
representations and warranties below require the Seller to monitor
conditions that it may not have the ability to monitor. Accordingly,
wherever the Seller makes, or is deemed to make, a representation that
it cannot monitor, such representation shall be made as if prefaced
with the phrase "to the best of the Seller's knowledge"; provided,
however, that the determination as to whether a Repurchase Event has
occurred pursuant to Section 6.02 shall be made without reliance on
whether the Seller actually had knowledge of the accuracy of any of its
representations. Such representations and warranties speak as of the
execution and delivery of this Agreement but shall survive the sale,
transfer and assignment of the Receivables to the Depositor and the
subsequent assignments and transfers of the Receivables pursuant to the
Sale and Servicing Agreement and the Indenture:
(i) Characteristics of Receivables. Each Receivable (A) was originated in
the United States of America by the Seller in the ordinary course
of business or was originated by a Dealer in the ordinary course
of business, in each case in connection with the retail sale by a
Dealer of Financed Equipment in the ordinary course of such
Dealer's business, was fully and properly executed by the parties
thereto, and if originated by such Dealer, was purchased by the
Seller from such Dealer and was validly assigned by such Dealer
to the Seller in accordance with its terms, (B) has created a
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valid, subsisting and enforceable (subject to paragraph (iv)
below) first priority security interest in favor of the Seller in
the Financed Equipment, and if applicable, a valid, subsisting
and enforceable (subject to paragraph (iv) below) security
interest in favor of the Seller in the Cross-Collateralized
Equipment, which security interests are assignable by the Seller
to the Depositor, by the Depositor to the Issuing Entity and by
the Issuing Entity to the Indenture Trustee, (C) contains
customary and enforceable (subject to paragraph (iv) below)
provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of
the benefits of the security and (D) provides for fixed payments
(except as described below) on a periodic basis, yields interest
at a fixed-rate (in the case of Receivables related to an
Installment Sales Contract) and is prepayable without premium or
penalty at any time. The fixed payments provided for are
sufficient to amortize the Amount Financed of such Receivable by
maturity and yield interest at the APR.
(ii) Schedule of Receivables. The information set forth in the Schedule of
Receivables to this Agreement is true and correct in all material
respects as of the opening of business on the Cut-off Date and no
selection procedures believed to be adverse to the Noteholders or
the Certificateholder were utilized in selecting the
Receivables. The computer tape regarding the Receivables made
available to the Depositor and its assigns is true and correct in
all respects.
(iii) Compliance with Law. Each Receivable and the sale or lease of the
Financed Equipment complied at the time it was originated or
made, and at the execution of this Agreement complies in all
material respects, with all requirements of applicable federal,
state and local laws and regulations thereunder, including usury
laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and S and other equal credit opportunity and
disclosure laws.
(iv) Binding Obligations. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof (which as of the Closing Date
is the Seller) in accordance with its terms, subject to
bankruptcy, insolvency and other laws relating to the enforcement
of creditors' rights generally and to general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law). Such enforceability has not
been and is not adversely affected by whether or not the Seller
was or is qualified to do business in the state in which the
Obligor was or is located.
(v) Security Interest in Financed Equipment. Immediately prior to the
sale, assignment and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest
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in the Financed Equipment in favor of the Seller as secured
party. As of the Cut-off Date, such Financed Equipment is
located in the United States of America.
(vi) Receivables in Force. No Receivable has been satisfied, subordinated
or rescinded and no Financed Equipment been released from the
lien granted by the related Receivable in whole or in part. No
Receivable is rescindable on the basis of whether or not the
Seller was or is qualified to do business in the state in which
the Obligor was or is located.
(vii) Prospectus Information. As of the Cut-off Date, each Receivable
conforms and all Receivables in the aggregate conform, in all
material respects, to the description set forth in the
Prospectus, including all statistical data or otherwise.
(viii) No Amendments. No Receivable has been amended such that the
amount of the Obligor's Scheduled Payments has been increased or
decreased, except for increases or decreases resulting from the
inclusion of any premium for forced-placed physical damage
insurance covering the Financed Equipment.
(ix) No Defenses. To the best knowledge of Seller, no right of rescission,
setoff, counterclaim or defense has been asserted or threatened
with respect to any Receivable.
(x) No Liens. No liens or claims have been filed for work, labor or
materials relating to any Financed Equipment that are liens prior
to, or equal or coordinate with, the security interest in the
Financed Equipment granted by the Receivable.
(xi) No Default. No Receivable has a payment that is more than 31 days
overdue as of the Cut-off Date and, except as permitted in this
paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred and
is continuing; and (except for payment defaults continuing for a
period of not more than 31 days) no continuing condition that
with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the
terms of any Receivable has arisen; and the Seller has not waived
and shall not waive any of the foregoing.
(xii) Insurance. Each Obligor is required to obtain and maintain physical
damage insurance and/or liability insurance, as applicable,
covering the Financed Equipment in accordance with the Seller's
normal requirements.
(xiii) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Depositor, and that the
beneficial interest in and title to the Receivables not be part
of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Depositor. Immediately prior
to the transfer and assignment herein contemplated, the Seller
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has good and marketable title to each Receivable, free and clear
of all Liens, encumbrances, security interests and rights of
others and, immediately upon the transfer thereof, the Depositor
shall have good and marketable title to each Receivable, free and
clear of all Liens, tax, governmental or similar liens,
encumbrances, security interests and rights of others; and the
transfer of the Receivables to the Depositor has been or will be
within 10 days after the Closing Date perfected under the UCC.
(xiv) Lawful Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer
and assignment of such Receivable or any Receivable under this
Agreement, the Sale and Servicing Agreement or the Indenture is
unlawful, void or voidable.
(xv) All Actions Taken. All actions necessary to give the Depositor a first
priority perfected ownership interest in the Receivables pursuant
to the UCC have been taken or will be taken within 10 days after
the Closing Date.
(xvi) Leases. Each Lease, relating to any Receivable (A) creates a security
interest rather than a lease for purposes of Section 1-201 of the
UCC, (B) to the best knowledge of Seller, is not a "consumer
lease" within the meaning of Article 2A of the UCC in any
jurisdiction where said Article 2A has been adopted and governs
the construction thereof, (C) to the best knowledge of Seller,
the related Obligor has accepted the related Financed Equipment
leased to it and has not notified Seller of any defects therein,
(D) is by its terms an absolute and unconditional obligation of
the related Obligor, and is non-cancelable, (E) requires the
related Obligor to maintain the related Financed Equipment for
its own account except for any rental, (F) the rights with
respect to such Lease are assignable by the Seller thereunder
without the consent of any Person, (G) is net to the Seller of
any maintenance, taxes, insurance or other expenses and
(H) contains provisions requiring the related Obligor to assume
all risk of loss or malfunction of the related Financed Equipment.
(xvii) Maturity of Receivables. Each Receivable has a final scheduled
payment date due not later than the payment date occurring in
[Date] as of the Cut-off Date and the weighted average remaining
term of the Receivables is [__] months as of the Cut-off Date.
(xviii) Location of Receivable Files. The Receivable Files are kept at
the location listed in Schedule B to the Sale and Servicing
Agreement.
(xix) Outstanding Contract Balance. Each Receivable has an outstanding
Contract Balance of at least $[__] as of the Cut-off Date.
(xx) No Bankruptcies. No Obligor on any Receivable as of the Cut-off Date
was noted in the related Receivable File as having filed for
bankruptcy or as being subject to a bankruptcy proceeding and to
the Seller's knowledge no such proceeding is pending or
threatened against any Obligor.
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(xxi) No Repossessions. No Financed Equipment securing any Receivable is in
repossession status.
(xxii) Chattel Paper. Each Receivable constitutes "tangible chattel
paper" within the meaning of the UCC of the States of New York
and Nevada;
(xxiii) Obligors. None of the Receivables is due from any Person which
does not have a mailing address in the United States of America.
No Receivable is due from the United States of America or any
State or from any agency, department, instrumentality or
political subdivision thereof.
(xxiv) One Original. There is only one Original Contract related to
each Receivable. With respect to each Receivable, the Seller has
a perfected, first priority ownership or security interest in
such Receivable, free and clear of all Liens, encumbrances,
security interests or rights of others.
(xxv) Payment Frequency. As of the Cut-off Date and as shown on the books of
the Seller, Receivables having an aggregate Contract Balance
equal to approximately [__]% of the aggregate Contract Balance of
all Receivables had monthly scheduled payments; and as of the
Cut-off Date and as shown on the books of the Seller, Receivables
having an aggregate Contract Balance equal to approximately [__]%
of the aggregate Contract Balance of all Receivables had
scheduled payments which have monthly scheduled payments other
than certain months specified therein for which payment is
skipped.
(xxvi) Interest Accrual. Each Receivable related to an Installment
Sales Contract is, as of the Closing Date, accruing interest.
(xxvii) Notification of Obligors. With respect to each Dealer
Receivable, the related Obligor has been notified with respect to
the assignment of the related Contract to the Seller.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to the Obligation of the Depositor. The
obligation of the Depositor to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct on the
Closing Date with the same effect as if then made and the Seller shall
have performed all obligations to be performed by it hereunder on or
prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own
expense on or prior to the Closing Date (i) indicate in its computer
files that receivables created in connection with the Receivables have
been sold to the Depositor pursuant to this Agreement and sold by the
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Depositor to the Issuing Entity pursuant to the Sale and Servicing
Agreement and (ii) deliver to the Depositor the Schedule of Receivables
certified by the Chairman, the President, a Vice President, Secretary,
the Treasurer or an Assistant Treasurer of the Seller to be true,
correct and complete.
(c) Documents to be Delivered by Seller at Closing.
(i) Assignment. On the Closing Date, the Seller will execute and deliver
the Assignment. The Assignment shall be substantially in the
form of Exhibit A.
(ii) Other Documents. Such other documents as the Depositor may reasonably
request.
(d) Other Transactions. The transactions contemplated by the
Basic Documents to be consummated on the Closing Date shall be
consummated on such date.
SECTION 4.02. Conditions to Obligation of Seller. The obligation of the
Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Depositor hereunder shall be true and correct on
the Closing Date with the same effect as if then made and the Depositor
shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the
Depositor shall have delivered to the Seller the purchase price
specified in Section 2.01.
SECTION 4.03. Junior Liens on Financed Equipment and Other Equipment.
(a) To the extent that any item of Financed Equipment is
subject to a security interest in favor of the Seller (each, an "Other
Security Interest") to secure an obligation of the related Obligor that
is not part of a Receivable that has been transferred to the Depositor
pursuant to Section 2.01 (each, an "Other Obligation"), then the Seller
agrees that, notwithstanding any other provision of any document,
instrument or agreement to the contrary, and until (i) the related
Receivable has been paid in full or (ii) the security interest in such
item of Financed Equipment that secures the Receivable (the "Receivable
Security Interest") has been discharged or released, (A) the Receivable
Security Interest in the Financed Equipment shall be prior and senior
to the Other Security Interest in the Financed Equipment, and the Other
Security Interest in the Financed Equipment shall be subordinate and
junior to the Receivable Security Interest in the Financed Equipment,
(B) the Seller shall not transfer the Other Obligation to an Affiliate
of the Seller or a trust (other than the Issuing Entity) established by
the Depositor or any of its Affiliates unless the documentation for
such transaction provides that the Receivable Security Interest in the
Financed Equipment shall be prior and senior to the Other Security
Interest in the Financed Equipment, and the Other Security Interest in
the Financed Equipment shall be subordinate and junior to the
Receivable Security Interest in the Financed Equipment, and (C) the
Seller shall not transfer the Other Obligation (other than as described
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in clause (B) of this Section) unless the transferee agrees in writing
that the Receivable Security Interest in the Financed Equipment shall
be prior and senior to the Other Security Interest in the Financed
Equipment, and the Other Security Interest in the Financed Equipment
shall be subordinate and junior to the Receivable Security Interest in
the Financed Equipment.
(b) To the extent that any Receivable is secured by a security
interest in any equipment other than the Financed Equipment (the "Other
Equipment") and such Other Equipment is subject to a security interest
(each, an "Affiliate Trust Security Interest") in favor of the Seller
that has been assigned by the Seller to a trust (other than the Issuing
Entity) established by the Depositor or any of its Affiliates, then the
Seller and the Depositor agree that that the Affiliate Trust Security
Interest in the Other Equipment shall be prior and senior to the
security interest in the Other Equipment that secures the Receivable,
and the security interest in the Other Equipment that secures the
Receivable shall be subordinate and junior to the Affiliate Trust
Security Interest in the Other Equipment.
ARTICLE V
COVENANTS OF THE SELLER AND THE DEPOSITOR
The Seller and the Depositor agree with each other as follows;
provided, however, that to the extent that any provision of this Article
conflicts with any provision of the Sale and Servicing Agreement, the Sale
and Servicing Agreement shall govern:
SECTION 5.01. Protection of Right, Title and Interest.
(a) Further Assurances. The Seller shall take all actions to
preserve and protect the right, title and interest of the Depositor in
and to the Receivables and the other property included in the Owner
Trust Estate. The Depositor shall cooperate fully with the Seller in
connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the purpose of this
paragraph.
(b) Name Change. Within 15 days after the Seller makes any
change in its name or type or jurisdiction of organization, the Seller
shall give the Depositor notice of any such change.
(c) UCC Financing Statements. The Seller shall file and
maintain all appropriate financing statements (in the proper filing
office, in the appropriate jurisdiction), necessary to perfect, and
maintain the perfection of, the ownership interest or security interest
of the Depositor in the Receivables.
SECTION 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Sale and Servicing Agreement and the other
Basic Documents, the Seller shall not sell, pledge, assign or transfer to any
Person, or grant, create, incur, assume or suffer to exist any Lien on, any
interest in, to and under the Receivables, and the Seller shall defend the
right, title and interest of the Depositor in, to and under the Receivables
against all claims of third parties claiming through or under the Seller or
any Dealer; provided, however, that the Seller's obligations under this
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Section shall terminate one year and one day after the termination of the
Issuing Entity pursuant to the Trust Agreement.
SECTION 5.03. Chief Executive Office. During the term of the
Receivables, the Seller will maintain its chief executive office in one of
the States of the United States of America or the District of Columbia.
SECTION 5.04. Corporate Existence.
(a) During the term of this Agreement, the Depositor will keep
in full force and effect its existence, rights and franchises as a
corporation under the laws of Nevada and will obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the Sale and Servicing Agreement
and the transactions contemplated hereby.
(b) The Seller will not take any action or fail to take any
action if such act or omission would cause the Depositor not to observe
the covenants set forth in Section 5.04(c) or to violate the provisions
of the Depositor's articles of incorporation.
(c) The Depositor and the Seller agree that each of their
respective businesses shall be conducted as follows, and neither
Depositor nor the Seller shall take any action or fail to take any
action if such act or omission would cause its respective business not
to be conducted as follows:
(i) The Depositor will maintain both an office at which its business is and
will be conducted and a telephone number separate from the Seller
or any of the Seller's Affiliates.
(ii) At least two of the Depositor's directors are not and will not be
directors, officers or employees of the Seller or any of the
Seller's Affiliates. No employee of the Depositor shall engage
in any servicing functions with respect to the Receivables and,
with respect to the Depositor, shall only engage in corporate
governance and clerical functions. So long as the Depositor
maintains an employee at its office, the Depositor shall at all
times maintain comprehensive liability and workmen's compensation
insurance (as is customary for commercial enterprises) in an
amount, when taking into account any available umbrella policy,
at least equal to $5,000,000.
(iii) The Depositor will maintain corporate records and books and accounts
separate from those of the Seller or any of the Seller's
Affiliates.
(iv) Except as expressly permitted by the Sale and Servicing Agreement with
respect to collections on the Receivables prior to the transfer
of such collections to the Collection Account, the Depositor's
funds will not be commingled with those of the Seller or any of
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the Seller's Affiliates, and the Depositor shall maintain bank
accounts separate from those of the Seller or any of the Seller's
Affiliates.
(v) As long as it is the Servicer, the Seller shall maintain records
permitting a determination on a daily basis of the amount and
location of any of its funds which are commingled as permitted
under clause (iv) above.
(vi) The Board of Directors of the Depositor will take appropriate corporate
action (including holding meetings or acting by unanimous
consent) to authorize all of the Depositor's corporate actions,
and minutes shall be maintained by the Depositor separate and
apart from those of the Seller or any of the Seller's Affiliates.
(vii) The Depositor shall at all times be adequately capitalized to engage in
the transactions contemplated at its formation. Without limiting
the foregoing, the Depositor shall at all times maintain capital
sufficient to pay its rent, salary of any employee, and any
required insurance from the Closing Date until the termination of
the Issuing Entity in accordance with the terms and conditions of
the Trust Agreement.
(viii) The Depositor shall not incur or guarantee any debt other than
under the Sale and Servicing Agreement, nor shall the Depositor
make any loans, pledge its assets for the benefit of any other
entity or hold out its credit as being available to satisfy the
obligations of others, other than as permitted by the Depositor's
articles of incorporation.
(ix) The Depositor shall not engage in any transaction with the Seller or
any of the Seller's Affiliates on terms more favorable than in a
similar transaction involving a third party.
(x) The Depositor shall at all times use its own stationery.
(xi) The Depositor shall always be described as a separate corporation, and
never as a department, division or otherwise of the Seller or any
of the Seller's Affiliates.
(xii) The Depositor shall act solely in its own corporate name and through
its own authorized officers and agents. Neither the Depositor
nor any of Depositor's Affiliates shall be appointed agent of the
Seller, except as expressly provided for by the Sale and
Servicing Agreement and the Administration Agreement.
(xiii) The data and records (including computer records) used by the
Depositor or the Seller in the collection and administration of
the Receivables shall reflect the Depositor's ownership interest
therein.
(xiv) Other than organizational expenses, the Depositor shall be responsible
for the payment of all expenses including the salaries of its
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employees, indebtedness and other obligations incurred by it,
including a fair and reasonable allocation for shared office
space.
(xv) The Depositor shall at all times hold itself out to the public under
the Depositor's own name as a legal entity separate and distinct
from the Seller and any of the Seller's Affiliates and shall
correct any known misunderstanding regarding its separate
identity.
(xvi) None of the Depositor's funds nor any of the funds held by the Seller
on behalf of the Depositor or the holders of the Certificate or
the Notes shall be invested in securities issued by the Seller or
any of the Seller's Affiliates.
(xvii) The Depositor shall at all times maintain a sufficient number of
employees in light of its contemplated business operations.
(xviii) At any time the Notes are outstanding, the Seller shall not
(A) dissolve or liquidate, (B) merge or consolidate with any
other entity, (C) sell its assets substantially in their entirety
to any other entity or (D) amend its articles of incorporation,
in each case unless the Rating Agency Condition is satisfied.
(d) The Depositor and the Seller will each furnish to the other
on or before April 30 of each year (commencing April 30, 20[__]) for so
long as any Certificate or Note remains outstanding an Officer's
Certificate to the effect that all of its respective obligations under
this Section 5.04 have been fulfilled throughout the preceding calendar
year (or the period from the Closing Date until December 31, 20[__], as
applicable), or, if there has been any default in the fulfillment of
any such obligations, specifying each such default known to the signer
thereof and the nature and status thereof.
(e) The Seller will not transfer or assign any interest in the
Depositor except pursuant to an instrument under which the transferee
or assignee of such interest expressly assumes the performance of all
covenants of the Seller to be performed or observed under this
Section 5.04.
(f) The annual consolidated audited financial statements of the
Depositor and the Seller will reflect the results of the issuance of
the Notes and Certificates in accordance with generally accepted
accounting principles and also disclose that the assets of the Seller
are not available to pay creditors of the Depositor or any other
Affiliate of the Seller.
SECTION 5.05. Indemnification. The Seller shall indemnify the Depositor
for any liability as a result of the failure of a Receivable to be originated
in compliance with all requirements of law and for any breach of any of its
representations and warranties contained herein, other than the
representations and warranties made pursuant to Section 3.02(b) for which the
sole remedy shall be provided by Section 6.02; provided, however, that the
Seller shall indemnify the Depositor for any liability arising from a breach
of Section 3.02(b)(ii), (iii) and (xxv). These indemnity obligations shall
be in addition to any other obligation that the Seller may otherwise have.
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SECTION 5.06. Regulation AB Compliance. The Seller shall provide to the
Depositor such information and disclosure as is required to enable the
Depositor to comply with all of its obligations under Regulation AB under the
Securities Act of 1933 and the Securities Exchange Act of 1934.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Receivable.
SECTION 6.02. Repurchase Events.
(a) The Seller hereby covenants and agrees with the Depositor
for the benefit of the Depositor, the Indenture Trustee, the
Noteholders, the Owner Trustee and the Certificateholder that the
occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.02(b) (other than the representation
and warranty contained in Section 3.02(b)(xxv)) in respect of a
Receivable shall constitute an event obligating the Seller to
repurchase such Receivable (each, a "Repurchase Event"), at the
Purchase Amount from the Depositor or from the Issuing Entity.
(b) These repurchase obligations of the Seller shall constitute
the sole remedies to the Depositor, the Indenture Trustee, the
Noteholders, the Owner Trustee and the Certificateholder against the
Seller with respect to any Repurchase Event.
(c) The terms and conditions of the Depositor's rights and
obligations to enforce its right of repurchase pursuant to this
Section 6.02 shall be governed by Section 3.02 of the Sale and
Servicing Agreement.
SECTION 6.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Depositor shall assign, without recourse, representation or
warranty, to the Seller all the Depositor's right, title and interest in and
to such Receivables, and all security and documents relating thereto.
SECTION 6.04. Issuing Entity. The Seller acknowledges and agrees that
(a) the Depositor will, pursuant to the Sale and Servicing Agreement, sell
the Receivables to the Issuing Entity and assign its rights under this
Agreement to the Issuing Entity, (b) the Issuing Entity will, pursuant to the
Indenture, assign such Receivables and such rights to the Indenture Trustee
and (c) the representations and warranties contained in this Agreement and
the rights of the Depositor under this Agreement, including Section 6.02, are
intended to benefit the Issuing Entity, the Certificateholder and the
Noteholders (and may be enforced directly by the Indenture Trustee on behalf
of the Noteholders and by the Owner Trustee on behalf of the Issuing Entity
or the Certificateholder). The Seller hereby consents to all such sales and
assignments.
SECTION 6.05. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written
amendment duly executed and delivered by the Seller and the Depositor,
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without the consent of the Noteholders or the Certificateholder, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Noteholders or Certificateholder; provided that such amendment
will not, as expressed in an Opinion of Counsel, materially and adversely
affect the interest of any Noteholder or the Certificateholder or the federal
tax characterization of the Notes. This Agreement may also be amended by the
Seller and the Depositor, with prior written notice to the Rating Agencies,
with the consent of the Noteholders evidencing a majority in the Outstanding
Principal Amount of the Notes and the Certificateholder for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Noteholders or the Certificateholder; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, any payment by Seller hereunder or
collections of payments on Receivables or distributions that are required to
be made for the benefit of Noteholders or the Certificateholder or (ii)
reduce the aforesaid percentage of the Notes and the Certificate which are
required to consent to any such amendment, without the consent of the holders
of all the outstanding Notes and the holder of the Certificate.
SECTION 6.06. Waivers. No failure or delay on the part of the Depositor
in exercising any power, right or remedy under this Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude and any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.07. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt (a) in the case of the Seller, to Caterpillar
Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, XX
00000-0000, (000) 000-0000; (b) in the case of the Depositor, to Caterpillar
Financial Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000 (702) 735-2514; (c) in the case of [Name and address of Rating
Agency 1]; and (d) in the case of [Name and address of Rating Agency 2]; or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 6.08. Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement, and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Depositor's right, title and
interest in and to the Receivables and the enforcement of any obligation of
the Seller hereunder.
SECTION 6.09. Representations of Seller and Depositor. The respective
agreements, representations, warranties and other statements by the Seller
and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under
Section 2.02.
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SECTION 6.10. Confidential Information. The Depositor agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Depositor's rights
hereunder, under the Receivables, under the Sale and Servicing Agreement or
any other Basic Document or as required by any of the foregoing or by law.
SECTION 6.11. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement.
SECTION 6.12. Governing Law. THIS AGREEMENT AND THE ASSIGNMENTS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS, REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 6.13. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Depositor
By:_____________________________________
Name:
Title:
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Seller
By:_____________________________________
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
Schedule A-1
EXHIBIT A
ASSIGNMENT OF RECEIVABLES
[Date]
For value received, in accordance with the Purchase Agreement,
dated as of [Date] (the "Purchase Agreement"), between the undersigned, as
seller, and Caterpillar Financial Funding Corporation, as purchaser (the
"Depositor"), the undersigned does hereby sell, assign, transfer and
otherwise convey unto the Depositor, without recourse, (i) all right, title
and interest of the undersigned in and to the Receivables, and all monies
(including accrued interest) due thereunder on and after the Cut-off Date;
(ii) the interests of the undersigned in the security interests in the
Transaction Equipment granted by Obligors pursuant to the Receivables and any
other interest of the undersigned in such Transaction Equipment, including
any Liquidation Proceeds; (iii) the interest and rights of the undersigned in
any proceeds with respect to the Receivables from claims on any physical
damage, credit life, liability or disability insurance policies covering
Financed Equipment or Obligors, as the case may be; (iv) the interest of the
undersigned in any proceeds from recourse to, or other payment by, Dealers on
Receivables; and (v) the proceeds of any and all of the foregoing.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of the day and year first set forth above.
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: _________________________________
Name:
Title:
A-1
