Exhibit 10.3
CUSTODIAL AGREEMENT
among
CATERPILLAR FINANCIAL SERVICES CORPORATION
Originator and Servicer
CATERPILLAR FINANCIAL FUNDING CORPORATION
Depositor
CATERPILLAR FINANCIAL ASSET TRUST 200[_]-[_]
Issuer
and
[NAME]
Indenture Trustee and Custodian
Dated as of [Date]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.....................................................2
Section 1.1. Definitions..............................................2
Section 1.2. Interpretation of the Agreement..........................2
ARTICLE II CUSTODIAL ARRANGEMENT.......................................... 2
Section 2.1. Appointment as Custodian.................................3
Section 2.2. Maintenance of Office....................................3
ARTICLE III CUSTODIAL ARRANGEMENT...........................................3
Section 3.1. Transfer of Receivables; Delivery of Documents...........3
Section 3.2. Certification............................................4
Section 3.3. Release of Receivable Files..............................4
Section 3.4. Purchase; Payment In Full................................5
Section 3.5. Other Duties of Custodian................................5
Section 3.6. Access to Records........................................5
Section 3.7. Instructions; Authority to Act...........................6
ARTICLE IV OWNERSHIP AND TRANSFER OF RECEIVABLES...........................6
Section 4.1. Transfer of Receivables..................................6
Section 4.2. Substitution and Purchase of Receivables.................6
Section 4.3. No Service Charge for Transfer of Receivables............7
Section 4.4. Defeasance...............................................7
ARTICLE V CUSTODIAN.......................................................7
Section 5.1. Representations, Warranties and Covenants of Custodian...7
Section 5.2. Charges and Expenses.....................................8
Section 5.3. No Adverse Interests.....................................9
Section 5.4. Inspections..............................................9
Section 5.5. Insurance................................................9
Section 5.6. Limitation of Liability..................................9
Section 5.7. Indemnification.........................................10
Section 5.8. Further Rights of Custodian.............................10
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ARTICLE VI MISCELLANEOUS PROVISIONS.......................................11
Section 6.1. Amendment...............................................11
Section 6.2. Governing Law...........................................11
Section 6.3. Notices.................................................11
Section 6.4. Severability of Provisions..............................11
Section 6.5. No Partnership..........................................11
Section 6.6. Termination of Agreement................................12
Section 6.7. Counterparts............................................12
Section 6.8. Assignment..............................................12
Section 6.9. Headings................................................12
Section 6.10. Advice of Counsel.......................................12
Section 6.11. No Petition.............................................12
Section 6.12. Resignation of Custodian................................12
Section 6.13. Limitation of Liability of Indenture Trustee and
Owner Trustee...........................................13
ARTICLE VII REGULATION AB COMPLIANCE.......................................13
Section 7.1. Additional Representations and Warranties of
the Custodian...........................................13
Section 7.2. Additional Representations and Warranties of
the Custodian...........................................14
Section 7.3. Report on Assesment of Compliance and Attestation.......14
Section 7.4. Indemnification; Remedies...............................15
EXHIBIT A CUSTODIAN CERTIFICATION.......................................A-1
EXHIBIT B REQUEST FOR RELEASE OF DOCUMENTS..............................B-1
EXHIBIT C TRANSFER CERTIFICATE..........................................C-1
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FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT is made as of [Date] (as amended,
modified or supplemented from time to time, this "Agreement"), by and among
CATERPILLAR FINANCIAL SERVICES CORPORATION, as originator and as servicer
(the "Originator" and the "Servicer", respectively), CATERPILLAR FINANCIAL
FUNDING CORPORATION, as depositor (the "Depositor"), CATERPILLAR FINANCIAL
ASSET TRUST 200[_]-[__] (the "Issuing Entity"), [NAME], as trustee (the
"Indenture Trustee"), and [NAME], as custodian (the "Custodian").
RECITALS
WHEREAS, before the Closing Date the Originator is the owner of
the Receivables;
WHEREAS, pursuant to the Purchase Agreement, the Originator will
sell the Receivables to the Depositor;
WHEREAS, pursuant to the Sale and Servicing Agreement, the
Depositor will sell the Receivables acquired pursuant to the Purchase
Agreement to the Issuing Entity;
WHEREAS, pursuant to the Indenture, the Issuing Entity will Grant
to the Indenture Trustee, as trustee all of the Issuing Entity's right, title
and interest in, to and under the Receivables and the other assets of the
Issuing Entity;
WHEREAS, during such time as the Originator, the Depositor, the
Issuing Entity or the Indenture Trustee owns or has an interest in the
Receivables, such Person or Persons shall be referred to herein as the
"Receivables Holder," and the Custodian shall hold all Receivables for the
benefit of the Originator, the Depositor, the Issuing Entity and the
Indenture Trustee during such time as such Person is a Receivables Holder;
WHEREAS, in connection with the foregoing, the parties hereto
desire to provide for the custody and management of the Receivables
transferred pursuant to the Purchase Agreement, the Sale and Servicing
Agreement and the Indenture (each, a "Transfer");
WHEREAS, the Custodian is a financial institution regulated by
the Comptroller of the Currency of the United States;
WHEREAS, the Originator, the Depositor, the Issuing Entity and
the Indenture Trustee, during such time as each such Person is a Receivables
Holder, desire to have the Custodian (i) hold the Receivables as custodian
for each such party, (ii) take possession of the Contracts and the Receivable
Files related to the Receivables, along with certain other documents
specified in this Agreement, as the custodian for, and bailee of, such
Receivables Holder in accordance with the terms and conditions of this
Agreement, and (iii) retain possession of the Contracts and Receivable Files
and such other documents as custodian for and bailee of the Indenture
Trustee; and the Custodian is willing and able to perform the duties and
obligations of a custodian and bailee as set forth herein; and
WHEREAS, the Servicer will act as servicer of the Receivables
pursuant to the Sale and Servicing Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Originator, the Servicer, the
Depositor, the Issuing Entity, the Indenture Trustee and the Custodian hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Certain capitalized terms used in this
Agreement and not otherwise defined herein shall have the respective meanings
assigned them in the Sale and Servicing Agreement, dated as of [Date] (as
amended, modified or supplemented from time to time, the "Sale and Servicing
Agreement"), among the Issuing Entity, the Depositor and the Servicer or in
the Indenture, dated as of [Date] (as amended, modified or supplemented from
time to time, the "Indenture"), between the Issuing Entity and the Indenture
Trustee. All references in this Agreement to Articles, Sections, Subsections
and Exhibits are to the same contained in or attached to this Agreement
unless otherwise specified. All terms defined in this Agreement shall have
the defined meanings when used in any certificate, notice or other document
made or delivered pursuant hereto unless otherwise defined therein. 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. 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; the term "including" shall mean
"including without limitation"; and the term "or" is not exclusive. 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.
Section 1.2. Interpretation of the Agreement. In interpreting any
mistake or ambiguity contained herein, the parties hereto agree to resolve
any such mistakes or ambiguities in favor of the Indenture Trustee.
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.1. Appointment as Custodian. Subject to the terms and
conditions hereof, the Depositor, the Issuing Entity and the Indenture
Trustee, as their interests may appear, hereby appoint [Name of Custodian],
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and [Name of Custodian] hereby accepts such appointment, as Custodian to
maintain custody of the Receivables, the Contracts and the Receivable Files
during such time as each such Person is a Receivables Holder.
Section 2.2. Maintenance of Office. The Custodian agrees to maintain
each Receivable File identified in Section 3.03 of the Sale and Servicing
Agreement and Section 2.04 of the Purchase Agreement at its office located at
[address of Custodian], or at such of its other offices in [__] as Custodian
shall designate from time to time after giving the Originator, the Depositor,
the Issuing Entity, each of the Rating Agencies and the Indenture Trustee
prior written notice, which office shall be maintained separate from the
offices of the Originator, the Depositor and the Servicer and shall be at all
times under the exclusive dominion of the Custodian. None of the Custodian's
employees shall be employees of the Originator, the Depositor, the Servicer
or any of the Servicer's Affiliates.
ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.1. Transfer of Receivables; Delivery of Documents. Within 30
days of the Closing Date, the Originator shall deliver, or cause to be
delivered, to the Custodian, the Receivable Files, including the Original
Contract evidencing each Receivable.
On the date on which the Originator delivers the Receivable Files
to the Custodian (the "Delivery Date"), the Originator shall deliver to the
Custodian a transfer certificate in form of Exhibit C (a "Transfer
Certificate"), acknowledging the Transfer of the Receivables from the
Originator to the Depositor pursuant to the Purchase Agreement. Upon its
receipt of such Transfer Certificate, the Custodian shall acknowledge such
Transfer Certificate (as provided thereon) and deliver to the Depositor a
Custodian Certification (as defined in Section 3.2) (the "Depositor's
Custodian Certification") certifying that it is holding the Receivable Files
delivered to it by the Originator on behalf of the Depositor.
Upon receipt of the Depositor's Custodian Certification, the
Depositor shall deliver to the Custodian a Transfer Certificate acknowledging
the Transfer of the Receivables from the Depositor to the Issuing Entity
pursuant to the Sale and Servicing Agreement. Upon its receipt of such
Transfer Certificate, the Custodian shall acknowledge such Transfer
Certificate as provided thereon and deliver to the Issuing Entity a Custodian
Certification (the "Issuing Entity's Custodian Certification") certifying
that it is holding the Receivable Files delivered to it by the Originator on
behalf of the Issuing Entity.
Upon receipt of the Issuing Entity's Custodian Certification, the
Issuing Entity shall deliver to the Custodian a Transfer Certificate
acknowledging the Transfer of the Receivables from the Issuing Entity to the
Indenture Trustee pursuant to the Indenture. Upon its receipt of such
Transfer Certificate, the Custodian shall acknowledge such Transfer
Certificate as provided thereon and deliver to the Indenture Trustee a
Custodian Certification (the "Trustee's Custodian Certification") certifying
that it is holding the Receivable Files delivered to it by the Originator on
behalf of the Indenture Trustee.
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Custodian hereby acknowledges receipt of the Purchase Agreement,
the Sale and Servicing Agreement and the Indenture. Custodian further
acknowledges that, on the Delivery Date and pursuant to this Agreement, the
Purchase Agreement, the Sale and Servicing Agreement and the Indenture,
Custodian will be given possession of the Receivable Files relating to the
Receivables constituting a portion of the Collateral, each of which
Receivables will be described specifically on Schedule A to each of the
Purchase Agreement and the Sale and Servicing Agreement, a copy of which will
be delivered to Custodian simultaneously with the delivery of the Receivable
Files relating thereto. On and after the Delivery Date and the completion of
the Transfers described above, and so long as this Agreement shall remain in
effect, Custodian shall hold the Receivable Files now and thereafter, from
time to time, in its sole custody and control as custodian for and bailee of
the Indenture Trustee, as trustee, unless and until released from the lien of
the Indenture and otherwise in accordance with the Sale and Servicing
Agreement, in which event, Custodian shall hold the Receivables and the
Receivable Files as trustee and bailee for the benefit of the applicable
Receivables Holder.
Section 3.2. Certification. Custodian shall hold all documents in each
Receivable File on behalf of the Indenture Trustee pursuant to this
Agreement. Upon consummation of a Transfer in accordance with terms hereof,
Custodian shall, with respect to the Receivables transferred to a Receivables
Holder in connection with a Transfer, number, execute and deliver to the
applicable Receivables Holder (with a copy to the Servicer) one or more
certifications (each, a "Custodian Certification") in the form attached as
Exhibit A. Upon issuance of a Custodian Certification with respect to any
Transfer, the Custodian Certification relating to such Receivable previously
delivered shall be deemed and marked cancelled with respect to such
Receivable.
Section 3.3. Release of Receivable Files. From time to time and as
provided in the Sale and Servicing Agreement, Custodian is hereby authorized,
upon written request of Servicer (with the approval of the Indenture Trustee,
which approval shall not be unreasonably withheld) in the form annexed as
Exhibit B, to release to the Servicer the Receivable File related to any
Receivable or the specific documents identified in such request to the
Servicer. All documents so released to the Servicer shall be held by it in
trust for the benefit of the Indenture Trustee. Servicer shall return the
Receivable File, or such other documents which have been released to
Servicer, to Custodian when Servicer's need therefor in connection with a
foreclosure, modification, termination or repossession no longer exists,
unless the Receivable shall be satisfied in full or liquidated, in which
case, upon receipt of a certification to such effect from Servicer to
Custodian in the form annexed as Exhibit B, the related Receivable File shall
be released by Custodian to Servicer, and Custodian shall thereupon reflect
any such liquidation on the related Receivable. Pursuant to Section 4.07 of
the Sale and Servicing Agreement, (i) the Servicer shall return a Receivable
File released to it within five Business Days of such release and (ii) if
such Receivable File has not been returned to the Custodian within such five
Business Day period, the Servicer shall repurchase the related Receivable.
Notwithstanding anything herein or in any other Basic Document to
the contrary, (i) the Servicer shall return any Receivable File released to
it in connection with a modification or extension of a Receivable to the
Custodian on the same day such file is released and (ii) the Custodian shall
not release a Receivable File to the Servicer in connection with a
modification or extension of a Receivable if, after giving effect to the
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release of such Receivable File, the aggregate Principal Balance of all
Receivables having released Receivable Files in connection with modifications
and extensions exceeds $[_________].
Section 3.4. Purchase; Payment In Full. Upon the purchase of any
Receivable pursuant to Section 3.02, 3.05 or 4.07 of the Sale and Servicing
Agreement or Section 6.02 of the Purchase Agreement, or upon the payment in
full of any Receivable, which shall be evidenced by Custodian's receipt of
the request for release in the form annexed hereto as Exhibit B, Custodian
shall promptly release the related Receivable File to Servicer and the
security interest in such Receivable and related Receivable File granted by
the Issuing Entity to the Indenture Trustee pursuant to the Indenture shall
terminate without any further action by the Custodian, the Originator, the
Depositor or the Indenture Trustee.
Section 3.5. Other Duties of Custodian. The Custodian shall have and
perform the other following powers and duties:
(a) Safekeeping. To segregate the Receivables and Receivable Files
from all other receivables, leases and installment sale contracts and
similar records in its possession, to identify the Receivable Files as
being held and to hold the Receivable Files for and on behalf of the
Receivables Holders (which, on and after the Delivery Date, shall be
the Indenture Trustee), to maintain accurate records pertaining to each
Contract and Receivable in the Receivable Files, to provide monthly a
list of all Receivable Files held by it, together with a current
exception report, and to provide such information as is necessary to
enable the Servicer to deliver the reports and notifications required
by Section 4.09 of the Sale and Servicing Agreement. Custodian will
promptly report to the Indenture Trustee any failure on its part to
hold the Receivable Files as herein provided and promptly take
appropriate action to remedy any such failure.
(b) Administration; Reports. In general, to attend to all
non-discretionary details in connection with maintaining custody of the
Receivable Files on behalf of the Receivables Holders as may be
expressly provided herein or as may be required or customary for a
custodian or bailee. In addition, Custodian shall assist the Indenture
Trustee and the Servicer (at Servicer's cost) generally in the
preparation of reports to holders or to regulatory bodies to the extent
necessitated by Custodian's custody of the Receivable Files.
Section 3.6. Access to Records. Custodian shall permit the Indenture
Trustee and its duly authorized agents, attorneys or auditors to inspect the
Receivable Files and the books and records maintained by the Custodian
pursuant hereto at such reasonable times as they may reasonably request,
subject only to compliance with the terms of the Sale and Servicing Agreement.
Section 3.7. Instructions; Authority to Act. The Custodian shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Responsible
Officer of the Indenture Trustee and may conclusively rely on such
instructions. In addition, the Custodian may conclusively rely upon any
release request delivered to it in the form attached as Exhibit B duly
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executed by an authorized officer of the Servicer as set forth on Annex 1 to
Exhibit B and, if required by the terms thereof, by the Indenture Trustee.
ARTICLE IV
OWNERSHIP AND TRANSFER OF RECEIVABLES
Section 4.1. Transfer of Receivables. The delivery of Receivables in
connection with any Transfer shall occur in the following manner:
(i) Upon receipt of a Transfer Certificate, Custodian shall deliver a
Custodian Certification certifying that it is holding the
Receivable Files delivered to it on behalf of the transferee
referred to in such Transfer Certificate;
(ii) Custodian shall within 15 days of its receipt of the delivery of the
Receivable Files:
(a) determine whether each Receivable File listed on the Schedule of
Receivables has been delivered to Custodian, and whether
Custodian is able to deliver a Custodian Certification
certifying that it is in possession of each Receivable File;
(b) promptly advise the applicable Receivables Holder, the Indenture
Trustee, the Originator, the Servicer, the Depositor and
each of the Rating Agencies by telephone or by facsimile
transmission if it determines that any Receivable File
referred to in clause (a) above has not been so delivered
and take no further action under this Section 4.1 until it
determines that such Receivable File has been so delivered;
and
(c) upon determining that such Receivable File has been so delivered,
Custodian shall issue and deliver to applicable Receivables
Holder a Custodian Certification certifying that it is in
possession of each Receivable File.
Section 4.2. Substitution and Purchase of Receivables. The purchase of
Receivables pursuant to Section 6.02 of the Purchase Agreement and
Section 3.02, Section 3.05(b) or Section 4.07 of the Sale and Servicing
Agreement shall occur in the following manner:
(i) On or before the date of such purchase, the Servicer shall send the
Indenture Trustee notice, with a copy to Custodian, indicating
the Receivables to be purchased and the aggregate purchase prices
to be paid on such date.
(ii) Upon receiving written confirmation in the form annexed as Exhibit B,
from the Depositor and the Issuing Entity that they have received
the applicable Purchase Amount, Custodian shall return to the
applicable party (as identified to the Custodian by the Indenture
Trustee) Receivable Files related to the Receivables purchased on
such date.
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Section 4.3. No Service Charge for Transfer of Receivables. No service
charge shall be made for any transfer of Receivables, but Custodian may
require payment from the relevant transferor (other than the Indenture
Trustee) of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer of Receivables.
Section 4.4. Defeasance. When a Receivable is purchased by the
Servicer, the Depositor or the Originator pursuant to the terms of the
Purchase Agreement and the Sale and Servicing Agreement, the applicable
Receivables Holder's interest in such Receivable and all Collateral with
respect to such Receivable shall terminate, such Receivable and related
Collateral shall be conveyed to the Servicer, the Depositor or the
Originator, as applicable, and the Receivables Holder's rights, title and
interest therein shall cease, and the Indenture Trustee shall execute such
instruments acknowledging termination and discharge of such pledge and
security interest as are required by applicable law.
ARTICLE V
CUSTODIAN
Section 5.1. Representations, Warranties and Covenants of Custodian.
Custodian hereby represents and warrants to, and covenants with, the
Originator, the Depositor, the Servicer, the Issuing Entity and the Indenture
Trustee, that as of the date of each Custodian Certification:
(i) Custodian is duly organized, validly existing and in good standing
under the laws of the United States;
(ii) Custodian has the full power and authority to hold each Receivable, to
hold title to the Receivables as custodian on behalf of the
Receivables Holders, and to execute, deliver and perform, and to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered
this Agreement, and this Agreement constitutes a legal, valid and
binding obligation of Custodian, enforceable against it in
accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by
the availability of equitable remedies;
(iii) Neither the execution and delivery of this Agreement, the delivery of
Receivables to Custodian, the issuance of the Custodian
Certifications, the consummation of the transactions contemplated
hereby or thereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, conditions or provisions
of Custodian's charter or bylaws or any agreement or instrument
to which Custodian is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of
the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which Custodian or its
property is subject;
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(iv) Custodian does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained
in this Agreement;
(v) To Custodian's knowledge after due inquiry, there is no litigation
pending or threatened, which if determined adversely to
Custodian, would adversely affect the execution, delivery or
enforceability of this Agreement, or any of the duties or
obligations of Custodian hereunder, or which would have a
material adverse effect on the financial condition of Custodian;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by Custodian of or compliance by
Custodian with this Agreement or the consummation of the
transactions contemplated hereby;
(vii) Upon written request of the Indenture Trustee, Custodian shall take
such steps as requested by the Indenture Trustee to protect or
maintain any interest in any Receivable; and
(viii) The Custodian has not been notified by any party other than the
Originator, the Depositor, the Issuing Entity and the Indenture
Trustee that any such third party claims an interest in the
Receivables or the Receivable Files nor is any such party
requesting the Custodian to act as a bailee with respect to the
Receivables or the Receivable Files.
Custodian makes no representations or warranties as to the
validity, legality, sufficiency, enforceability, perfection, genuineness or
prior recorded status of any of the documents contained in each Receivable
File or the collectability, insurability, effectiveness or suitability of any
Receivable.
Section 5.2. Charges and Expenses. The Depositor will pay all fees of
Custodian in connection with the performance of its duties hereunder in
accordance with written agreements to be entered into from time to time
between the parties hereto and Custodian, including fees and expenses of
counsel incurred by Custodian in the performance of its duties hereunder;
provided, however, that (i) Custodian shall in no event acquire any lien upon
any Receivable deposited under this Agreement or the Purchase Agreement or
the Sale and Servicing Agreement, or any claim against any Receivables Holder
by reason of the failure of the Depositor to pay any of such charges or
expenses and (ii) in the event the Depositor fails to pay the fees and
expenses of Custodian as set forth in such written agreements, Custodian
shall have no obligation to take actions or incur costs in connection with
this Agreement unless the Depositor or another Person has made adequate
provision for payment of Custodian's fees and expenses. The Depositor shall
indemnify the Custodian against payment of any documentary stamp taxes,
intangible taxes and other similar taxes, penalties and interest incurred in
connection with the Receivables and the transactions contemplated hereby.
Section 5.3. No Adverse Interests. Custodian covenants and warrants to
the Originator, the Depositor, the Servicer, the Issuing Entity and the
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Indenture Trustee, that as of the date of each Custodian Certification:
(i) it holds no adverse interest, by way of security or otherwise, in any
Receivable; and (ii) the execution of this Agreement and the creation of the
custodial relationship hereunder does not create any interest, by way of
security or otherwise, of Custodian in or to any Receivable, other than
Custodian's rights as custodian hereunder.
Section 5.4. Inspections. Upon reasonable prior written notice to
Custodian, the Servicer, the Depositor, the Indenture Trustee, the Issuing
Entity and such Person's agents, accountants, attorneys and auditors will be
permitted during normal business hours to examine Custodian's documents,
records and other papers in possession of or under the control of Custodian
relating to the Receivables.
Section 5.5. Insurance. Custodian shall, at its own expense, maintain
at all times during the existence of this Agreement and keep in full force
and effect, (1) fidelity insurance, (2) theft of documents insurance, and
(3) forgery insurance subject to deductibles, all as is customary for amounts
and with insurance companies reasonably acceptable to the Servicer and the
Indenture Trustee. A certificate of the respective insurer as to each such
policy or a blanket policy for such coverage shall be furnished to the
Servicer or the Indenture Trustee, upon request, containing the insurer's
statement or endorsement that such insurance shall not terminate prior to
receipt by such party, by registered mail, of 10 days advance notice thereof.
Section 5.6. Limitation of Liability. Custodian assumes no obligation,
and shall be subject to no liability, under this Agreement, except for its
negligence or willful misconduct in the performance of the obligations and
duties as are specifically set forth herein. Custodian shall not be liable
for any action or non-action by it in reliance on advice of counsel believed
by it in good faith to be competent to give such advice. Custodian may rely
and shall be protected in acting upon any written notice, order, request,
direction or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties. Except with respect to
the willful misconduct of the Custodian, neither the Custodian nor its
directors, officers and agents shall be held liable for any indirect or
consequential damages resulting from any action taken or omitted to be taken
by it or them under or in connection with this Agreement, even if advised of
the possibility of such damages. The provisions of this Section 5.6 shall
survive the termination of this Agreement.
Section 5.7. Indemnification. Servicer agrees to indemnify Custodian
against, and to hold it harmless from, any liabilities, and any related
out-of-pocket expenses, which it may incur in connection with this Agreement,
the Sale and Servicing Agreement, the Purchase Agreement or the Custodian
Certifications, other than any liabilities and expenses arising out of
Custodian's negligence or willful misconduct. The Custodian agrees to
indemnify, defend and hold harmless the Indenture Trustee against any
liability to Noteholders or Certificateholder arising out of the negligence
or willful misconduct of the Custodian (a) in the preparation or execution of
any Custodian Certification or (b) resulting in the loss of Receivable Files
in the custody of the Custodian. This indemnity shall include
indemnification as to reasonable attorneys' fees and costs, whether or not
suit be brought, and including such fees and costs on appeal. The Indenture
Trustee shall give prompt written notice to the Custodian of any claim for
which indemnity is or may be sought and shall afford to the Custodian the
opportunity to defend such claim.
9
Section 5.8. Further Rights of Custodian.
(a) If the Custodian is at any time uncertain of its obligations
hereunder, the Custodian, upon prior written notice to the Indenture
Trustee, the Issuing Entity, the Originator, the Depositor and the
Servicer, may refrain from taking any action with respect to such
matter until such uncertainty is removed. If conflicting demands are
made on the Custodian with respect to any matter, the Indenture
Trustee's demand shall control, except during the period prior to the
issuance of the Trustee's Custodian Certification pursuant to
Section 3.1 hereof, when the applicable Receivables Holder's demand
shall control and the Custodian shall have the right to rely on such
controlling demand. The Custodian shall have the right in any such
case to interplead any or all of the documents contained in the
Receivable Files in a court of competent jurisdiction and, upon
delivery thereof, shall have no further obligations thereunder with
respect to such documents.
(b) The obligations of the Custodian shall be determined solely by
the express provisions of this Agreement. No representation, warranty,
covenant or obligation of the Custodian shall be implied with respect
to this Agreement or the Custodian's service hereunder. Without
limiting the generality of the foregoing statement, except as
specifically required herein, the Custodian shall be under no
obligation to inspect, review or examine the Receivable Files to
determine that the contents thereof are complete, genuine, enforceable
or appropriate for the represented purpose or that they have been
actually recorded or filed in required offices or that they are other
than what they purport to be on their face.
(c) No provision of this Agreement shall require the Custodian to
spend or risk its own funds or otherwise incur financial liability in
performance of its duties under this Agreement unless, pursuant to
Section 5.2 hereof, adequate provision has been made for the
reimbursement of the Custodian's expenses hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Amendment. This Agreement may be amended from time to time
by Custodian, the Originator, the Depositor, the Servicer, the Issuing Entity
and the Indenture Trustee by written agreement signed by such parties and
upon satisfaction of the Rating Agency Condition.
Section 6.2. Governing Law. THIS AGREEMENT 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 SECTION 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS OF LAW), AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
10
Section 6.3. Notices. All demands, notices and communication hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by overnight mail, certified mail or registered mail,
postage prepaid, to (i) in the case of the Servicer and the Originator,
Caterpillar Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000, (ii) in the case of the Depositor, Caterpillar
Financial Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000, (iii) in the case of the Issuing Entity, c/o [Name of Owner
Trustee], as Owner Trustee, c/o [Address], with a copy to the Administrator,
Caterpillar Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000, (iv) in the case of the Indenture Trustee, [Name of
Indenture Trustee], [Address], (v) in the case of the Custodian, [Name of
Custodian], [Address], and (vi) in the case of the Rating Agencies, at their
respective addresses set forth in the Sale and Servicing Agreement, and, in
each such case, at such other addresses as may hereafter be furnished to each
party hereto in writing.
Section 6.4. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other covenants, agreements, provisions or terms of
this Agreement.
Section 6.5. No Partnership. Nothing herein contained shall be deemed
or construed to create a co-partnership or joint venture between Custodian
and the other parties hereto.
Section 6.6. Termination of Agreement. This Agreement shall be
terminated upon termination of the Sale and Servicing Agreement or at the
option of Indenture Trustee on 30 days written notice to Custodian, the
Servicer, the Depositor, the Issuing Entity and the Originator. Concurrently
with, or as soon as practicable after, the termination of this Agreement,
Custodian shall redeliver the Receivable Files to the Indenture Trustee at
such place as the Indenture Trustee may reasonably designate and until such
redelivery, Custodian shall hold such Receivable Files in its sole custody
and control as custodian for and bailee of the Indenture Trustee. In
connection with the administration of this Agreement, Custodian and the
Indenture Trustee may agree from time to time upon the interpretation of the
provisions of this Agreement, as such interpretation may in their opinion be
consistent with the general tenor and purposes of this Agreement, any such
interpretation to be signed and annexed hereto.
Section 6.7. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
Section 6.8. Assignment. No party hereto shall sell, pledge, assign or
otherwise transfer this Agreement without the prior written consent of the
other parties hereto and satisfaction of the Rating Agency Condition.
Section 6.9. Headings. Section headings are for reference purposes only
and shall not be construed as a part of this Agreement.
11
Section 6.10. Advice of Counsel. Custodian shall be entitled to rely and
act upon advice of counsel with respect to its performance hereunder as
Custodian and shall be without liability for any action reasonably taken
pursuant to such advice, provided that such action is not in violation of
application federal or state law. This paragraph shall not negate
Custodian's obligations under Section 5.7.
Section 6.11. No Petition. Custodian, by entering into this Agreement,
hereby covenants and agrees that it will not at any time (whether or not this
Agreement has been terminated) institute against the Depositor or the Issuing
Entity, or join in any institution against the Depositor or the Issuing
Entity 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 other
Basic Documents.
Section 6.12. Resignation of Custodian.
(a) The Custodian may at any time resign and terminate its
obligations under this Agreement upon at least 90 days' prior written
notice to the Servicer and the Indenture Trustee. The Custodian may be
removed at any time at the written request of the Indenture Trustee.
In the event of such resignation or removal, the Indenture Trustee
shall appoint a successor custodian acceptable to the Servicer, which
appointment must satisfy the Rating Agency Condition. If the Indenture
Trustee fails to appoint a successor custodian within 30 days, the
Servicer shall appoint a successor custodian. In no event shall the
resignation of the Custodian be effective until a successor custodian
is duly appointed hereunder. One original counterpart of such
instrument of appointment shall be delivered to each of the Servicer,
the Custodian and the successor custodian. The Servicer shall notify
the Rating Agencies of any such resignation or removal and the
appointment of a successor custodian.
(b) In the event of any resignation, the Custodian shall promptly
transfer to the successor custodian (or to the Indenture Trustee if no
successor custodian has been appointed) all of the Receivables
(including the Receivable Files) in its possession under this Agreement
and take such other action as may be requested by the Indenture Trustee
to effect the transfer of the Custodian's Receivable Files to the
successor custodian, which shall provide a written receipt for all such
transferred documents and instruments. On completion of such transfer,
the Custodian shall be relieved of all further responsibilities and
obligations hereunder.
Section 6.13. Limitation of Liability of Indenture Trustee and Owner
Trustee.
(a) Notwithstanding anything contained herein to the contrary, in no
event shall [NAME] in its individual capacity have any liability for
the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Issuer.
12
(b) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by [Name], not in its individual
capacity but solely as Owner Trustee, and in no event shall [Name] have
any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the
Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and
provisions of Article VI, VII and VIII of the Trust Agreement.
ARTICLE VII
REGULATION AB COMPLIANCE
Section 7.1. Additional Representations and Warranties of the Custodian.
(a) The Custodian hereby represents and warrants that the information set
forth under the caption "The Receivables Pool β Custodial Arrangements"
(the "Custodian Disclosure") in the Prospectus Supplement dated
[__________] relating to the Notes does not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(b) The Custodian shall be deemed to represent and warrant as of the date
hereof and on each date on which information is provided under
Section 7.2 that, except as disclosed in writing to the Servicer prior
to such date: (i) there are no aspects of its financial condition that
could have a material adverse effect on the performance by it of its
Custodian obligations under this Agreement; (ii) there are no legal or
governmental proceedings pending (or known to be contemplated) against
it that would be material to holders of the Notes; and (iii) there are
no affiliations, relationships or transactions relating to the
Custodian with respect to the Originator, Servicer, Depositor, Owner
Trustee, Indenture Trustee or other material transaction party (as such
terms are used in Regulation AB) relating to the securitization
transaction contemplated by the Agreement.
(c) If so requested by the Servicer or the Depositor on any date
following the Closing Date, the Custodian shall, within five Business
Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (b) of this
Section or, if any such representation and warranty is not accurate as
of the date of such confirmation, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting party.
13
Section 7.2. Additional Representations and Warranties of the Custodian.
For so long as the Notes are outstanding, for the purpose of satisfying
the Depositor's reporting obligation under the Exchange Act with respect to
any class of Notes, the Custodian shall (a) notify the Servicer in writing of
any material litigation or governmental proceedings pending or known to be
contemplated against the Custodian that would be material to Noteholders, and
(b) provide to the Servicer a written description of such proceedings. As of
the date the Servicer files each Report on Form 10-D or Form 10-K with
respect to the Notes, the Custodian will be deemed to represent that any
information previously provided under this Article VII is materially correct
and does not have any material omissions unless the Custodian has provided an
update to such information.
Section 7.3. Report on Assesment of Compliance and Attestation
On or before March 15 of each calendar year, the Custodian shall:
(a) deliver to the Servicer a report (in form and substance reasonably
satisfactory to the Servicer) regarding the Custodian's assessment of
compliance with the applicable servicing criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be addressed to the Servicer and signed by an authorized officer
of the Custodian; and
(b) deliver to the Servicer a report of a registered public accounting
firm reasonably acceptable to the Servicer that attests to, and reports
on, the assessment of compliance made by the Custodian and delivered
pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act.
Section 7.4. Indemnification; Remedies. The Custodian shall indemnify
the Originator, the Servicer, the Depositor, and each affiliate of such
parties and each Person who controls any of such parties (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and
the respective present and former directors, officers, employees and agents
of each of the foregoing, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(a) (i) any untrue statement of a material fact contained or alleged to be
contained in the Custodian Disclosure and any information, report,
certification, accountants' attestation or other material provided
under this Article VII by or on behalf of the Custodian (collectively,
the "Custodian Information"), or (ii) the omission or alleged omission
to state in the Custodian Information a material fact required to be
stated in the Custodian Information or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; or
(b) any failure by the Custodian to deliver any information, report,
certification, accountants' attestation or other material when and as
required under this Article VII.
14
[Signature Pages Follow]
15
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
ORIGINATOR
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By:_____________________________________
Name:
Title:
SERVICER
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Servicer
By:_____________________________________
Name:
Title:
DEPOSITOR
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Depositor
By:_____________________________________
Name:
Title:
ISSUING ENTITY
CATERPILLAR FINANCIAL ASSET TRUST
200[_]-[_]
By: [NAME], not in its individual
capacity but solely as Owner
Trustee under the Trust Agreement
By:_____________________________________
Name: __________
Title: __________
[NAME]
[NAME], as Indenture Trustee
By:_____________________________________
Name: __________
Title: __________
CUSTODIAN
[NAME], as Custodian
By:_____________________________________
Name: __________
Title: __________
EXHIBIT A
CUSTODIAN CERTIFICATION
Certification No._____
[DATE]
To: [DEPOSITOR]
[ISSUING ENTITY]
[INDENTURE TRUSTEE]
Re: Custodial Agreement, dated as of [Date] (the "Custodial
Agreement"), by and among Caterpillar Financial Services
Corporation (the "Originator"), Caterpillar Financial
Services Corporation, as Servicer (the "Servicer"),
Caterpillar Financial Funding Corporation (the
"Depositor"), Caterpillar Financial Asset Trust 200[_]-[_]
(the "Issuing Entity"), [NAME], as Indenture Trustee (the
"Indenture Trustee") and [NAME], as Custodian (the
"Custodian")
Gentlemen:
[In accordance with the provisions of Section 4.1 of the
above-referenced Custodial Agreement, the Custodian hereby certifies (i) that
it has received the Receivable Files delivered to it by the Originator, and
(ii) that as to each Receivable, Custodian holds such Receivable and the
other documents in the related Receivable File in its name as custodian
solely on behalf of and for the benefit of [the Depositor] [the Issuing
Entity] [the Indenture Trustee], without written notice (a) of any adverse
claims, liens or encumbrances, (b) that any Receivable was overdue or has
been dishonored, (c) of evidence on the face of any Receivable or other
document in the Receivable File of any security interest therein, or (d) of
any defense against or claim to the Receivable by any other party.] [In
accordance with the provisions of Section 4.1 of the above-referenced
Custodial Agreement, the Custodian hereby certifies that it has received all
of the Receivable Files identified on the Receivable Schedule (the
"Receivable Schedule") attached hereto dated as of [Date]. The undersigned,
as Custodian, confirms that the Receivable number in each Receivable File
conforms to the respective Receivable number listed on the Receivable
Schedule.] Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Custodial Agreement.
Custodian makes no representations or warranties as to the
validity, legality, sufficiency, enforceability, genuineness or prior
recorded status of any of the documents contained in each Receivable File or
the collectability, insurability, effectiveness or suitability of any
Receivable.
A-1
[Upon repurchase of the Receivables to which this Custodian
Certification relates and payment of the applicable repurchase price, the
Receivables to which this Custodian Certification relates shall be returned
and released by Custodian to the Person paying such repurchase price, and
this Custodian Certification shall be and be deemed to be canceled by
Custodian and of no force and effect.]
________________________________________,
as Custodian
By_______________________________________
Name:
Title:
A-2
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
To: [Custodian]
Re: Custodial Agreement, dated as of [Date], by and among
Caterpillar Financial Services Corporation (the
"Originator"), Caterpillar Financial Services Corporation,
as Servicer (the "Servicer"), Caterpillar Financial Funding
Corporation (the "Depositor"), Caterpillar Financial Asset
Trust 200[_]-[_] (the "Issuing Entity"), [NAME], as
Indenture Trustee (the "Indenture Trustee") and [NAME], as
Custodian ("Custodian")
In connection with the administration of the Receivables held by
you as Custodian under the above-referenced Custodial Agreement, [_________],
on behalf of [________], requests the release, and acknowledges receipt, of
the following for the Receivable described below, for the reason indicated:
A. Documents Released
_____ 1a. Installment Sale Contract or Lease b. Principal Balance
____________________
_____ 2. Other documents:____________________________
____________________________________________
____________________________________________
____________________________________________
B. Obligor's Name, Address & Zip Code:
C. Receivable Number:
D. Reason for Requesting Documents (check one)
_____ 1. Receivable Paid in Full.
_____ 2. Receivable Repurchased Pursuant to the Purchase Agreement
or the Sale and Servicing Agreement.
_____ 3. Receivable Liquidated.
_____ 4. Receivable in Foreclosure or Repossession Proceedings.
_____ 5. Receivable to be modified or extended.
If box 1, 2 or 3 above is checked, and if all or part
of Receivable File was previously released to us, please release
to us our previous receipt on file with you, as well as any
additional documents in your possession relating to the above
B-1
specified Receivable. If box 1, 2 or 3 is checked, evidence of
receipt of payment by the Indenture Trustee is required prior to
release.
If box 4 or 5 above is checked, upon our return of
all of the above documents to you as Custodian, please
acknowledge your receipt by signing in the space indicated below,
and returning this form.
If box 5 above is checked, after giving effect to
such release, the aggregate Principal Balance of all Receivables
released in connection with modifications and extensions shall
not exceed $[__________]. In addition, upon return of the
Receivable File, we are deemed to certify that the Receivable
File as returned contains the related Receivable as so modified
and extended.
If box 1, 2 or 3 above is checked, this request is
only valid if also executed by the Depositor and the Indenture
Trustee.
Documents released hereby in connection with a modification or
extension must be returned to the Custodian on the same Business Day of
release.
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Servicer
By_______________________________________
Name:
Title:
Date:
[_______________________________________]
By_______________________________________
Name:
Title:
Date:
Documents returned to Custodian:
________________________________
as Custodian
By______________________________
Name:
Title:
Date:
B-2
ANNEX 1
Authorized Officers of Servicer
B-3
EXHIBIT C
TRANSFER CERTIFICATE
[NAME],
as Custodian under the
Custodial Agreement (defined below
[Address] [DATE]
Re: Custodial Agreement, dated as of [Date] (the "Custodial
Agreement"), by and among Caterpillar Financial Services
Corporation (the "Originator"), Caterpillar Financial
Services Corporation, as Servicer (the "Servicer"),
Caterpillar Financial Funding Corporation (the
"Depositor"), Caterpillar Financial Asset Trust 200[_]-[_]
(the "Issuing Entity"), [NAME], as Indenture Trustee (the
"Indenture Trustee") and [NAME], as Custodian ("Custodian")
To whom it may concern:
Pursuant to Sections 3.1 and 4.1 of the above-referenced
Custodial Agreement (capitalized terms used herein but not otherwise defined
shall have the same meanings assigned to such terms in the Custodial
Agreement), we hereby advise you of the Transfer by the undersigned to [the
Depositor][the Issuing Entity][the Indenture Trustee] of the Receivables
identified on the Receivable Schedule[s] attached [hereto] [to the
[Depositor's Custodian Certification] [Issuing Entity's Custodian
Certification] with respect to the undersigned which we are delivering to you
for cancellation]. You are instructed to hold such Receivables for [the
Depositor] [the Issuing Entity] [the Indenture Trustee] and to deliver to
[the Depositor][the Issuing Entity][the Indenture Trustee] a [Depositor's]
[Issuing Entity's] [Trustee's] Custodian Certification acknowledging that you
hold such Receivables.
Very truly yours,
By_______________________________________
Name:
Title:
The Custodian hereby acknowledges receipt of
the foregoing instructions and agrees to hold
such Receivables solely for [the Depositor]
[the Issuing Entity] [the Indenture Trustee]
pursuant to the Custodial Agreement.
[NAME]
By:_________________________________
Name:
Title:
C-1
