CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT is made as of May 1, 2004, by and among
CATERPILLAR FINANCIAL SERVICES CORPORATION (the "Originator"), CATERPILLAR
FINANCIAL SERVICES CORPORATION, as servicer (the "Servicer"), CATERPILLAR
FINANCIAL FUNDING CORPORATION (the "Seller"), CATERPILLAR FINANCIAL ASSET
TRUST 2004-A (the "Trust"), U.S. BANK NATIONAL ASSOCIATION, as indenture
trustee (the "Indenture Trustee") and U.S. BANK NATIONAL ASSOCIATION, 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 Seller.
WHEREAS, pursuant to the Sale and Servicing Agreement, the Seller
will sell the Receivables acquired pursuant to the Purchase Agreement to the
Trust.
WHEREAS, pursuant to the Indenture, the Trust will Grant to the
Indenture Trustee, as trustee all of the Trust's right, title and interest
in, to and under the Receivables and the other assets of the Trust.
WHEREAS, during such time as the Originator, the Seller, the
Trust 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 Seller, the Trust 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 Seller, the Trust 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.
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 Seller,
the Trust, 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 Article I of the Sale and Servicing Agreement dated as of
May 1, 2004 (the "Sale and Servicing Agreement") among the Trust, the Seller
and the Servicer or in Article I of the Indenture dated as of May 1, 2004
(the "Indenture") between the Trust 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.
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 Seller, the Trust and the Indenture Trustee, as their
interests may appear, hereby appoint U.S. Bank National Association, and U.S.
Bank National Association 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
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, or at such of
its other offices in Nevada as Custodian shall designate from time to time
after giving the Originator, the Seller, the Trust, 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 Seller 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 Seller, the Servicer or any of the Servicer's Affiliates.
Article III
CUSTODIAL ARRANGEMENT
Section 3.1. Transfer of Receivables; Delivery of Documents. Within
thirty (30) days of the Closing Date, the Originator shall deliver, or cause
to be delivered, to the Custodian, the Receivable Files, including without
limitation, 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 hereto (a "Transfer
Certificate"), evidencing the Transfer of the Receivables from the Originator
to the Seller 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 Seller a Custodian
Certification (as defined in Section 3.2 below) (the "Seller's Custodian
Certification") certifying that it is holding the Receivable Files delivered
to it by the Originator on behalf of the Seller.
Upon receipt of the Seller's Custodian Certification, the Seller
shall deliver to the Custodian a Transfer Certificate evidencing the Transfer
of the Receivables from the Seller to the Trust 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 Trust a Custodian Certification (the "Trust's Custodian
Certification") certifying that it is holding the Receivable Files delivered
to it by the Originator on behalf of the Trust.
Upon receipt of the Trust's Custodian Certification, the Trust
shall deliver to the Custodian a Transfer Certificate evidencing the Transfer
of the Receivables from the Trust 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.
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, the Sale and Servicing Agreement and the Indenture, 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
hereto 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 hereto
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 hereto 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 (5) Business Days of such
release and (ii) if such Receivable File has not been returned to the
Custodian within such five (5) 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
release of such Receivable File, the aggregate Principal Balance of all
Receivables having released Receivable Files in connection with modifications
and extensions exceeds $500,000.
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 Trust to the Indenture Trustee pursuant to the Indenture shall terminate
without any further action by the Custodian, the Originator, the Seller 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 Closing 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 hereto duly
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 fifteen (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 Seller 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 hereto as
Exhibit B, from the Seller and the Trust 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.
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 Seller 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 Seller 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 Seller, the Servicer, the Trust 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; except that no representation or warranty is
made as to compliance with laws and regulations, other than those
of the United States and the State of Illinois, relating to
qualifications, licensure or regulation of custodians of
receivables originated in states other than Illinois;
(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 thereunder, 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 or thereby; except that no
representation or warranty is made as to consents, approvals,
authorizations or orders of any courts or governmental agencies
or bodies, other than those of the United States and the State of
Illinois, relating to qualifications, licensure or regulation of
custodians of receivables originated in states other than
Illinois;
(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 Seller, the Trust 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 Seller 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 Seller to pay any of such charges or expenses
and (ii) in the event the Seller 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 Seller or another Person has made adequate provision for payment
of Custodian's fees and expenses. The Seller 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 Seller, the Servicer, the Trust and the 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 Seller, the Indenture Trustee, the Trust 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 and/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.
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 Trust, the Originator, the
Seller 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 Seller, the Servicer, the Trust 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.
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 Seller, Caterpillar Financial
Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000, (iii) in the case of the Trust, c/o Chase Manhattan Bank USA, National
Association, as Owner Trustee, c/o XX Xxxxxx Xxxxx, 500 Xxxxxxx Xxxxxxxxxx
Road, OPS4, 0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, 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, U.S. Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, (v) in the case of the Custodian, U.S. Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000,
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 Seller, the Trust 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.
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 Seller or the Trust, or
join in any institution against the Seller or the Trust 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 U.S. Bank National Association 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.
(b) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as Owner
Trustee, and in no event shall Chase Manhattan Bank USA, National
Association have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or
in any of the certificates, notices or agreements delivered pursuant
hereto, as to all of which recourse shall be had solely to the assets
of the Issuer. 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.
[Signature Pages Follow]
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:
SELLER
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Seller
By:
Name:
Title:
TRUST
CATERPILLAR FINANCIAL ASSET TRUST
2004-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement
By:
Name: Xxxx X. Xxxxxx
Title: Vice President
INDENTURE TRUSTEE
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee
By:
Name: Xxxxxxx Xxxxx
Title: Vice President
CUSTODIAN
U.S. BANK NATIONAL ASSOCIATION, as
Custodian
By:
Name: Xxxxxxx Xxxxx
Title: Vice President
EXHIBIT A
CUSTODIAN CERTIFICATION
Certification No._____
[DATE]
To: [SELLER]
[TRUST]
[INDENTURE TRUSTEE]
Re: Custodial Agreement, dated as of May 1, 2004 (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
"Seller"), Caterpillar Financial Asset Trust 2004-A (the
"Trust"), U.S. Bank National Association, as Indenture
Trustee (the "Indenture Trustee") and U.S. Bank
National Association, 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 Seller] [the Trust] [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 May 1, 2004. 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.
[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:
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
To: [Custodian]
Re: Custodial Agreement, dated as of May 1, 2004, by and among
Caterpillar Financial Services Corporation (the
"Originator"), Caterpillar Financial Services Corporation,
as Servicer (the "Servicer"), Caterpillar Financial Funding
Corporation (the "Seller"), Caterpillar Financial Asset
Trust 2004-A (the "Trust"), U.S. Bank National Association,
as Indenture Trustee (the "Indenture Trustee") and U.S.
Bank National Association,
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
and/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
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 $500,000. 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 Seller 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:
ANNEX 1
Authorized Officers of Servicer
EXHIBIT C
TRANSFER CERTIFICATE
U.S. Bank National Association,
as Custodian under the
Custodial Agreement (defined below)
000 Xxxxx Xxxxxxxx Xxxxxx [DATE]
Xxxxxxx, XX 00000
Re: Custodial Agreement, dated as of May 1, 2004 (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
"Seller"), Caterpillar Financial Asset Trust 2004-A (the
"Trust"), U.S. Bank National Association, as Indenture
Trustee (the "Indenture Trustee") and U.S. Bank
National Association, 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
Seller][the Trust][the Indenture Trustee] of the Receivables identified on
the Receivable Schedule[s] attached [hereto] [to the [Seller's Custodian
Certification] [Trust'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 Seller] [the Trust] [the
Indenture Trustee] and to deliver to [the Seller][the Trust][the Indenture
Trustee] a [Seller's] [Trust's] [Trustee's] Custodian Certification
acknowledging such transfer of these 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 Seller] [the
Trust] [the Indenture Trustee] pursuant to the
Custodial Agreement.
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
EXECUTION COPY
CUSTODIAL AGREEMENT
among
CATERPILLAR FINANCIAL SERVICES CORPORATION
Originator and Servicer
CATERPILLAR FINANCIAL FUNDING CORPORATION
Seller
CATERPILLAR FINANCIAL ASSET TRUST 2004-A
Issuer
and
U.S. BANK NATIONAL ASSOCIATION
Indenture Trustee and Custodian
Dated as of May 1, 2004
TABLE OF CONTENTS
Page
DOCSLA1:472927.7 i
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.................................2
Section 2.2. Maintenance of Office....................................2
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........................................6
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.................7
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.....................................9
Section 5.3. No Adverse Interests.....................................9
Section 5.4. Inspections..............................................9
Section 5.5. Insurance................................................9
Section 5.6. Limitation of Liability.................................10
Section 5.7. Indemnification.........................................10
Section 5.8. Further Rights of Custodian.............................10
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..........................................12
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
EXHIBIT A CUSTODIAN CERTIFICATION........................................A-1
EXHIBIT B REQUEST FOR RELEASE OF DOCUMENTS...............................B-1
EXHIBIT C Transfer Certificate...........................................C-1