PURCHASE AGREEMENT dated as of May 1, 2004, between CATERPILLAR
FINANCIAL SERVICES CORPORATION, a Delaware corporation, and CATERPILLAR
FINANCIAL FUNDING CORPORATION, a Nevada corporation.
WHEREAS in the regular course of its business, the Seller (as
hereinafter defined) has originated or purchased certain fixed-rate retail
installment sale contracts and finance lease contracts secured by new and
used machinery and equipment; and
WHEREAS the Seller and the Purchaser (as hereinafter defined) wish to
set forth the terms pursuant to which the Receivables (as hereinafter
defined) are to be sold by the Seller to the Purchaser, which Receivables
will be transferred by the Purchaser, pursuant to the Sale and Servicing
Agreement (as hereinafter defined), to Caterpillar Financial Asset Trust
2004-A (the "Trust"), and the Trust will issue an Asset Backed Certificate
(the "Certificate"), which will represent an undivided interest in the Trust.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Definitions. Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control", when used
with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, by contract
or otherwise; and the terms "controlled by," "controlling" and "under common
control with" have meanings correlative to the foregoing.
"Agreement" shall mean this Purchase Agreement, as the same may be
amended, modified or supplemented from time to time.
"Assignment" shall mean the document of assignment, a form of which is
attached to this Agreement as Exhibit A.
"Basic Documents" shall have the meaning given such term in the
Indenture.
"Certificate" shall have the meaning given such term in the Trust
Agreement.
"Closing Date" shall mean May 25, 2004.
"Contract" shall have the meaning given such term in the Sale and
Servicing Agreement.
"Custodian" shall mean U.S. Bank National Association, in its capacity
as custodian under the Custodial Agreement.
"Custodial Agreement" shall mean the Custodial Agreement dated as of
May 1, 2004, among the Seller, the Purchaser, the Trust and U.S. Bank
National Association.
"Indenture" shall mean the Indenture dated as of May 1, 2004 between
the Trust and U.S. Bank National Association, as indenture trustee, as the
same may be amended, modified or supplemented from time to time.
"Notes" shall mean the Class A-1 1.37040% Asset Backed Notes, the Class
A-2 2.18% Asset Backed Notes, the Class A-3 3.13% Asset Backed Notes and the
Class B 3.71% Asset Backed Notes issued pursuant to the Indenture.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Prospectus" shall mean the Prospectus (which consists of a base
prospectus dated May 19, 2003, and a prospectus supplement dated May 18,
2004) pursuant to which the Notes were offered.
"Purchaser" shall mean Caterpillar Financial Funding Corporation, a
Nevada corporation, its successors and assigns.
"Receivable" shall have the meaning given such term in the Sale and
Servicing Agreement.
"Repurchase Event" shall have the meaning specified in Section 6.02(a).
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of May 1, 2004, among the Trust, the Purchaser (in its
capacity as seller thereunder) and the Seller (in its capacity as Servicer
thereunder), as the same may be amended, modified or supplemented from time
to time.
"Schedule of Receivables" shall mean the list of Receivables annexed
hereto as Schedule A (which may be in the form of microfiche).
"Seller" shall mean Caterpillar Financial Services Corporation, a
Delaware corporation, its successors and assigns.
"Trust" shall mean the Caterpillar Financial Asset Trust 2004-A, a
Delaware statutory trust.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement
dated as of May 25, 2004, between the Purchaser and Chase Manhattan Bank USA,
National Association, as owner trustee, as the same may be amended, modified
or supplemented from time to time.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
SECTION 1.02. Other Definitional Provisions. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture, or
if not defined therein, in the Trust Agreement.
(b) All terms defined in this Agreement shall have the meanings
contained herein when used in any document made or delivered pursuant
hereto unless otherwise defined therein.
(c) As used in this Agreement and in any document made or
delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such other document, and accounting terms
partly defined in this Agreement or in any such other document to the
extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such other
document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in
this Agreement or in any such other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; Section and Exhibit references contained in this Agreement
are references to Sections and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean "including
without limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables. In consideration of the sale on
the Closing Date of $660,300,220 in Contract Balance of Receivables as of the
Cut-off Date, the Purchaser shall (i) deliver to or upon the order of the
Seller an amount equal to $639,429,079 in cash and (ii) accept a capital
contribution from the Seller equal to $20,871,141. The Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse (subject to the obligations herein), all right, title and
interest in and to the following, whether now owned or hereafter acquired:
(a) all right, title and interest of the Seller, in and to the
Receivables, and all moneys (including accrued interest) due thereunder
on and after the Cut-off Date;
(b) the interests of the Seller in the security interests in
the Transaction Equipment granted by Obligors pursuant to the
Receivables and any other interest of the Seller in such Transaction
Equipment;
(c) the interest and rights of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage, credit
life or disability insurance policies covering Financed Equipment or
Obligors, as the case may be;
(d) the interest of the Seller in any proceeds of repossessed
or returned Transaction Equipment;
(e) the interest of the Seller in any proceeds from recourse to
or other payments by Dealers on Receivables; and
(f) the proceeds of any and all of the foregoing.
It is the express intent of the parties hereto that the conveyance of
the Receivables by the Seller to the Purchaser as provided in this Agreement
be, and be construed as, a sale of the Receivables by the Seller to the
Purchaser. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Receivables by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in
the event, notwithstanding the intent of the parties, the Receivables are
held to be property of the Seller, or if for any reason this Agreement is
held or deemed to create a security interest in the Receivables then,
(a) this Agreement shall also be deemed to be a security agreement within the
meaning of Article 9 of the UCC; and (b) the conveyance provided for in this
Agreement shall be a grant by the Seller to the Purchaser of a security
interest in and to all of the Seller's right, title, and interest, whether
now owned or hereafter acquired, in and to the property described in clauses
(a) through (f) above, in order to secure the obligations of the Seller
hereunder. The possession by the Custodian of the Contracts and other
property shall be deemed to be possession by the secured party or possession
by a purchaser for purposes of perfecting the security interest pursuant to
the UCC (including, without limitation, Sections 9-313 and 9-314 thereof).
Notifications to persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Purchaser or its assignee (as applicable) for the purpose of perfecting such
security interest under applicable law. In connection herewith, the
Purchaser (or its assignee) shall have all of the rights and remedies of a
secured party and creditor under the UCC.
Any assignment of the interest of the Purchaser pursuant to this
Section 2.01 shall also be an assignment of the security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement creates a security interest in or lien on the Receivables, such
security interest or lien would be a perfected security interest or lien of
first priority under applicable law and will be maintained as such throughout
the term of the Agreement.
SECTION 2.02. Ownership and Custody of Receivables Files.
(a) Upon the acceptance by the Seller of the amount set forth
in Section 2.01, the ownership of each Receivable and the contents of
the related Receivables File shall be vested in the Purchaser.
(b) In connection with the sale of the Receivables, pursuant to
Section 2.01, within thirty (30) days of the Closing Date, the Seller
shall deliver each Receivable File to the Custodian on behalf of the
Purchaser.
SECTION 2.03. Books and Records.
The transfer of each Receivable shall be reflected on the Seller's
balance sheets and other financial statements prepared in accordance with
generally accepted accounting principles as a sale of assets by the Seller to
the Purchaser. The Seller shall be responsible for maintaining, and shall
maintain, a complete and accurate set of accounts, records and computer files
for each Receivable which shall be clearly marked to reflect the ownership of
each Receivable by the Purchaser.
SECTION 2.04. Custody of Receivable Files. Pursuant to the Custodial
Agreement the Purchaser has appointed the Custodian, and the Custodian
accepted such appointment, to act as custodian of the Receivables Files.
SECTION 2.05. Certifications by the Servicer and the Custodian.
(a) In accordance with the terms of the Sale and Servicing
Agreement, the Servicer will review the Receivable Files and deliver
the certification required by Section 3.05(a) of the Sale and Servicing
Agreement.
(b) In accordance with the terms of the Custodial Agreement,
the Custodian will review each of the Receivable Files and deliver the
certifications or notices required by to Sections 3.1 and 4.1 of the
Custodial Agreement. It is understood that the scope of the
Custodian's review of the Receivable Files is limited solely to
confirming that it has received each Receivable File. The Seller
agrees to use reasonable efforts to cause to be delivered to the
Custodian any Receivable File that the Custodian determines is missing
and to cause to be remedied a material defect in a document
constituting part of a Receivables File. If, however, within 60 days
after it has delivered the Receivable Files to the Custodian (A) the
Seller has not caused such missing Receivable File to be delivered, or
(B) the Seller has not caused to be remedied any defect described in
the certification it is required to deliver pursuant to Section 3.05(a)
of the Sale and Servicing Agreement, and such defect materially and
adversely affects the interest of the Purchaser in the related
Receivable, the Seller shall remit the Purchase Amount with respect to
such Receivable to the Purchaser. The sole remedy of the Issuer, the
Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholder with respect to a breach shall be to require the
Seller to repurchase Receivables pursuant to this Section, subject to
the conditions contained herein. The Owner Trustee shall have no duty
to conduct any affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Receivable pursuant to this
Section.
SECTION 2.06. The Closing.
The conveyance of the Receivables shall take place on the Closing Date,
simultaneously with the closing of the transactions contemplated by the Sale
and Servicing Agreement, the underwriting agreements related to the Notes and
the other Basic Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Purchaser. The Purchaser
hereby represents and warrants to the Seller as of the date hereof and as of
the Closing Date:
(a) Organization and Good Standing. The Purchaser is duly
organized, validly existing in good standing under the laws of the
State of Nevada, and has the power and authority to own its properties
and to conduct the business in which it is currently engaged, and had
at all relevant times, and has, the power, authority and legal right to
acquire and own the Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and to carry out its
terms and the execution, delivery and performance of this Agreement has
been duly authorized by the Purchaser by all necessary corporate action.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or by-laws of the
Purchaser, or any indenture, agreement or other instrument to which the
Purchaser is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than the Sale and Servicing Agreement and the Indenture); nor
violate any law or, to the best of the Purchaser's knowledge, any
order, rule or regulation applicable to the Purchaser of any court,
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or
its properties.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the Purchaser's best knowledge, threatened, before any
court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or
its properties which (i) assert the invalidity of this Agreement,
(ii) seek to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seek any determination or
ruling that might materially and adversely affect the performance by
the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.02. Representations and Warranties of Seller. (a) The Seller
hereby represents and warrants to the Purchaser of the date hereof and as of
the Closing Date:
(i) Organization and Good Standing. The Seller is duly organized, validly
existing in good standing under the laws of the State of
Delaware, and has the power and authority to own its properties
and to conduct the business in which it is currently engaged, and
had at all relevant times, and has, the power, authority and
legal right to acquire and own the Receivables.
(ii) Due Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of property or the conduct of its business
shall require such qualifications.
(iii) Power and Authority. The Seller has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Seller
has full power and authority to sell and assign the property sold
and assigned to the Purchaser hereby and has duly authorized such
sale and assignment to the Purchaser by all necessary corporate
action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Seller by all necessary
corporate action.
(iv) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof neither
conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or
by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the Seller's
knowledge, any order, rule or regulation applicable to the Seller
of any court, federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Seller or its properties.
(v) No Proceedings. There are no proceedings or investigations pending,
or, to the best of Seller's knowledge, threatened, before any
court, federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Seller or its properties which (A) assert the invalidity of this
Agreement, (B) seek to prevent the consummation of any of the
transactions contemplated by this Agreement, or (C) seek any
determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement.
(vi) No Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery by the
Seller of this Agreement or any other Basic Document, the
performance by the Seller of the transactions contemplated by
this Agreement or any other Basic Document and the fulfillment by
the Seller of the terms hereof or thereof, have been obtained or
have been completed and are in full force and effect (other than
approvals, authorizations, consents, orders or other actions
which if not obtained or completed or in full force and effect
would not have a material adverse effect on the Seller or upon
the collectability of any Receivable or upon the ability of the
Seller to perform its obligations under this Agreement).
(b) The Seller makes the following representations and
warranties as to the Receivables on which the Purchaser relied in
accepting the Receivables. The parties hereto acknowledge that the
representations and warranties below require the Seller to monitor
conditions that it may not have the ability to monitor. Accordingly,
wherever the Seller makes, or is deemed to make, a representation that
it cannot monitor, such representation shall be made as if prefaced
with the phrase "to the best of the Seller's knowledge"; provided,
however, that the determination as to whether a Repurchase Event has
occurred pursuant to Section 6.02 of this Agreement shall be made
without reliance on whether the Seller actually had knowledge of the
accuracy of any of its representations. Such representations and
warranties speak as of the execution and delivery of this Agreement but
shall survive the sale, transfer and assignment of the Receivables to
the Purchaser and the subsequent assignments and transfers of the
Receivables pursuant to the Sale and Servicing Agreement and the
Indenture:
(i) Characteristics of Receivables. Each Receivable (A) was originated in
the United States of America by the Seller in the ordinary course
of business or was originated by a Dealer in the ordinary course
of business, in each case in connection with the retail sale by a
Dealer of Financed Equipment in the ordinary course of such
Dealer's business, was fully and properly executed by the parties
thereto, and if originated by such Dealer, was purchased by the
Seller from such Dealer and was validly assigned by such Dealer
to the Seller in accordance with its terms, (B) has created a
valid, subsisting and enforceable (subject to paragraph (iv)
below) first priority security interest in favor of the Seller in
the Financed Equipment, and if applicable, a valid, subsisting
and enforceable (subject to paragraph (iv) below) security
interest in favor of the Seller in the Cross-Collateralized
Equipment, which security interests are assignable by the Seller
to the Purchaser, by the Purchaser to the Issuer and by the
Issuer to the Indenture Trustee, (C) contains customary and
enforceable (subject to paragraph (iv) below) provisions such
that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the
security, and (D) provides for fixed payments (except as
described below) on a periodic basis, yields interest at a
fixed-rate (in the case of Receivables related to an Installment
Sales Contract) and is prepayable without premium or penalty at
any time. The fixed payments provided for are sufficient to
amortize the Amount Financed of such Receivable by maturity and
yield interest at the APR.
(ii) Schedule of Receivables. The information set forth in the Schedule of
Receivables to this Agreement is true and correct in all material
respects as of the opening of business on the Cut-off Date and no
selection procedures believed to be adverse to the Noteholders or
the Certificateholder were utilized in selecting the
Receivables. The computer tape regarding the Receivables made
available to the Purchaser and its assigns is true and correct in
all respects.
(iii) Compliance with Law. Each Receivable and the sale or lease of the
Financed Equipment complied at the time it was originated or
made, and at the execution of this Agreement complies in all
material respects, with all requirements of applicable federal,
state and local laws and regulations thereunder, including usury
laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and S, and other equal credit opportunity and
disclosure laws.
(iv) Binding Obligations. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof (which as of the Closing Date
is the Seller) in accordance with its terms, subject to
bankruptcy, insolvency and other laws relating to the enforcement
of creditors' rights generally and to general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law). Such enforceability has not
been and is not adversely affected by whether or not the Seller
was or is qualified to do business in the state in which the
Obligor was or is located.
(v) Security Interest in Financed Equipment. Immediately prior to the
sale, assignment and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest
in the Financed Equipment in favor of the Seller as secured
party. As of the Cut-off Date, such Financed Equipment is
located in the United States.
(vi) Receivables in Force. No Receivable has been satisfied, subordinated
or rescinded, nor has any Financed Equipment been released from
the lien granted by the related Receivable in whole or in part.
No Receivable is rescindable on the basis of whether or not the
Seller was or is qualified to do business in the state in which
the Obligor was or is located.
(vii) Prospectus Information. As of the Cut-off Date, each Receivable
conforms and all Receivables in the aggregate conform, in all
material respects, to the description set forth in the
Prospectus, including all statistical data or otherwise.
(viii) No Amendments. No Receivable has been amended such that the
amount of the Obligor's Scheduled Payments has been increased or
decreased, except for increases or decreases resulting from the
inclusion of any premium for forced-placed physical damage
insurance covering the Financed Equipment.
(ix) No Defenses. No right of rescission, setoff, counterclaim or defense
has been asserted or threatened with respect to any Receivable.
(x) No Liens. No liens or claims have been filed for work, labor or
materials relating to any Financed Equipment that are liens prior
to, or equal or coordinate with, the security interest in the
Financed Equipment granted by the Receivable.
(xi) No Default. No Receivable has a payment that is more than 31 days
overdue as of the Cut-off Date and, except as permitted in this
paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Receivable has occurred and
is continuing; and (except for payment defaults continuing for a
period of not more than 31 days) no continuing condition that
with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the
terms of any Receivable has arisen; and the Seller has not waived
and shall not waive any of the foregoing.
(xii) Insurance. The Seller, in accordance with its customary procedures,
has determined that each Obligor has obtained physical damage
insurance covering the Financed Equipment, and under the terms of
the Receivable such Obligor is required to maintain such
insurance.
(xiii) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Purchaser, and that the
beneficial interest in and title to the Receivables not be part
of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Purchaser. Immediately prior
to the transfer and assignment herein contemplated, the Seller
has good and marketable title to each Receivable, free and clear
of all Liens, encumbrances, security interests and rights of
others and, immediately upon the transfer thereof, the Purchaser
shall have good and marketable title to each Receivable, free and
clear of all Liens, tax, governmental or similar liens,
encumbrances, security interests and rights of others; and the
transfer of the Receivables to the Purchaser has been perfected
under the UCC.
(xiv) Lawful Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer
and assignment of such Receivable or any Receivable under this
Agreement, the Sale and Servicing Agreement or the Indenture is
unlawful, void or voidable.
(xv) All Actions Taken. All actions necessary to give the Purchaser a first
priority perfected ownership interest in the Receivables pursuant
to the applicable UCC have been taken.
(xvi) Leases. Each Lease, relating to any Receivable (A) creates a security
interest rather than a lease for purposes of Section 1-201 of the
UCC, (B) is not a "consumer lease" within the meaning of Article
2A of the UCC in any jurisdiction where said Article 2A has been
adopted and governs the construction thereof, (C) to the best
knowledge of Seller, the related Obligor has accepted the related
Financed Equipment leased to it and has not notified Seller of
any defects therein, (D) is by its terms an absolute and
unconditional obligation of the related Obligor, non-cancelable
and except in certain instances involving loss or damage to the
related Financed Equipment, non-prepayable prior to the
expiration of the initial term of such Lease of the related
Obligor, (E) requires the related Obligor to maintain the related
Financed Equipment for its own account, (F) the rights with
respect to such Lease are assignable by the Seller thereunder
without the consent of any Person, (G) is net to the Seller of
any maintenance, taxes, insurance or other expenses and
(H) contains provisions requiring the related Obligor to assume
all risk of loss or malfunction of the related Financed Equipment.
(xvii) Maturity of Receivables. Each Receivable has a final scheduled
payment date due not later than the payment date occurring in
April 2009 as of the Cut-off Date and the weighted average
remaining term of the Receivables is 41 months as of the Cut-off
Date.
(xviii) Location of Receivable Files. The Receivable Files are kept at
the location listed in Schedule B to the Sale and Servicing
Agreement.
(xix) Outstanding Contract Balance. Each Receivable has an outstanding
Contract Balance of at least $5,002 as of the Cut-off Date.
(xx) No Bankruptcies. No Obligor on any Receivable as of the Cut-off Date
was noted in the related Receivable File as having filed for
bankruptcy or as being subject to a bankruptcy proceeding and to
the Seller's knowledge no such proceeding is pending or
threatened against any Obligor.
(xxi) No Repossessions. No Financed Equipment securing any Receivable is in
repossession status.
(xxii) Chattel Paper. Each Receivable constitutes "tangible chattel
paper" within the meaning of the UCC of the States of New York
and Nevada.
(xxiii) Obligors. None of the Receivables is due from any Person which
does not have a mailing address in the United States of America.
No Receivable is due from the United States of America or any
State or from any agency, department, instrumentality or
political subdivision of the United States of America or any
State.
(xxiv) One Original. There is only one Original Contract related to
each Receivable. With respect to each Receivable, the Seller has
a perfected, first priority ownership or security interest in
such Receivable, free and clear of all Liens, encumbrances,
security interests or rights of others.
(xxv) Payment Frequency. As of the Cut-off Date and as shown on the books of
the Seller, Receivables having an aggregate Contract Balance
equal to approximately 86.0% of the aggregate Contract Balance of
all Receivables had monthly scheduled payments; and as of the
Cut-off Date and as shown on the books of the Seller, Receivables
having an aggregate Contract Balance equal to approximately 14.0%
of the aggregate Contract Balance of all Receivables had
scheduled payments which have monthly scheduled payments other
than certain months specified therein for which payment is
skipped.
(xxvi) Interest Accrual. Each Receivable related to an Installment
Sales Contract is, as of the Closing Date, accruing interest.
(xxvii) Notification of Obligors. With respect to each Dealer
Receivable, the related Obligor has been notified with respect to
the assignment of the related Contract to the Seller.
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to the Obligation of the Purchaser. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct on the
Closing Date with the same effect as if then made, and the Seller shall
have performed all obligations to be performed by it hereunder on or
prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own
expense on or prior to the Closing Date, (i) indicate in its computer
files that receivables created in connection with the Receivables have
been sold to the Purchaser pursuant to this Agreement and sold by the
Purchaser to the Trust pursuant to the Sale and Servicing Agreement and
(ii) deliver to the Purchaser the Schedule of Receivables certified by
the Chairman, the President, a Vice President, Secretary, the Treasurer
or an Assistant Treasurer of the Seller to be true, correct and
complete.
(c) Documents to be Delivered by Seller at Closing.
(i) Assignment. On the Closing Date, the Seller will execute and deliver
the Assignment. The Assignment shall be substantially in the
form of Exhibit A hereto.
(ii) Evidence of UCC Filings for Sale to Purchaser. On or prior to the
Closing Date, the Seller shall deliver to the Purchaser, for its
inspection and review, completed UCC requests for information,
dated on or before the Closing Date, listing all effective
financing statements filed with the Delaware Secretary of State
listing the Seller as debtor.
(iii) [Intentionally Omitted]
(iv) Other Documents. Such other documents as the Purchaser may reasonably
request.
(d) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement and the Indenture to be consummated on the
Closing Date shall be consummated on such date.
SECTION 4.02. Conditions to Obligation of Seller. The obligation of the
Seller to sell the Receivables to the Purchaser is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct on
the Closing Date with the same effect as if then made, and the
Purchaser shall have performed all obligations to be performed by it
hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the
Purchaser shall have delivered to the Seller the purchase price
specified in Section 2.01.
SECTION 4.03. Junior Liens on Financed Equipment and Other Equipment.
(a) To the extent that any item of Financed Equipment is subject to a
security interest in favor of the Seller (an "Other Security Interest") to
secure an obligation of the related Obligor that is not part of a Receivable
that has been transferred to the Purchaser pursuant to Section 2.01 (an
"Other Obligation"), then the Seller agrees that, notwithstanding any other
provision of any document, instrument, or agreement to the contrary, and
until (i) the related Receivable has been paid in full or (ii) the security
interest in such item of Financed Equipment that secures the Receivable (the
"Receivable Security Interest") has been discharged or released, (A) the
Receivable Security Interest in the Financed Equipment shall be prior and
senior to the Other Security Interest in the Financed Equipment, and the
Other Security Interest in the Financed Equipment shall be subordinate and
junior to the Receivable Security Interest in the Financed Equipment, (B) the
Seller shall not transfer the Other Obligation to an Affiliate of the Seller
or a trust (other than the Trust) established by the Purchaser or any of its
Affiliates unless the documentation for such transaction provides that the
Receivable Security Interest in the Financed Equipment shall be prior and
senior to the Other Security Interest in the Financed Equipment, and the
Other Security Interest in the Financed Equipment shall be subordinate and
junior to the Receivable Security Interest in the Financed Equipment, and (C)
the Seller shall not transfer the Other Obligation (other than as described
in clause (B)) unless the transferee agrees in writing that the Receivable
Security Interest in the Financed Equipment shall be prior and senior to the
Other Security Interest in the Financed Equipment, and the Other Security
Interest in the Financed Equipment shall be subordinate and junior to the
Receivable Security Interest in the Financed Equipment.
(b) To the extent that any Receivable is secured by a security
interest in any equipment other than the Financed Equipment (the "Other
Equipment") and such Other Equipment is subject to a security interest
(the "Affiliate Trust Security Interest") in favor of the Seller that
has been assigned by the Seller to a trust (other than the Trust)
established by the Purchaser or any of its Affiliates, then the Seller
and the Purchaser agree that that the Affiliate Trust Security Interest
in the Other Equipment shall be prior and senior to the security
interest in the Other Equipment that secures the Receivable, and the
security interest in the Other Equipment that secures the Receivable
shall be subordinate and junior to the Affiliate Trust Security
Interest in the Other Equipment.
ARTICLE V
COVENANTS OF THE SELLER AND THE PURCHASER
The Seller and the Purchaser agree with each other as follows;
provided, however, that to the extent that any provision of this Article
conflicts with any provision of the Sale and Servicing Agreement, the Sale
and Servicing Agreement shall govern:
SECTION 5.01. Protection of Right, Title and Interest. (a) Further
Assurances. The Seller shall take all actions to preserve and protect the
right, title and interest of the Purchaser in and to the Receivables and the
other property included in the Owner Trust Estate. The Purchaser shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill
the purpose of this paragraph.
(b) Name Change. Within 15 days after the Seller makes any
change in its name or type or jurisdiction of organization, the Seller
shall give the Purchaser notice of any such change.
(c) UCC Financing Statements. The Seller shall file and
maintain all appropriate financing statements (in the proper filing
office, in the appropriate jurisdiction), necessary to perfect, and
maintain the perfection of, the ownership interest or security interest
of the Purchaser in the Receivables.
SECTION 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Sale and Servicing Agreement, the Indenture and
the other Basic Documents, the Seller shall not sell, pledge, assign or
transfer to any Person, or grant, create, incur, assume or suffer to exist
any Lien on, any interest in, to and under the Receivables, and the Seller
shall defend the right, title and interest of the Purchaser in, to and under
the Receivables against all claims of third parties claiming through or under
the Seller or any Dealer; provided, however, that the Seller's obligations
under this Section shall terminate one year and one day after the termination
of the Trust pursuant to the Trust Agreement.
SECTION 5.03. Chief Executive Office. During the term of the
Receivables, the Seller will maintain its chief executive office in one of
the United States.
SECTION 5.04. Corporate Existence. (a) During the term of this
Agreement, the Purchaser will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of Nevada and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration
of this Agreement and the Sale and Servicing Agreement and the transactions
contemplated hereby.
(b) The Seller will not take any action or fail to take any
action if such act or omission would cause the Purchaser not to observe
the covenants set forth in Section 5.04(c) of this Agreement or to
violate the provisions of the Purchaser's certificate of incorporation.
(c) The Purchaser and the Seller agree that Purchaser's and the
Seller's businesses shall be conducted as follows, and neither
Purchaser nor the Seller shall take any action or fail to take any
action if such act or omission would cause such businesses not to be
conducted as follows:
(i) The Purchaser will maintain both an office at which its business is and
will be conducted and a telephone number separate from the Seller
or any of the Seller's Affiliates.
(ii) At least two of the Purchaser's directors are not and will not be
directors, officers or employees of the Seller or any of the
Seller's Affiliates. No employee of the Purchaser shall engage
in any servicing functions with respect to the Receivables and,
with respect to the Purchaser, shall only engage in corporate
governance and clerical functions. So long as the Purchaser
maintains an employee at its office, the Purchaser shall at all
times maintain comprehensive liability and workmen's compensation
insurance (as is customary for commercial enterprises) in an
amount, when taking into account any available umbrella policy,
at least equal to $5,000,000.
(iii) The Purchaser will maintain corporate records and books and accounts
separate from those of the Seller or any of the Seller's
Affiliates.
(iv) Except as expressly permitted by the Sale and Servicing Agreement with
respect to collections on the Receivables prior to the transfer
of such collections to the Collection Account, the Purchaser's
funds will not be commingled with those of the Seller or any of
the Seller's Affiliates, and the Purchaser shall maintain bank
accounts separate from those of the Seller or any of the Seller's
Affiliates.
(v) The Seller shall maintain records permitting a determination on a daily
basis of the amount and location of any of its funds which are
commingled as permitted under clause (iv) above.
(vi) The Board of Directors of the Purchaser will take appropriate corporate
action (including without limitation holding meetings or acting
by unanimous consent) to authorize all of the Purchaser's
corporate actions, and minutes shall be maintained by the
Purchaser separate and apart from those of the Seller or any of
the Seller's Affiliates.
(vii) The Purchaser shall at all times be adequately capitalized to engage in
the transactions contemplated at its formation. Without limiting
the foregoing, the Purchaser shall at all times maintain capital
sufficient to pay its rent, salary of any employee, and any
required insurance from the Closing Date until the termination of
the Trust in accordance with the terms and conditions of the
Trust Agreement.
(viii) The Purchaser shall not incur or guarantee any debt other than
under the Sale and Servicing Agreement, nor shall the Purchaser
make any loans, pledge its assets for the benefit of any other
entity or hold out its credit as being available to satisfy the
obligations of others, other than as permitted by the Purchaser's
Certificate of Incorporation.
(ix) The Purchaser shall not engage in any transaction with the Seller or
any of the Seller's Affiliates on terms more favorable than in a
similar transaction involving a third party.
(x) The Purchaser shall at all times use its own stationery.
(xi) The Purchaser shall always be described as a separate corporation, and
never as a department, division or otherwise of the Seller or any
of the Seller's Affiliates.
(xii) The Purchaser shall act solely in its own corporate name and through
its own authorized officers and agents. Neither the Purchaser
nor any of Purchaser's Affiliates shall be appointed agent of the
Seller, except as expressly provided for by the Sale and
Servicing Agreement and the Administration Agreement.
(xiii) The data and records (including computer records) used by the
Purchaser or the Seller in the collection and administration of
the Receivables shall reflect the Purchaser's ownership interest
therein.
(xiv) Other than organizational expenses, the Purchaser shall be responsible
for the payment of all expenses including the salaries of its
employees, indebtedness and other obligations incurred by it,
including a fair and reasonable allocation for shared office
space.
(xv) The Purchaser shall at all times hold itself out to the public under
the Purchaser's own name as a legal entity separate and distinct
from the Seller and any of the Seller's Affiliates and shall
correct any known misunderstanding regarding its separate
identity.
(xvi) None of the Purchaser's funds nor any of the funds held by the Seller
on behalf of the Purchaser or the holders of the Certificate or
the Notes shall be invested in securities issued by the Seller or
any of the Seller's Affiliates.
The Purchaser shall at all times maintain a sufficient
number of employees in light of its contemplated business
operations.
At any time the Notes are outstanding, the Seller shall not
(A) dissolve or liquidate, (B) merge or consolidate with any
other entity, (C) sell its assets substantially in their entirety
to any other entity or (D) amend its articles of incorporation,
in each case unless the Rating Agency Condition is satisfied.
(d) The Purchaser and the Seller will each furnish to the other
on or before April 30 of each year (commencing April 30, 2005) for so
long as any Certificate or Note remains outstanding an Officer's
Certificate to the effect that all of its obligations under this
Section 5.04 have been fulfilled throughout the preceding calendar year
(or the period from the Closing Date until December 31, 2004, as
applicable), or, if there has been any default in the fulfillment of
any such obligations, specifying each such default known to the signer
thereof and the nature and status thereof.
(e) The Seller will not transfer or assign any interest in the
Purchaser except pursuant to an instrument under which the transferee
or assignee of such interest expressly assumes the performance of all
covenants of the Seller to be performed or observed under this
Section 5.04.
(f) The annual audited financial statements of the Purchaser
and the Seller will reflect the results of the issuance of the Notes
and Certificates in accordance with generally accepted accounting
principles and also disclose that the assets of the Seller are not
available to pay creditors of the Purchaser or any other Affiliate of
the Seller.
SECTION 5.05. Indemnification. (a) The Seller shall indemnify the
Purchaser for any liability as a result of the failure of a Receivable to be
originated in compliance with all requirements of law and for any breach of
any of its representations and warranties contained herein, other than the
representations and warranties made pursuant to Section 3.02(b) for which the
sole remedy shall be provided by Section 6.02 hereof; provided, however, that
the Seller shall indemnify the Purchaser for any liability arising from a
breach of Section 3.02(b)(ii), (iii) and (xxv). These indemnity obligations
shall be in addition to any obligation that the Seller may otherwise have.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Receivable.
SECTION 6.02. Repurchase Events. (a) The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Indenture
Trustee, the Noteholders, the Owner Trustee and the Certificateholder that
the occurrence of a breach of any of the Seller's representations and
warranties contained in Section 3.02(b) (other than the representation and
warranty contained in Section 3.02(b)(xxv)) in respect of a Receivable shall
constitute an event obligating the Seller to repurchase such Receivable
(each, a "Repurchase Event"), at the Purchase Amount from the Purchaser or
from the Trust.
(b) These repurchase obligations of the Seller shall constitute
the sole remedies to the Purchaser, the Indenture Trustee, the
Noteholders, the Owner Trustee or the Certificateholder against the
Seller with respect to any Repurchase Event.
(c) The terms and conditions of the Purchaser's rights and
obligations to enforce its right of repurchase pursuant to this
Section 6.02 shall be governed by Section 3.02 of the Sale and
Servicing Agreement.
SECTION 6.03. Purchaser Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this
Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest in and
to such Receivables, and all security and documents relating thereto.
SECTION 6.04. Trust. The Seller acknowledges and agrees that (a) the
Purchaser will, pursuant to the Sale and Servicing Agreement, sell the
Receivables to the Trust and assign its rights under this Agreement to the
Trust, (b) the Trust will, pursuant to the Indenture, assign such Receivables
and such rights to the Indenture Trustee and (c) the representations and
warranties contained in this Agreement and the rights of the Purchaser under
this Agreement, including under Section 6.02, are intended to benefit the
Trust, the Certificateholder and the Noteholders (and may be enforced
directly by the Indenture Trustee on behalf of the Noteholders and by the
Owner Trustee on behalf of the Trust or the Certificateholder). The Seller
hereby consents to all such sales and assignments.
SECTION 6.05. Amendment. This Agreement may be amended from time to
time, with prior written notice to the Rating Agencies, by a written
amendment duly executed and delivered by the Seller and the Purchaser,
without the consent of the Noteholders or the Certificateholder, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Noteholders or Certificateholder; provided that such amendment
will not, in the Opinion of Counsel, materially and adversely affect the
interest of any Noteholder or the Certificateholder or the federal tax
characterization of the Notes. This Agreement may also be amended by the
Seller and the Purchaser, with prior written notice to the Rating Agencies,
with the consent of the Noteholders evidencing a majority in the Outstanding
Amount of the Notes and the Certificateholder for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or
the Certificateholder; provided, however, that no such amendment may
(i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, any payment by Seller hereunder or collections of payments on
Receivables or distributions that are required to be made for the benefit of
Noteholders or the Certificateholder or (ii) reduce the aforesaid percentage
of the Notes and the Certificate which are required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes
and the holder of the Certificate.
SECTION 6.06. Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude and any other or further
exercise thereof or the exercise of any other power, right or remedy.
SECTION 6.07. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been
duly given upon receipt (a) in the case of the Seller, to Caterpillar
Financial Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, XX
00000-0000, (000) 000-0000; (b) in the case of the Purchaser, to Caterpillar
Financial Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000 (702) 735-2514; (c) in the case of Moody's, to Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; and (d) in the case of Standard & Poor's, to Standard & Poor's
Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Asset Backed Surveillance Department; or as to each of the
foregoing, at such other address as shall be designated by written notice to
the other parties.
SECTION 6.08. Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement, and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and
interest in and to the Receivables and the enforcement of any obligation of
the Seller hereunder.
SECTION 6.09. Representations of Seller and Purchaser. The respective
agreements, representations, warranties and other statements by the Seller
and the Purchaser set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under
Section 2.02.
SECTION 6.10. Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any Person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, under the Sale and Servicing Agreement or
the Indenture or any other Basic Document or as required by any of the
foregoing or by law.
SECTION 6.11. Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement.
SECTION 6.12. Governing Law. THIS AGREEMENT AND THE ASSIGNMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.13. Counterparts. This Agreement may be executed in two or
more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
CATERPILLAR FINANCIAL FUNDING
CORPORATION, as Purchaser
By:
Name:
Title:
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Seller
By:
Name:
Title:
SCHEDULE A
SCHEDULE OF RECEIVABLES
[see attachment]
Schedule A-1
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
(the "Purchase Agreement") dated as of May 1, 2004, between the undersigned
and Caterpillar Financial Funding Corporation (the "Purchaser"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto the
Purchaser, without recourse, (i) all right, title and interest of the
undersigned in and to the Receivables, and all moneys (including accrued
interest) due thereunder on and after the Cut-off Date; (ii) the interests of
the undersigned in the security interests in the Transaction Equipment
granted by the Obligors pursuant to the Receivables and any other interest of
the undersigned in such Transaction Equipment, including Liquidation
Proceeds; (iii) the interest and rights of the undersigned in any proceeds
with respect to the Receivables from claims on any physical damage, credit
life, liability or disability insurance policies relating to the Financed
Equipment or Obligors, as the case may be; (iv) the interest of the
undersigned in any proceeds from recourse to or other payment by Dealers on
Receivables; and (v) the proceeds of any and all of the foregoing.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of May 25, 2004.
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By:
Name:
Title:
Exhibit A-1
EXECUTION COPY
PURCHASE AGREEMENT
between
CATERPILLAR FINANCIAL SERVICES CORPORATION
Seller
and
CATERPILLAR FINANCIAL FUNDING CORPORATION
Purchaser
Dated as of May 1, 2004
TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS............................................1
SECTION 1.01. Definitions..............................................1
ARTICLE II CONVEYANCE OF RECEIVABLES......................................3
SECTION 2.01. Conveyance of Receivables................................3
SECTION 2.02. Ownership and Custody of Receivables Files...............4
SECTION 2.03. Books and Records........................................4
SECTION 2.04. Custody of Receivable Files..............................5
SECTION 2.05. Acceptance by Purchaser of the Receivables;
Certification by the Indenture Trustee............................5
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................6
SECTION 3.01. Representations and Warranties of Purchaser..............6
ARTICLE IV CONDITIONS.....................................................12
SECTION 4.01. Conditions to the Obligation of the Purchaser...........12
SECTION 4.02. Conditions to Obligation ofSeller.......................13
ARTICLE V COVENANTS OF THE SELLER AND THE PURCHASER......................14
SECTION 5.01. Protection of Right, Title and Interest.................14
SECTION 5.02. Other Liens or Interests................................14
SECTION 5.03. Chief Executive Office..................................14
SECTION 5.04. Corporate Existence.....................................14
ARTICLE VI MISCELLANEOUS PROVISIONS......................................17
SECTION 6.01. Obligations of Seller...................................17
SECTION 6.02. Repurchase Events.......................................17
SECTION 6.03. Purchaser Assignment of Repurchased Receivables.........17
SECTION 6.04. Trust...................................................18
SECTION 6.05. Amendment...............................................18
SECTION 6.06. Waivers.................................................18
SECTION 6.07. Notices.................................................18
SECTION 6.08. Costs and Expenses......................................19
SECTION 6.09. Representations of Seller and Purchaser.................19
SECTION 6.10. Confidential Information................................19
SECTION 6.11. Headings and Cross-References...........................19
SECTION 6.12. Governing Law...........................................19
SECTION 6.13. Counterparts............................................19
