AMENDED AND RESTATED TRUST AGREEMENT between CATERPILLAR FINANCIAL FUNDING CORPORATION Depositor and BNYM (DELAWARE), Owner Trustee Dated as of April 29, 2008
Exhibit
4.2
AMENDED
AND RESTATED TRUST AGREEMENT
between
Depositor
and
BNYM
(DELAWARE),
Owner
Trustee
Dated
as of April 29, 2008
TABLE
OF CONTENTS
Page
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DEFINITIONS
1
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Section
1.01. Capitalized Terms
1
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Section
1.02. Other Definitional Provisions
3
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ARTICLE
II
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ORGANIZATION
4
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Section
2.01. Name
4
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Section
2.02. Office
4
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Section
2.03. Purpose and Powers
4
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Section
2.04. Appointment of Owner Trustee
5
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Section
2.05. Initial Capital Contribution of Trust
Estate 5
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Section
2.06. Declaration of Trust
5
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Section
2.07. Liability of the Certificateholder
6
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Section
2.08. Title to Trust Property
6
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Section
2.09. Situs of Trust
6
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Section
2.10. Representations and Warranties of
Depositor 6
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Section
2.11. Amended and Restated Trust Agreement
7
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ARTICLE III
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CERTIFICATES
AND TRANSFER OF INTERESTS
7
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Section
3.01. Initial Ownership
7
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Section
3.02. Form of Certificates
7
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Section
3.03. Authentication of the Certificates
8
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Section
3.04. Registration of Transfer of the
Certificates
8
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Section
3.05. Mutilated, Destroyed, Lost or Stolen
Certificate
9
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Section
3.06. Persons Deemed Owner
9
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Section
3.07. Access to List of Certificateholder's Names and
Addresses 9
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Section
3.08. Maintenance of Office or Agency
9
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Section
3.09. Appointment of Paying Agents
9
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Section
3.10. Certificates Nonassessable and Fully
Paid 10
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ARTICLE IV
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ACTIONS
BY OWNER TRUSTEE
10
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Section
4.01. Prior Notice to Certificateholders with Respect to Certain
Matters 10
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Section
4.02. Action By the Certificateholders with Respect to Certain
Matters 11
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Section
4.03. Action By Certificateholders with Respect to
Bankruptcy
11
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-i-
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Section
4.04. Restrictions on Certificateholders'
Power 11
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ARTICLE V
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APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
11
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Section
5.01. Establishment of Trust Account
11
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Section
5.02. Application of Trust Funds
12
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Section
5.03. Method of Payment
12
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Section
5.04. No Segregation of Monies; No Interest
13
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Section
5.05. Accounting and Report to the Noteholders, the
Certificateholders, the Internal Revenue Service and
Others 13
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ARTICLE VI
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AUTHORITY
AND DUTIES OF OWNER TRUSTEE
13
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Section
6.01. General Authority
13
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Section
6.02. General Duties
13
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Section
6.03. Action Upon Instruction
14
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Section
6.04. No Duties Except as Specified in This Agreement or in
Instructions
14
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Section
6.05. No Action Except under Specified Documents or
Instructions
15
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Section
6.06. Restrictions
15
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ARTICLE VII
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CONCERNING
THE OWNER TRUSTEE
15
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Section
7.01. Acceptance of Trusts and Duties
15
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Section
7.02. Furnishing of Documents
16
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Section
7.03. Representations and Warranties
17
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Section
7.04. Reliance; Advice of Counsel
17
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Section
7.05. Not Acting in Individual Capacity
17
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Section
7.06. Owner Trustee Not Liable for the Certificates, Notes or
Receivables
18
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Section
7.07. Owner Trustee May Own the Certificates and
Notes 18
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ARTICLE VIII
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COMPENSATION
OF OWNER TRUSTEE
18
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Section
8.01. Owner Trustee's Fees and Expenses
18
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Section
8.02. Indemnification
19
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Section
8.03. Payments to the Owner Trustee
19
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ARTICLE IX
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TERMINATION
OF TRUST AGREEMENT
19
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Section
9.01. Termination of Trust Agreement
19
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ARTICLE X
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SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
20
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Section
10.01. Eligibility Requirements for Owner
Trustee 20
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Section
10.02. Resignation or Removal of Owner
Trustee 20
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Section
10.03. Successor Owner Trustee
21
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Section
10.04. Merger or Consolidation of Owner
Trustee 22
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Section
10.05. Appointment of Co-Trustee or Separate
Trustee 22
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ARTICLE XI
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MISCELLANEOUS
23
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Section
11.01. Supplements and Amendments
23
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Section
11.02. No Legal Title to Owner Trust Estate in the
Owner 24
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Section
11.03. Limitations on Rights of Others
24
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Section
11.04. Notices
24
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Section
11.05. Severability
25
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Section
11.06. Separate Counterparts
25
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Section
11.07. Successors and Assigns
25
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Section
11.08. No Petition
25
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Section
11.09. No Recourse
25
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Section
11.10. Headings
25
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Section
11.11. GOVERNING LAW
25
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Section
11.12. Certificate Transfer Restrictions
26
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Section
11.13. Depositor Payment Obligation
26
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ARTICLE XII
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REGULATION
AB COMPLIANCE
27
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Section
12.01. Intent of the Parties; Reasonableness
27
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Section
12.02. Additional Representation and Warranty of the Owner
Trustee 27
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Section
12.03. Information to Be Provided by the Owner
Trustee 27
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EXHIBITS
EXHIBIT
A – FORM OF CERTIFICATE A-1
EXHIBIT
B – CERTIFICATE OF TRUST B-1
EXHIBIT
C – CERTIFICATEHOLDER CERTIFICATION C-1
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-iii-
THIS
AMENDED AND RESTATED TRUST AGREEMENT, dated as of April 29, 2008, is between
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as depositor,
and BNYM (DELAWARE), a Delaware banking
corporation, as trustee.
ARTICLE
I
DEFINITIONS
Section
1.01. Capitalized
Terms. For all purposes of this Agreement, the following terms
shall have the meanings set forth below:
"Administration
Agreement" means the Administration Agreement, dated as of April 1, 2008,
among the Administrator, the Issuing Entity, the Depositor and the Indenture
Trustee, as the same may be amended, modified or supplemented from time to
time.
"Administrator" means
Caterpillar Financial Services Corporation, a Delaware corporation, or any
successor Administrator under the Administration Agreement.
"Agreement" means this
Trust Agreement, as the same may be amended, modified or supplemented from time
to time.
"Basic Documents"
means the Purchase Agreement, the Sale and Servicing Agreement, the Indenture,
the Administration Agreement, the Depository Agreement, the Interest Rate Swap
Agreement, the Notes, the Certificates and the other documents and certificates
delivered in connection therewith.
"Benefit Plan
Investor" has the meaning specified in Section
11.12.
"Certificate Balance"
has the meaning specified in the Sale and Servicing Agreement.
"Certificate Distribution
Account" has the meaning specified in Section 5.01.
"Certificate of Trust"
means the Certificate of Trust in the form of Exhibit B which has been
filed for the Issuing Entity pursuant to Section 3810(a) of the Statutory
Trust Statute.
"Certificate Register"
and "Certificate
Registrar" means the register mentioned and the registrar appointed
pursuant to Section 3.04.
"Certificateholder"
means the registered holder of Certificates.
"Certificateholder
Certification" means a certification with respect to non-foreign status
and Benefit Plan Investor status in the form of Exhibit
C.
"Code" means the
Internal Revenue Code of 1986, as amended.
"Commission" means the
United States Securities and Exchange Commission or any successor
entity.
"Corporate Trust
Office" means, with respect to the Owner Trustee, the principal corporate
trust office of the Owner Trustee located at 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000; or at such other address as the Owner Trustee may
designate by notice to the Certificateholders, the Administrator, and the
Depositor, or the principal corporate trust office of any successor Owner
Trustee (the address of which the successor owner trustee will notify the
Depositor, the Administrator, and the Certificateholders).
"Depositor" means
Caterpillar Financial Funding Corporation in its capacity as Depositor, and its
successors in such capacity.
"Depository Agreement"
means the agreement, dated April 28, 2008, among the Issuing Entity, the
Indenture Trustee and The Depository Trust Company.
"Exchange Act" means
the Securities Exchange Act of 1934, as amended.
"Expenses" has the
meaning specified in Section 8.02.
"Indemnified Parties"
has the meaning specified in Section 8.02.
"Indenture" means the
Indenture, dated as of April 1, 2008, between the Issuing Entity and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Indenture Trustee"
means U.S. Bank National Association, not in its individual capacity but solely
as Indenture Trustee under the Indenture, and any successor Indenture Trustee
under the Indenture.
"Issuing Entity" means
Caterpillar Financial Asset Trust 2008-A, a Delaware statutory trust created
pursuant to the Original Trust Agreement.
"Original Trust
Agreement" means the Trust Agreement, dated as of April 1, 2008, between
Depositor and Owner Trustee.
"Owner Trust Estate"
means all right, title and interest of the Issuing Entity in and to the property
and rights assigned to the Issuing Entity pursuant to Article II of the Sale and
Servicing Agreement, all funds on deposit from time to time in the Trust
Accounts and the Certificate Distribution Account and all other property of the
Issuing Entity from time to time, including any rights of the Owner Trustee and
the Issuing Entity pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Owner Trustee" means
BNYM (Delaware), a Delaware banking corporation, not in its individual capacity
but solely as owner trustee under this Agreement, and any successor Owner
Trustee hereunder.
"Paying Agent" means
any paying agent or co-paying agent appointed pursuant to Section 3.09 and
shall initially be BNYM (Delaware), a Delaware banking corporation.
2
"Record Date" means,
with respect to any Distribution Date and the Certificates, at the close of
business on the last calendar day of the month preceding the month in which such
Distribution Date occurs.
"Regulation AB" means
Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time to
time.
"Sale and Servicing
Agreement" shall mean the Sale and Servicing Agreement, dated as of April
1, 2008, among the Issuing Entity, the Depositor, as depositor, and Caterpillar
Financial Services Corporation, as servicer, as the same may be amended,
modified or supplemented from time to time.
"Secretary of State"
means the Secretary of State of the State of Delaware.
"Securities Act" means
the Securities Act of 1933, as amended.
"Servicing Criteria"
means the "servicing criteria" set forth in Item 1122(d) of Regulation AB, as
such may be amended from time to time.
"Statutory Trust
Statute" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801
et seq., as the same may
be amended from time to time.
"Transaction Party"
means the Issuing Entity, the Depositor, the Servicer, the Owner Trustee, the
Indenture Trustee, the Administrator, and any other material transaction party
in connection with the Notes.
"Treasury Regulations"
means regulations, including proposed or temporary regulations, promulgated
under the Code. References herein to specific provisions of proposed or
temporary regulations shall include analogous provisions of final Treasury
Regulations or other successor Treasury Regulations.
"Trust" means the
Issuing Entity.
Section
1.02. Other Definitional
Provisions.
(a) Capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Sale and Servicing Agreement or, if not defined therein, in the
Indenture.
(b) All
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
3
(c) As
used in this Agreement and in any certificate or other document made or
delivered pursuant hereto, accounting terms not defined in this Agreement or in
any such certificate or other document, and accounting terms partly defined in
this Agreement or in any such certificate or other document to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The
words "hereof," "herein," "hereunder," and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation"; the term "or" is not exclusive; and the term
"proceeds" has the meaning set forth in the UCC.
(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
ORGANIZATION
Section
2.01.
Name. The
Trust created by the Original Trust Agreement shall be known as "Caterpillar
Financial Asset Trust 2008-A," in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section
2.02.
Office. The
office of the Trust shall be in care of the Owner Trustee at the Corporate Trust
Office or at such other address in the State of Delaware as the Owner Trustee
may designate by written notice to the Depositor and the
Administrator.
Section
2.03.
Purpose and
Powers.
(a) The
purpose of the Trust is to engage in the following activities:
(i) to
issue the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes pursuant
to the Indenture and the Certificates pursuant to this Agreement, and to sell
$182,000,000 aggregate principal amount of the Class A-1 Notes, $105,000,000
aggregate principal amount of Class A-2a Notes, $122,000,000 aggregate principal
amount of the Class A-2b Notes and $199,671,000 aggregate principal amount of
Class A-3 Notes to or upon the written order of the Depositor pursuant to Section 2.01 of the
Sale and Servicing Agreement and issue the Certificates with an initial
Certificate Balance of $33,387,349 to or upon the written order of the Depositor
pursuant to Section
2.01 of the Sale and Servicing Agreement;
4
(ii) with
the proceeds from capital contributions from the Depositor to pay the
organizational, start-up and transactional expenses of the Trust and to fund the
Reserve Account;
(iii) to
assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant
to the Indenture and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Sale and Servicing Agreement and this Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to
enter into and perform its obligations under the Basic Documents to which it is
to be a party;
(v) to
engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith;
(vi) to
enter into and perform its obligations under any interest rate protection
agreement or agreements relating to the Notes between the Issuing Entity and one
or more Swap Counterparties, including any confirmations, evidencing the
transactions thereunder (including the Interest Rate Swap Agreement);
and
(vii) subject
to compliance with the Basic Documents, to engage in such other activities as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Swap Counterparty, the Certificateholders and
the Noteholders.
The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
Section
2.04.
Appointment of Owner
Trustee. The Depositor hereby appoints the Owner Trustee as
trustee of the Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein.
Section
2.05.
Initial Capital Contribution
of Trust Estate. Pursuant to the Original Trust Agreement, the
Depositor sold, assigned, transferred, conveyed and set over to the Owner
Trustee, as of the date thereof, the sum of $100. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date of the
Original Trust Agreement, of the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section
2.06. Declaration of
Trust. The Owner Trustee hereby declares that it will hold the
Owner Trust Estate in trust upon and subject to the conditions set forth herein
for the use and benefit of the Certificateholder, subject to the obligations of
the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Statutory
Trust Statute and that this Agreement constitute the governing instrument of
such statutory trust. It is the intention of the parties hereto that,
for income and franchise tax purposes, the Trust shall be treated as a
"disregarded entity" and, therefore, shall be disregarded as an entity separate
from the Certificateholder. The parties agree that, unless otherwise
required by appropriate tax authorities, the Trust will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a disregarded entity for such tax purposes.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers
and duties set forth herein and in the Statutory Trust Statute with respect to
accomplishing the purposes of the Trust.
5
Section
2.07. Liability of the
Certificateholder. The Certificateholder shall not have any
personal liability for any liability or obligation of the Trust.
Section
2.08. Title to Trust
Property. Legal title to all the Owner Trust Estate shall be
vested at all times in the Trust as a separate legal entity except where
applicable law in any jurisdiction requires title to any part of the Owner Trust
Estate to be vested in one or more trustees, in which case title shall be deemed
to be vested in the Owner Trustee, a co-trustee or a separate trustee, as the
case may be.
Section
2.09.
Situs of
Trust. The Trust will be located and administered in the State
of Delaware. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Delaware or the State of New
York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the
Trust only in Delaware or New York, and payments will be made by the Trust only
from Delaware or New York. The only office of the Trust will be at
the Corporate Trust Office in Delaware.
Section
2.10.
Representations and
Warranties of Depositor. The Depositor hereby represents and
warrants to the Owner Trustee that:
(a) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Nevada, with power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) The
Depositor is duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the failure to so qualify or to obtain such license or
approval would render any Receivable unenforceable that would otherwise be
enforceable by the Depositor, the Servicer or the Owner Trustee.
(c) The
Depositor has the power and authority to execute and deliver this Agreement and
to carry out its terms; the Depositor has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Trust and
the Depositor shall have duly authorized such sale and assignment and deposit to
the Trust by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Depositor by all
necessary corporate action.
(d) The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation or by-laws of
the Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court, federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
6
(e) There
are no proceedings or investigations pending, or, to the best of Depositor's
knowledge, threatened, before any court, federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties which (i) assert the invalidity of this
Agreement or any of the Basic Documents, (ii) seek to prevent the consummation
of any of the transactions contemplated by this Agreement or any of the Basic
Documents, or (iii) seek any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement or any of the Basic
Documents.
Section
2.11.
Amended and Restated Trust
Agreement. This Agreement amends and restates in its entirety
the Original Trust Agreement.
ARTICLE
III
CERTIFICATES AND TRANSFER OF
INTERESTS
Section
3.01.
Initial
Ownership. Upon the formation of the Trust pursuant to the
Original Trust Agreement and thereafter so long as the Depositor remains the
sole Certificateholder, the Depositor shall be the sole beneficiary of the
Trust. Notwithstanding any other provision of this Agreement, the
interest of the Depositor in the Trust (including its interest by virtue of
being the holder of the Certificates) shall be transferable only in whole (and
together with its interest as Certificateholder) and any successor to the
Depositor pursuant to such a transfer shall thenceforth be deemed the Depositor
for purposes of this Agreement. No such transfer shall be effective
until such time as written notice thereof signed by both the transferor and
transferee and an executed copy of the Certificateholder Certification are
delivered to the Owner Trustee.
Section
3.02.
Form of
Certificates. The Certificates shall be issued in an original
Certificate Balance of $33,387,349 to or upon the written order of the
Depositor. The Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of a Trust Officer of the Owner
Trustee. The Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall, when duly
authenticated pursuant to Section 3.03, be
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of the Certificates or did not hold such
offices at the date of authentication and delivery of the
Certificates.
7
Section
3.03.
Authentication of the
Certificates. Concurrently with the initial sale of the
Receivables to the Trust pursuant to the Sale and Servicing Agreement, the Owner
Trustee shall cause the Certificates in a principal amount equal to the initial
Certificate Balance to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by its Chairman
of the Board, its President, any Vice President, its Treasurer, its Secretary or
any Assistant Treasurer, without further corporate action by the
Depositor. The Certificates shall not entitle their holder to any
benefit under this Agreement, or be valid for any purpose, unless there shall
appear on the Certificates a certificate of authentication substantially in the
form set forth in Exhibit A executed by the Owner Trustee or the Owner
Trustee's authentication agent, by manual signature; such authentication shall
constitute conclusive evidence that the Certificates shall have been duly
authenticated and delivered hereunder. The Certificates shall be dated the date
of their authentication.
Section
3.04.
Registration of Transfer of
the Certificates. The Certificate Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of the
Certificates and of transfers of the Certificates as herein
provided. BNYM (Delaware) shall be the initial Certificate
Registrar.
Upon
surrender for registration of transfer of the Certificates at the office or
agency maintained pursuant to Section 3.08, the
Owner Trustee shall execute, authenticate and deliver (or shall cause its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, a new Certificate of a like aggregate principal
amount dated the date of authentication by the Owner Trustee or any
authenticating agent. The Owner Trustee shall not register a transfer
of any Certificate unless the transferee of the Certificate delivers to the
Certificate Registrar and authenticating agent an executed Certificateholder
Certification and unless such transfer is of all the Certificates.
A
Certificate presented or surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or its attorney duly authorized in writing, along with a
Certificateholder Certification duly executed by the transferee of such
Certificate. The Certificate surrendered for registration of transfer
shall be cancelled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No
service charge shall be made for any registration of transfer of the
Certificates, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the
Certificates.
The
Certificates have not been and will not be registered under the Securities Act,
or any state securities laws and neither the Certificates nor any interest
therein may be offered, sold, pledged or otherwise transferred except in
accordance with applicable securities laws of any state of the United States and
in reliance on the private placement exemption of the Securities
Act. The Owner Trustee may (but shall not be obligated) at any time
or times request an Opinion of Counsel as to compliance with this restriction in
connection with any transfer of a Certificate.
8
Section
3.05.
Mutilated, Destroyed, Lost
or Stolen Certificate. If (a) a Certificate is
mutilated and shall be surrendered to the Certificate Registrar, or if the
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of a Certificate and (b) there shall be delivered to
the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a protected purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
the Owner Trustee's authenticating agent, shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this Section, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section
3.06.
Persons Deemed
Owner. Prior to due presentation of the Certificates for
registration of transfer, the Owner Trustee or the Certificate Registrar may
treat the Person in whose name a Certificate is registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.02 and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be bound by any notice to the contrary.
Section
3.07.
Access to List of
Certificateholder's Names and Addresses. The Owner Trustee
shall furnish or cause to be furnished to the Servicer and the Depositor, within
15 days after receipt by the Owner Trustee of a request therefor from the
Servicer or the Depositor in writing, the name and address of the
Certificateholders as of the most recent Record Date. Each
Certificateholder, by receiving and holding the Certificates, shall be deemed to
have agreed not to hold the Depositor, the Servicer, or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section
3.08.
Maintenance of Office or
Agency. The Owner Trustee shall maintain in the Borough of
Manhattan, in the City of New York, an office or offices or agency or agencies
where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee
initially designates BNYM (Delaware), x/x Xxx Xxxx xx Xxx Xxxx, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its principal corporate trust office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and the Administrator of any change in the location of the Certificate
Register or any such office or agency.
Section
3.09.
Appointment of Paying
Agents. The Paying Agent shall make distributions to the
Certificateholders from the Certificate Distribution Account pursuant to Section 5.02 and
shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall
initially be BNYM (Delaware), and any co-paying agent chosen by BNYM (Delaware)
and acceptable to the Owner Trustee. BNYM (Delaware) shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee and the Administrator. In the event that BNYM (Delaware)
shall no longer be the Paying Agent, the Owner Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. The Paying Agent shall return all unclaimed funds
to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The
provisions of Sections 7.01,
7.03, 7.04 and 8.01 shall apply to
the Owner Trustee also in its role as Paying Agent, for so long as the Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
9
Section
3.10.
Certificates Nonassessable
and Fully Paid. The interests represented by the Certificates
shall be nonassessable for any losses or expenses of the Issuing Entity or for
any reason whatsoever, and, upon the authentication thereof by the Owner Trustee
pursuant to Section 3.03, 3.04 or 3.05, the Certificates are and shall be deemed
fully paid.
ARTICLE
IV
ACTIONS BY OWNER
TRUSTEE
Section
4.01.
Prior Notice to
Certificateholders with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that the Certificateholders evidencing
more than 50% of the Certificate Balance have withheld consent or provided
alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (other than an action to collect
on a Receivable) and the compromise of any action, claim or lawsuit brought by
or against the Trust (other than an action to collect on a
Receivable);
(b) the
election by the Trust to file an amendment to the Certificate of
Trust;
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder or the Swap Counterparty is required;
10
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders;
(e) the
amendment, change or modification of the Administration Agreement, except to
cure any ambiguity or to amend or supplement any provision in a manner that
would not materially adversely affect the interests of the Certificateholders;
or
(f) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Trustee or the appointment pursuant to this Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent or Trustee or Certificate Registrar of its obligations under the
Indenture or this Agreement, as applicable.
Section
4.02.
Action By the
Certificateholders with Respect to Certain Matters. The Owner
Trustee shall not have the power, except upon the direction of
Certificateholders evidencing more than 50% of the Certificate Balance, to (a)
remove the Administrator under the Administration Agreement pursuant to
Section 8 thereof, (b) appoint a successor Administrator pursuant to
Section 8 of the Administration Agreement, (c) remove the Servicer under
the Sale and Servicing Agreement pursuant to Section 8.01 thereof or (d)
except as expressly provided in the Basic Documents, sell the Receivables after
the termination of the Indenture. The Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by Certificateholders evidencing Percentage Interests aggregating more
than 50%.
Section
4.03.
Action By Certificateholders
with Respect to Bankruptcy. The Owner Trustee shall not have the power to
commence a voluntary proceeding in bankruptcy relating to the Trust without the
prior approval of the Certificateholders and the delivery to the Owner Trustee
by Certificateholders evidencing more than 50% of the Certificate Balance of a
certificate certifying that such Certificateholders reasonably believe that the
Trust is insolvent.
Section
4.04.
Restrictions on
Certificateholders' Power. The Certificateholders shall not
direct the Owner Trustee to take or refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner
Trustee under this Agreement or any of the Basic Documents or would be contrary
to Section 2.03 nor
shall the Owner Trustee be obligated to follow any such direction, if
given.
ARTICLE
V
APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES
Section
5.01.
Establishment of Trust
Account. The Owner Trustee, for the benefit of the
Certificateholders, shall establish and maintain in the name of the Trust an
Eligible Securities Account (the "Certificate Distribution Account"), bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Certificateholders.
The
Owner Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholders. If, at
any time, the Certificate Distribution Account ceases to be an Eligible
Securities Account, the Owner Trustee shall within 10 Business Days following
notification of such occurrence (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Certificate Distribution Account as an Eligible Securities Account and shall
transfer any cash or any investments in the existing Certificate Distribution
Account to such new Certificate Distribution Account.
11
Section
5.02.
Application of Trust
Funds.
(a) On
each Distribution Date, the Owner Trustee will distribute amounts deposited in
the Certificate Distribution Account pursuant to Sections 5.05 and
5.06 of the
Sale and Servicing Agreement or pursuant to Section 5.04(b) or
5.04(c) of the
Indenture on or before such Distribution Date to the
Certificateholder.
(b) On
each Distribution Date, the Administrator shall send to the Certificateholders
the statement provided to the Administrator by the Servicer pursuant to Section 4.09 of
the Sale and Servicing Agreement on such Distribution Date.
(c) In
the event that any withholding tax is imposed on the Trust's payment (or
allocations of income) to the Certificateholders, such tax shall reduce the
amount otherwise distributable to the Certificateholders in accordance with this
Section. The Owner Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed or required to be withheld
by the Trust (but such authorization shall not prevent the Owner Trustee from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect
to the Certificateholders shall be treated as cash distributed to the
Certificateholders at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution, the Owner Trustee may
in its sole discretion withhold such amounts in accordance with this clause
(c). In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall reasonably cooperate
with the Certificateholder in making such claim so long as the Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
Section
5.03.
Method of
Payment. Subject to Section 9.01(c),
distributions required to be made to the Certificateholders on any Distribution
Date shall be made to the Certificateholders of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account of
such Certificateholders at a bank or other entity having appropriate facilities
therefor, if a Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Distribution Date or, if not, by check mailed to the Certificateholder at
the address of such Certificateholder appearing in the Certificate
Register.
Section
5.04.
No Segregation of Monies; No
Interest. Subject to Section 5.01 and
5.02, monies
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law, this Agreement, or the Sale and Servicing
Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
12
Section
5.05.
Accounting and Report to the
Noteholders, the Certificateholders, the Internal Revenue Service and
Others. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on a fiscal year basis ending December 31,
(or such other period as may be required by applicable law), with the first year
being a short year ending December 31, 2008, and on the accrual method of
accounting, (b) deliver to the Certificateholders, as may be required by the
Code and applicable Treasury Regulations, such information as may be required to
enable the Certificateholders to prepare their federal and state income tax
returns, and make such elections as may from time to time be required or
appropriate under any applicable state or federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a disregarded
entity for federal income tax purposes and (c) collect or cause to be collected
any withholding tax as described in and in accordance with Section 5.02(c)
with respect to distributions from the Trust.
ARTICLE
VI
AUTHORITY AND DUTIES OF
OWNER TRUSTEE
Section
6.01.
General
Authority. The Owner Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
the Basic Documents to which the Trust is to be a party, or any amendment
thereto or other agreement, in each case, in such form as the Depositor shall
approve as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator directs in
writing with respect to the Basic Documents.
Section
6.02.
General
Duties. It shall be the duty of the Owner Trustee to discharge
(or cause to be discharged) all of its responsibilities pursuant to the terms of
this Agreement and the Basic Documents and to administer the Trust in the
interest of the Certificateholders, subject to the Basic Documents and in
accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee hereunder or under any Basic
Document, and the Owner Trustee shall not be liable for the default or failure
of the Administrator to carry out its obligations under the Administration
Agreement.
Section
6.03.
Action Upon
Instruction.
(a) Subject
to Article IV,
Certificateholders evidencing more than 50% of the Certificate Balance may, by
written instruction, direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
13
(b) The
Owner Trustee shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is likely to result in liability
on the part of the Owner Trustee or is contrary to the terms hereof or of any
Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or any Basic Document, the
Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders requesting instruction as to
the course of action to be adopted, and to the extent the Owner Trustee acts in
good faith in accordance with any written instruction given by
Certificateholders evidencing more than 50% of the Certificate Balance, the
Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such shorter period of time
as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic Documents,
as it shall deem to be in the best interest of the Certificateholders, and shall
have no liability to any Person for such action or inaction.
(d) In
the event that the Owner Trustee is unsure as to the application of any
provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such action or
inaction.
Section
6.04.
No Duties Except as
Specified in This Agreement or in Instructions. The Owner
Trustee shall not have any duty or obligation to manage, make any payment with
respect to, register, record, sell, dispose of, or otherwise deal with the Owner
Trust Estate, or to otherwise take or refrain from taking any action under, or
in connection with, any document contemplated hereby to which the Owner Trustee
is a party, except as expressly provided by the terms of this Agreement or in
any document or written instruction received by the Owner Trustee pursuant to
Section 6.03;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee shall
have no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to prepare or file any
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its
own cost and expense, promptly take all action as may be necessary to discharge
any liens on any part of the Owner Trust Estate that result from actions by, or
claims against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
14
Section
6.05.
No Action Except under
Specified Documents or Instructions. The Owner Trustee shall
not manage, control, use, sell, dispose of or otherwise deal with any part of
the Owner Trust Estate except (i) in accordance with the powers granted to and
the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii)
in accordance with the Basic Documents and (iii) in accordance with any document
or instruction delivered to the Owner Trustee pursuant to Section 6.03.
Section
6.06.
Restrictions. The
Owner Trustee shall not take any action (a) that is inconsistent with the
purposes of the Trust set forth in Section 2.03 or
(b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust being treated as an association (or publicly traded partnership) taxable
as a corporation for federal income tax purposes. The Owner Trustee
and the Depositor agree that no election to treat the Trust as an association
(or publicly traded partnership) taxable as a corporation for United States
federal income tax purposes or any relevant state tax purposes shall be made by
or on behalf of the Trust. The Certificateholders shall not take, or
direct the Owner Trustee or the Depositor to take, action that would violate the
provisions of this Section.
ARTICLE
VII
CONCERNING THE OWNER
TRUSTEE
Section
7.01.
Acceptance of Trusts and
Duties. The Owner Trustee hereby accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to such trusts
but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all monies actually received by it constituting part of the
Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except (i) for
its own willful misconduct or negligence or (ii) in the case of the inaccuracy
of any representation or warranty contained in Section 7.03
expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the
Owner Trustee shall not be liable for any error of judgment made by a
responsible officer of the Owner Trustee;
(b) the
Owner Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in accordance with the written instructions of the Administrator
or the Certificateholders;
15
(c) no
provision of this Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability in
the performance of any of its rights or powers hereunder or under any Basic
Document, if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under
no circumstances shall the Owner Trustee be liable for indebtedness evidenced by
or arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(e) the
Owner Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Depositor
or for the form, character, genuineness, sufficiency, value or validity of any
of the Owner Trust Estate or for or in respect of the validity or sufficiency of
the Basic Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to the Certificateholders,
other than as expressly provided for herein and in the Basic
Documents;
(f) the
Owner Trustee shall not be liable for the default or misconduct of the
Administrator, the Indenture Trustee, the Swap Counterparty or the Servicer
under any of the Basic Documents or otherwise, and the Owner Trustee shall have
no obligation or liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be performed by the
Administrator under the Administration Agreement, the Indenture Trustee under
the Indenture, the Servicer under the Sale and Servicing Agreement or the Swap
Counterparty under the Interest Rate Swap Agreement; and
(g) the
Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement or
any Basic Document, at the request, order or direction of any Certificateholder,
unless such Certificateholder has offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of
the Owner Trustee to perform any discretionary act enumerated in this Agreement
or in any Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of any such act.
Section
7.02.
Furnishing of
Documents. The Owner Trustee shall furnish (a) to the
Certificateholders or the Administrator promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents and (b) to the Indenture Trustee
promptly upon written request therefor, copies of the Purchase Agreement, the
Sale and Servicing Agreement, the Administration Agreement and the Trust
Agreement.
Section
7.03.
Representations and
Warranties. The Owner Trustee hereby represents and warrants
to the Certificateholders that:
16
(a) It
is a banking association duly organized and validly existing in good standing
under the federal laws of the United States and satisfies the eligibility
criteria set forth in Section 10.01.
It has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It
has taken all corporate action necessary to authorize the execution and delivery
by it of this Agreement, and this Agreement has been executed and delivered by
one of its officers who is duly authorized to execute and deliver this Agreement
on its behalf.
(c) Neither
the execution nor the delivery by it of this Agreement, nor the consummation by
it of the transactions contemplated hereby nor compliance by it with any of the
terms or provisions hereof will contravene any federal or Delaware law,
governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound.
Section
7.04.
Reliance; Advice of
Counsel.
(a) The
Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In
the exercise or administration of the trusts hereunder and in the performance of
its duties and obligations under this Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents or attorneys pursuant
to agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the written opinion or advice of any such counsel,
accountants or other such persons.
Section
7.05.
Not Acting in Individual
Capacity. Except as provided in this Article VII and in
Article XII, in accepting the trusts hereby created, BNYM (Delaware) acts solely
as Owner Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof.
17
Section
7.06.
Owner Trustee Not Liable for
the Certificates, Notes or Receivables. The recitals contained
herein and in the Certificates (other than the signature and counter-signature
of the Owner Trustee on the Certificates and its representations and warranties
in Section 7.03 and
in Article XII) shall not be taken as the statements of the Owner Trustee and
the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, or of the Certificates (other than
the signature and countersignature of the Owner Trustee on the Certificates), or
the Notes or of any other Basic Document or of any Receivable or related
documents. The Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Equipment or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the payments to be distributed to the
Certificateholders under this Agreement or the Noteholders under the Indenture
or the Swap Counterparty under the Interest Rate Swap Agreement, including: the
existence, condition and ownership of any Financed Equipment; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of the
Administrator, the Indenture Trustee or the Servicer or any subservicer taken in
the name of the Owner Trustee.
Section
7.07.
Owner Trustee May Own the
Certificates and Notes. The Owner Trustee in its individual or
any other capacity may become the owner or pledgee of the Certificates or the
Notes and may deal with the Depositor, the Administrator, the Indenture Trustee
and the Servicer in banking transactions with the same rights as it would have
if it were not Owner Trustee.
ARTICLE
VIII
COMPENSATION OF OWNER
TRUSTEE
Section
8.01.
Owner Trustee's Fees and
Expenses. The Owner Trustee shall receive as compensation for
its services hereunder such fees as have been separately agreed upon before the
date hereof between the Depositor and the Owner Trustee, and the Owner Trustee
shall be entitled to be reimbursed by the Depositor for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder; provided, however, that the
Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 11.08.
Section
8.02.
Indemnification. The
Depositor shall be liable as primary obligor for, and shall indemnify the Owner
Trustee and its successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 7.01;
provided, however, that the
Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 11.08. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this
Agreement. In any event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Depositor, which approval
shall not be unreasonably withheld.
18
Section
8.03.
Payments to the Owner
Trustee. Any amounts paid to the Owner Trustee pursuant to
this Article VIII shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
ARTICLE
IX
TERMINATION OF TRUST
AGREEMENT
Section
9.01.
Termination of Trust
Agreement.
(a) This
Agreement (other than Article VIII and Section 11.08) and
the Trust shall terminate and be of no further force or effect, upon the final
distribution by the Owner Trustee of all monies or other property or proceeds of
the Owner Trust Estate in accordance with the terms of the Indenture, the Sale
and Servicing Agreement and Article V. Any money or other property
held as part of the Owner Trust Estate following such distribution shall be
distributed to the Depositor. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or the Trust, or (y) entitle the Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Owner Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Neither
the Depositor nor any Certificateholder shall be entitled to revoke or terminate
the Trust.
(c) Notice
of any termination of the Trust, specifying the Distribution Date upon which the
Certificateholders shall surrender the Certificates to the Paying Agent for
payment of the final distribution and cancellation, shall be given by the Owner
Trustee by letter to the Certificateholders mailed within five Business Days of
receipt of notice of such termination from the Servicer given pursuant to Section 9.01(c)
of the Sale and Servicing Agreement, stating (i) the Distribution Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of the Paying Agent therein specified. The Owner Trustee
shall give such notice to the Certificate Registrar (if other than the Owner
Trustee) and the Paying Agent at the time such notice is given to the
Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to the
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.02.
19
In the
event that a Certificateholder shall not surrender its Certificate for
cancellation within six months after the date specified in the above mentioned
written notice, the Owner Trustee shall give a second written notice to the
Certificateholder to surrender the Certificate for cancellation and receive the
final distribution with respect thereto. If within one year after the
second notice any Certificate shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the Certificateholder concerning surrender of the
Certificate, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositor.
(d) Upon
the winding up of the Trust and its termination, the Owner Trustee shall cause
the Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of
Section 3810 of the Statutory Trust Statute.
ARTICLE
X
SUCCESSOR OWNER TRUSTEES AND
ADDITIONAL OWNER TRUSTEES
Section
10.01.
Eligibility Requirements for
Owner Trustee. The Owner Trustee shall at all times be a
corporation satisfying the provisions of Section 3807(a) of the Statutory
Trust Statute; authorized to exercise corporate trust powers; having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authorities; and having (or having a parent
which has) a rating of at least "Baa3" by Moody's and at least "BBB-" by
Standard & Poor's. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
Section
10.02.
Resignation or Removal of
Owner Trustee. The Owner Trustee may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Certificateholders and the Administrator; provided, however, that such
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice of resignation,
the Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
20
If
at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 10.01
and shall fail to resign after written request therefor by the Depositor or the
Administrator, or if at any time the Owner Trustee shall be legally unable to
act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor or
the Administrator may remove the Owner Trustee. If the Depositor or
the Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and the Depositor shall pay all fees owed to
the outgoing Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 10.03
and payment of all fees and expenses owed to the outgoing Owner
Trustee. The Depositor shall provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
Section
10.03.
Successor Owner
Trustee. Any successor Owner Trustee appointed pursuant to
Section 10.02
shall execute, acknowledge and deliver to the Depositor, the Certificateholders
and to its predecessor Owner Trustee, with a copy thereof delivered to the
Administrator, an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements, monies, and other property held by it
under this Agreement; and the Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No
successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section,
the Depositor shall mail notice of the appointment of such successor Owner
Trustee to the Certificateholders, the Indenture Trustee, the Administrator, the
Noteholders and the Rating Agencies. If the Depositor shall fail to
mail such notice within 10 days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Depositor.
21
Section
10.04.
Merger or Consolidation of
Owner Trustee. Any corporation into which the Owner Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Owner Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall be
the successor of the Owner Trustee hereunder; provided such corporation shall be
eligible pursuant to Section 10.01,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto; anything herein to the contrary notwithstanding;
provided, further, that the
Owner Trustee shall mail notice of such merger or consolidation to the Rating
Agencies and the Administrator.
Section
10.05.
Appointment of Co-Trustee or
Separate Trustee. Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Owner Trust Estate or any Financed
Equipment may at the time be located, the Depositor and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or separate trustee, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Owner Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Depositor and the Owner Trustee may consider necessary or
desirable. If the Depositor shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Owner Trustee
alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.01
and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties, and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without the
Owner Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular acts are to be performed, the Owner
Trustee shall be incompetent or unqualified to perform such acts, in which event
such rights, powers, duties, and obligations (including the holding of title to
the Owner Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no
trustee under this Agreement shall be personally liable by reason of any act or
omission of any other trustee under this Agreement; and
22
(iii) the
Depositor and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Depositor, the Certificateholders
and the Administrator.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE
XI
MISCELLANEOUS
Section
11.01.
Supplements and
Amendments. This Agreement may be amended by the Depositor and
the Owner Trustee, with prior written notice to the Rating Agencies, without the
consent of any of the Noteholders or the Certificateholders to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions in this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that such
amendment shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Noteholder or the Certificateholders
or the federal tax characteristics of the Notes.
This
Agreement may also be amended from time to time by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies, with the consent of
the holders of Notes evidencing not less than a majority of the Outstanding
Principal Amount of the Notes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Principal Amount of the Notes or the Certificates required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
23
Notwithstanding
the foregoing, no amendment to this Agreement shall materially and adversely
affect the rights or obligations of the Swap Counterparty under this Agreement
unless the Swap Counterparty shall have consented in writing to such amendment
(and such consent shall be deemed to have been given if the Swap Counterparty
does not object in writing within ten (10) Business Days after receipt of a
written request for such consent).
Promptly
after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent to
the Indenture Trustee, the Administrator, the Swap Counterparty and each of the
Rating Agencies.
It
shall not be necessary for the consent of the Noteholders, the
Certificateholders or the Indenture Trustee pursuant to this Section to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
No
amendment to this Agreement shall affect the rights or duties of the
Administrator without the consent of the Administrator.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior
to the execution of any amendment to this Agreement or any other Basic Document,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the other Basic Documents. The Owner Trustee may, but
shall not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section
11.02.
No Legal Title to Owner
Trust Estate in the Owner. No Certificateholder shall have
legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their ownership interest therein only in accordance with Articles V and
IX. No
transfer, by operation of law or otherwise, of any right, title, and interest of
a Certificateholder to and in its ownership interest in the Trust shall operate
to terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
Section
11.03.
Limitations on Rights of
Others. The provisions of this Agreement are solely for the
benefit of the Owner Trustee, the Depositor, the Certificateholders, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee, the Swap Counterparty and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Owner Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section
11.04.
Notices. (a)
Unless otherwise expressly specified or permitted by the terms hereof, all
notices shall be in writing and shall be deemed given upon receipt by the
intended recipient if to the Owner Trustee, addressed to the Corporate Trust
Office; if to the Depositor, addressed to Caterpillar Financial Funding
Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000; if to
the Administrator, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000 or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party.
24
(b) Any
notice required or permitted to be given to the Certificateholders shall be
given by first-class mail, postage prepaid, at the address of such
Certificateholders as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not a Certificateholder receives
such notice.
Section
11.05.
Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section
11.06.
Separate
Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section
11.07.
Successors and
Assigns. All covenants and agreements contained herein shall
be binding upon, and inure to the benefit of, the Depositor, the Owner Trustee
and its successors and the Certificateholders and their successors and permitted
assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Certificateholders shall
bind the successors and assigns of the Certificateholders.
Section
11.08.
No
Petition. Notwithstanding any prior termination of this
Agreement, the Owner Trustee, each Certificateholder (to the extent it is not
the Depositor), by accepting a Certificate, and the Indenture Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenant and
agree that they will not, prior to the date which is one year and one day after
the termination of the Issuing Entity, institute against the Depositor or the
Issuing Entity, or join in any institution against the Depositor or the Issuing
Entity of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law.
Section
11.09.
No
Recourse. Each Certificateholder by accepting a Certificate
acknowledges that the Certificate represents a beneficial interest in the Trust
only and does not represent an interest in or obligation of the Depositor, the
Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof, and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Certificates or the other Basic Documents.
Section
11.10. Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
25
Section
11.11.
GOVERNING
LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
11.12.
Certificate Transfer
Restrictions.
(a) The
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to the provisions of
Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code)
that is subject to Section 4975 of the Code, or (iii) any entity whose
underlying assets include "plan assets" by reason of any such plan's investment
in the entity and the application of U.S. Department of Labor (the "DOL")
Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA (the "Plan
Asset Regulation") (excluding any investment company that is registered under
the Investment Company Act of 1940, as amended) (each, a "Benefit Plan
Investor"), except as provided in the following sentence. By
accepting and holding a Certificate, each Certificateholder shall be deemed to
have represented, warranted and covenanted that (A) it is not a Benefit Plan
Investor, and that no assets of any Benefit Plan Investor were used to acquire
the Certificate, or (B) it is an insurance company acting on behalf of its
general account, and (i) on the date it acquires the Certificate, less than 25%
of the assets of such general account constitute Plan Assets and (ii) if at any
time during any calendar quarter after the initial acquisition of the
Certificate, 25% or more of the assets of such general account constitute "plan
assets" (as defined in the Plan Asset Regulation) and no exemption or exception
from the prohibited transaction rules applies to the continued holding of the
Certificate under Section 401(c) of ERISA and final regulations thereunder or an
exemption or regulation issued by the DOL under ERISA, then such insurance
company will dispose of the Certificates then held in its general account by the
end of the next following calendar quarter, and shall deliver to the Owner
Trustee at the time of acquisition of the Certificates a duly executed
Certificateholder Certification in the form set forth in Exhibit
C.
(b) The
Certificates may not be acquired or held by or for the account of an individual
or entity that is not a U.S. person as defined in Section 7701(a)(30) of the
Code. By accepting and holding a Certificate, each Certificateholder
shall be deemed to have represented and warranted under penalties of perjury
that it (or, if it is acting as a nominee, the beneficial owner) is and, as long
as it may be a Certificateholder, will remain a U.S. person and shall deliver to
the Owner Trustee, at the time of acquisition of the Certificate and thereafter
from time to time upon request, a duly executed Certificateholder Certification
in the form set forth in Exhibit C.
Section
11.13.
Depositor Payment
Obligation. The Depositor shall be responsible for payment of
the Administrator's fees under the Administration Agreement (to the extent not
paid pursuant to Section 5.05 of
the Sale and Servicing Agreement) and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder.
26
ARTICLE
XII
REGULATION AB
COMPLIANCE
Section
12.01.
Intent of the Parties;
Reasonableness. The Depositor and the Owner Trustee
acknowledge and agree that the purpose of this Article XII is to facilitate
compliance by the Issuing Entity and the Depositor with the provisions of
Regulation AB and related rules and regulations of the
Commission. Neither the Issuing Entity nor the Depositor shall
exercise its right to request delivery of information or other performance under
these provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of the
Commission under the Securities Act and the Exchange Act. The Owner
Trustee acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation
AB. The Owner Trustee shall cooperate fully with the Issuing Entity
and the Depositor to deliver to the Issuing Entity and the Depositor any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Issuing Entity or the Depositor to permit
the Issuing Entity or the Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Owner Trustee and the Notes
reasonably believed by the Issuing Entity or the Depositor to be necessary in
order to effect such compliance.
Section
12.02.
Additional Representation
and Warranty of the Owner Trustee. The Owner Trustee
hereby represents and warrants to the Issuing Entity and to the Depositor that
the information set forth under the caption "Formation of the Issuing
Entity – The Owner Trustee" in the Preliminary Prospectus Supplement dated April
22, 2008 and the final Prospectus Supplement dated April 22, 2008 relating to
the Notes (i) does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and (ii) includes all information required to be
included therein with respect to the Owner Trustee under Regulation
AB.
Section
12.03.
Information to Be Provided
by the Owner Trustee. For the purpose of
satisfying the reporting obligations of the Issuing Entity under the Exchange
Act with respect to the Notes, for so long as the Issuing Entity is required to
file reports under the Exchange Act with respect to the Notes, the Owner Trustee
shall (i) notify the Issuing Entity and the Depositor in writing of (A) any
material litigation or governmental proceedings pending against the Owner
Trustee, (B) any affiliations or relationships that develop following the
date hereof between the Owner Trustee and any Transaction Party that are
required to be disclosed under Item 1119(a) of Regulation AB, and (C) any change
in control or sale of substantially all the assets of the Owner Trustee, and
(ii) provide to the Issuing Entity and the Depositor a written description of
such litigation proceedings, affiliations, relationships or corporate
changes.
[Signature
Page Follows]
27
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the date
first above written.
BNYM
(DELAWARE),
not
in its individual capacity but solely as Owner Trustee,
By:
/s/ Xxxxxxxx X.
Xxxxx
Name: Xxxxxxxx
X. Xxxxx
Title: Vice
President
CATERPILLAR
FINANCIAL FUNDING CORPORATION, as Depositor,
By:/s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title: Treasurer
Amended
and Restated Trust Agreement
EXHIBIT
A
FORM OF
CERTIFICATE
|
Number
R-1
|
$33,387,349
|
SEE
REVERSE FOR CERTAIN DEFINITIONS
THIS
CERTIFICATE IS ONLY TRANSFERABLE IN WHOLE AND IS SUBJECT TO RESTRICTIONS ON
TRANSFER SET FORTH IN THE TRUST AGREEMENT
THIS
CERTIFICATE HAS NOT BEEN REGISTERED AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR DELIVERED UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT.
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF
ERISA, (ii) A PLAN (AS DEFINED IN SECTION 4975(e)(1) OF THE CODE) THAT IS
SUBJECT TO SECTION 4975 OF THE CODE, OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE "PLAN ASSETS" BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY AND
THE APPLICATION OF U.S. DEPARTMENT OF LABOR (THE "DOL") REGULATION SECTION
2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA (THE "PLAN ASSET REGULATION")
(EXCLUDING ANY INVESTMENT COMPANY THAT IS REGISTERED UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED) (EACH, A "BENEFIT PLAN INVESTOR"), EXCEPT AS
PROVIDED IN THE FOLLOWING SENTENCE. BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED
AND COVENANTED THAT (A) IT IS NOT A BENEFIT PLAN INVESTOR, AND THAT NO ASSETS OF
ANY BENEFIT PLAN INVESTOR WERE USED TO ACQUIRE THIS CERTIFICATE, OR (B) IT IS AN
INSURANCE COMPANY ACTING ON BEHALF OF ITS GENERAL ACCOUNT, AND (i) ON THE DATE
IT ACQUIRES THIS CERTIFICATE, LESS THAN 25% OF THE ASSETS OF SUCH GENERAL
ACCOUNT CONSTITUTE PLAN ASSETS AND (ii) IF AT ANY TIME DURING ANY CALENDAR
QUARTER AFTER THE INITIAL ACQUISITION OF THIS CERTIFICATE, 25% OR MORE OF THE
ASSETS OF SUCH GENERAL ACCOUNT CONSTITUTE "PLAN ASSETS" (AS DEFINED IN THE PLAN
ASSET REGULATION) AND NO EXEMPTION OR EXCEPTION FROM THE PROHIBITED TRANSACTION
RULES APPLIES TO THE CONTINUED HOLDING OF THIS CERTIFICATE UNDER SECTION 401(c)
OF ERISA AND FINAL REGULATIONS THEREUNDER OR AN EXEMPTION OR REGULATION ISSUED
BY THE DOL UNDER ERISA, THEN SUCH INSURANCE COMPANY WILL DISPOSE OF THIS
CERTIFICATE BY THE END OF THE NEXT FOLLOWING CALENDAR QUARTER, AND SHALL DELIVER
TO THE OWNER TRUSTEE AT THE TIME OF ACQUISITION OF THIS CERTIFICATE A DULY
EXECUTED CERTIFICATEHOLDER CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT C TO
THE TRUST AGREEMENT REFERRED TO HEREIN.
A-1
THIS
CERTIFICATE MAY NOT BE ACQUIRED OR HELD BY OR FOR THE ACCOUNT OF AN INDIVIDUAL
OR ENTITY THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION 7701(a)(30) OF THE
CODE. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF IT IS ACTING AS A
NOMINEE, THE BENEFICIAL OWNER) IS AND, AS LONG AS IT MAY BE A HOLDER (OR
BENEFICIAL OWNER), WILL REMAIN A U.S. PERSON AND SHALL DELIVER TO THE OWNER
TRUSTEE, AT THE TIME OF ACQUISITION OF THIS CERTIFICATE AND THEREAFTER FROM TIME
TO TIME UPON REQUEST, A DULY EXECUTED CERTIFICATION IN THE FORM SET FORTH IN
EXHIBIT C TO THE TRUST AGREEMENT.
THE
CERTIFICATE BALANCE OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS SET
FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
A-2
CATERPILLAR
FINANCIAL ASSET TRUST 2008-A
ASSET
BACKED CERTIFICATE
evidencing
an undivided beneficial interest in the Trust, as defined below, the property of
which includes a pool of retail installment sale contracts and finance leases
secured by new and used machinery and certain monies due or received thereunder
and sold to the Trust (as defined below) by Caterpillar Financial Funding
Corporation.
(This
Certificate does not represent an interest in or obligation of Caterpillar
Financial Funding Corporation, Caterpillar Financial Services Corporation,
Caterpillar Inc. or any of their respective affiliates, except to the extent
described below.)
THIS
CERTIFIES THAT ______________________________________ is the registered holder
of ______________________________________ DOLLARS ($__) nonassessable,
fully-paid, undivided beneficial interest in Caterpillar Financial Asset Trust
2008-A (the "Trust") formed by Caterpillar Financial Funding Corporation, a
Nevada corporation (the "Depositor").
The
Trust was created in connection with an Amended and Restated Trust Agreement,
dated as of April 29, 2008 (the "Trust Agreement"), between the Depositor and
BNYM (Delaware), as trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement or the Sale and Servicing Agreement,
dated as of April 1, 2008 (the "Sale and Servicing Agreement"), among the Trust,
the Depositor and Caterpillar Financial Services Corporation, as servicer (the
"Servicer"), as applicable.
This
Certificate is the duly authorized Certificate designated as the "Asset Backed
Certificate" (herein called the "Certificate"). Also issued under the
Indenture, dated as of April 1, 2008, between the Trust and U.S. Bank National
Association, as trustee (the "Indenture Trustee"), are Notes designated as
"Class A-1 3.00500% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2a
4.09% Asset Backed Notes" (the "Class A-2a Notes"), "Class A-2b Floating Rate
Asset Backed Notes" (the "Class A-2b Notes" and, together with the Class A-2a
Notes, the "Class A-2 Notes") and "Class A-3 4.94% Asset Backed Notes" (the
"Class A-3 Notes" and, together with the Class A-1 Notes and the Class A-2
Notes, the "Notes"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust
includes a pool of retail installment sale contracts and finance leases secured
by new and used equipment (the "Receivables"), all monies received on or after
April 1, 2008 from payments on the Receivables, security interests in the
equipment financed thereby and certain other cross-collateralized equipment,
certain bank accounts and the proceeds thereof, proceeds from claims on certain
insurance policies and certain other rights under the Trust Agreement and the
Sale and Servicing Agreement, all right, title, and interest of the Depositor in
and to the Purchase Agreement dated as of April 1, 2008 between Caterpillar
Financial Services Corporation and the Depositor and all proceeds of the
foregoing. The holder of this Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
A-3
Under
the Trust Agreement, there will be distributed on the 25th day of each month or,
if such day is not a Business Day, the next Business Day (the "Distribution
Date"), commencing on May 27, 2008 to the Person in whose name this Certificate
is registered at the close of business on the last calendar day of the month
preceding the month in which such Distribution Date occurs (the "Record Date")
the amount to be distributed to the Certificateholder on such Distribution
Date.
Notwithstanding
any prior termination of the Trust Agreement, the Certificateholder (to the
extent it is not the Depositor), by its acceptance of this Certificate,
covenants and agrees that it shall not, prior to the date which is one year and
one day after the termination of the Trust, institute against the Depositor or
the Issuing Entity, or join in any institution against the Depositor or the
Issuing Entity of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the Owner
Trustee by wire transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for the purpose
by the Owner Trustee in the Borough of Manhattan, The City of New
York.
This
Certificate does not represent an obligation of, or an interest in, the
Depositor, the Servicer, Caterpillar Inc., Caterpillar Financial Services
Corporation, the Owner Trustee or any Affiliates of any of them and no recourse
may be had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement or the Basic
Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Receivables (and certain other amounts),
all as more specifically set forth herein and in the Sale and Servicing
Agreement and the Trust Agreement. A copy of each of the Sale and
Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Depositor, and at such other
places, if any, designated by the Depositor, by the Certificateholder upon
written request.
The
Trust Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor and
the Owner Trustee and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee with the consent of
the holders of the Notes evidencing a majority of the outstanding
Notes.
As
provided in the Trust Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies of the Certificate Registrar maintained by the Owner Trustee
in the Borough of Manhattan, in the City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing and a duly executed Certificateholder
Certification of the transferee thereof, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
beneficial interest in the Trust will be issued to the designated
transferee. No service charge will be made for any such registration
of transfer, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable in
connection therewith. The initial Certificate Registrar appointed
under the Trust Agreement is BNYM (Delaware).
A-4
The
Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate upon the payment to the Certificateholder of all
amounts required to be paid to it pursuant to the Trust Agreement and the Sale
and Servicing Agreement and the disposition of all property held as part of the
Trust. The Servicer of the Receivables may at its option purchase the corpus of
the Trust at a price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust will effect early
retirement of the Certificates; provided, however, such right
of purchase is exercisable only on any Distribution Date on which the Note Value
is 10% or less of the Initial Note Value.
This
Certificate may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")) that is subject to the provisions of Title I of
ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code) that is
subject to Section 4975 of the Code, or (iii) any entity whose underlying assets
include "plan assets" by reason of any such plan's investment in the entity and
the application of U.S. Department of Labor (the "DOL") Regulation Section
2510.3-101, as modified by Section 3(42) of ERISA (the "Plan Asset Regulation")
(excluding any investment company that is registered under the Investment
Company Act of 1940, as amended) (each, a "Benefit Plan Investor"), except as
provided in the following sentence. By accepting and holding this
Certificate, the holder thereof shall be deemed to have represented, warranted
and covenanted that (A) it is not a Benefit Plan Investor, and that no assets of
any Benefit Plan Investor were used to acquire this Certificate, or (B) it is an
insurance company acting on behalf of its general account, and (i) on the date
it acquires this Certificate, less than 25% of the assets of such general
account constitute Plan Assets and (ii) if at any time during any calendar
quarter after the initial acquisition of this Certificate, 25% or more of the
assets of such general account constitute "plan assets" (as defined in the Plan
Asset Regulation) and no exemption or exception from the prohibited transaction
rules applies to the continued holding of this Certificate under Section 401(c)
of ERISA and final regulations thereunder or an exemption or regulation issued
by the DOL under ERISA, then such insurance company will dispose of this
Certificate by the end of the next following calendar quarter, and shall deliver
to the Owner Trustee at the time of acquisition of this Certificate a duly
executed Certificateholder Certification in the form set forth in Exhibit C to the
Trust Agreement.
A-5
This
Certificate may not be acquired or held by or for the account of an individual
or entity that is not a U.S. person as defined in Section 7701(a)(30) of the
Code. By accepting and holding this Certificate, the holder shall be
deemed to have represented and warranted under penalties of perjury that it (or,
if it is acting as a nominee, the beneficial owner) is and, as long as it may be
a Certificateholder (or beneficial owner), will remain a U.S. person and shall
deliver to the Owner Trustee, at the time of acquisition of this Certificate and
thereafter from time to time upon request, a duly executed Certificateholder
Certification in the form set forth in Exhibit C to the
Trust Agreement.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Sale and Servicing Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
A-6
IN
WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
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CATERPILLAR
FINANCIAL ASSET TRUST 2008-A,
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|
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By: BNYM
(DELAWARE), as Owner Trustee
|
Dated: __________ By:________________________________________
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
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BNYM
(DELAWARE), as Owner Trustee
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or
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BNYM
(DELAWARE), as Owner Trustee
|
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ByBNYM
(DELAWARE), as Authenticating Agent
|
||
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By: _____________________________________
Authorized
Signatory
|
By: ___________________________________
Authorized
Signatory
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A-7
ASSIGNMENT
FOR
VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE
INSERT SOCIAL SECURITY
OR
OTHER IDENTIFYING NUMBER
OF
ASSIGNEE
____________________________________________________________________________
(Please
print or type name and address, including postal zip code, of
assignee)
____________________________________________________________________________
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________________________
attorney to transfer said Certificate on the books of the Certificate Register,
with full power of substitution in the premises.
Dated: _________________________________________*
Signature Guaranteed:
_________________________________________*
____________________
* NOTICE: The
signature to this assignment must correspond with the name as it appears upon
the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever.
A-8
EXHIBIT
B
CERTIFICATE OF TRUST
OF
CATERPILLAR FINANCIAL ASSET
TRUST 2008-A
THIS
Certificate of Trust of Caterpillar Financial Asset Trust 2008-A (the "Trust")
is being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. § 3801 et seq.) (the "Act").
Name. The
name of the statutory trust formed by this Certificate of Trust is Caterpillar
Financial Asset Trust 2008-A.
Delaware
Trustee. The name and business address of the trustee of the Trust in
the State of Delaware are BNYM (Delaware), 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 Attention: Corporate Trust Administration.
Effective
Date. This Certificate of Trust shall be effective upon
filing.
IN
WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust in
accordance with Section 3811(a)(1) of the Act.
BNYM
(DELAWARE), not in its individual capacity but solely as Trustee
By:_________________________________
Name:
Title:
B-1
EXHIBIT
C
CERTIFICATEHOLDER
CERTIFICATION
This
Certificateholder Certification ("Certification") is delivered pursuant to Section 11.12(b) of
Caterpillar Financial Asset Trust 2008-A Amended and Restated Trust Agreement,
dated as of April 29, 2008 (the "Trust Agreement"), between Caterpillar
Financial Funding Corporation and BNYM (Delaware), as Owner Trustee, in
connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner (the "Beneficial Owner"), or nominee on
behalf of the Beneficial Owner, of the Caterpillar Financial Asset Trust 2008-A
Asset Backed Certificate (the "Certificate"). Capitalized terms used
but not defined in this Certification have the respective meanings given them in
the Trust Agreement.
The
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III of Section A.
Section
A. To confirm to the Trust that the provisions of the Internal
Revenue Code relating to withholding tax do not apply in respect of the
Certificate held by the undersigned, the undersigned hereby
certifies:
Part
I - Complete Either A or B
A. Individual
as Beneficial Owner
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|
1.
|
I
am (The Beneficial Owner is) not a non-resident alien for purposes of U.S.
income taxation;
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|
|
2.
|
My
(The Beneficial Owner's) name and home address
are
|
_____________________________________________
_____________________________________________
_____________________________________________;
and
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3.
|
My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
______________________.
|
B. Corporate,
Partnership or other Entity as Beneficial Owner
|
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1.
|
________________________________
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined
in the Code and Treasury
regulations);
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C-1
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2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
_________________________________________
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_________________________________________;
and
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3.
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The
Beneficial Owner's U.S. employer identification number (Social Security
Number) is _______________.
|
Part
II - Nominees
If
the undersigned is the nominee for the Beneficial Owner, the undersigned
certifies that this Certification has been made in reliance upon information
contained in:
_________
an IRS Form W-9
_________
a form such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with change in Beneficial
Owners, the undersigned agrees to submit a new Certification of Non-Foreign
Status to the Trust promptly after such change.
Part
III - Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify the
Trust within sixty (60) days of the date that the Beneficial Owner becomes a
foreign person. The undersigned understands that this Certification
may be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or
both.
C-2
Under
penalty of perjury, I declare that I have examined this Certification and to the
best of my knowledge and belief it is true, correct and complete and, if
applicable, I further declare that I have the authority* to sign this
document
________________________________________________________________
Name
________________________________________________________________
Title (if applicable)
________________________________________________________________
Signature and Date
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*NOTE:
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If
signed pursuant to a power of attorney, the power of attorney must
accompany this Certification.
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THE
CERTIFICATION CONTAINED IN THIS SECTION A WILL BECOME OBSOLETE AT THE END OF THE
THIRD YEAR AFTER THE TAXABLE YEAR OF THE TRUST DURING WHICH THIS CERTIFICATION
IS DELIVERED TO THE TRUST.
Section
B. The undersigned hereby certifies that (check
one):
1. o
no assets of any Benefit
Plan Investor were used to acquire the Certificate.
OR
2.
o
I am an insurance company,
acting on behalf of my general account, and
a. on
the date I acquired the Certificate, less than 25% of the assets of my general
account constituted Plan Assets, and
b. if,
at any time during any calendar quarter after the initial acquisition of the
Certificate, 25% or more of the assets of such general account constitute "plan
assets" (as defined in the Plan Asset Regulation) and no exemption or exception
from the prohibited transaction rules applies to the continued holding of the
Certificate under Section 401(c) of ERISA and final regulations thereunder or an
exemption or regulation issued by the DOL under ERISA, then I will dispose of
the Certificate then held in my general account by the end of the next following
calendar quarter and shall deliver to the Owner Trustee at the time of
acquisition of the Certificate a duly executed Certificateholder Certification
in the form set forth in this exhibit.
I
declare that I have examined this Certification and to the best of my knowledge
and belief it is true, correct and complete and, if applicable, I further
declare that I have the authority* to sign this document
C-3
________________________________________________________________
Name
________________________________________________________________
Title (if applicable)
________________________________________________________________
Signature and Date
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*NOTE:
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If
signed pursuant to a power of attorney, the power of attorney must
accompany this Certification.
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C-4
