EXHIBIT 4.2
FORM OF TRUST AGREEMENT
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CATERPILLAR FINANCIAL ASSET TRUST [____]-[__]
AMENDED AND RESTATED TRUST AGREEMENT
between
CATERPILLAR FINANCIAL FUNDING CORPORATION,
as Seller
and
[____________________]
as Owner Trustee
Dated as of [___________________]
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms........................................ 1
SECTION 1.02. Other Definitional Provisions............................ 3
ARTICLE II
ORGANIZATION
SECTION 2.01. Name..................................................... 4
SECTION 2.02. Office................................................... 4
SECTION 2.03. Purpose and Powers....................................... 4
SECTION 2.04. Appointment of Owner Trustee............................. 5
SECTION 2.05. Initial Capital Contribution of Trust Estate............. 5
SECTION 2.06. Declaration of Trust..................................... 5
SECTION 2.07. Liability of Owners...................................... 6
SECTION 2.08. Title to Trust Property.................................. 6
SECTION 2.09. Situs of Trust........................................... 6
SECTION 2.10. Representations and Warranties of Seller................. 6
SECTION 2.11. Gross Income and Loss Allocations........................ 7
SECTION 2.12. Reserved................................................. 8
SECTION 2.13. Special Allocations...................................... 8
SECTION 2.14. Liquidating Profit or Loss............................... 9
SECTION 2.15. Tax Allocations.......................................... 9
SECTION 2.16. Amended and Restated Trust Agreement..................... 9
SECTION 2.17. Required Net Worth....................................... 9
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. Initial Ownership........................................ 9
SECTION 3.02. Form of Certificates..................................... 9
SECTION 3.03. Authentication of Certificates........................... 10
SECTION 3.04. Registration of Transfer and Exchange of
Certificates......................................... 10
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SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificates........ 11
SECTION 3.06. Persons Deemed Owners.................................... 11
SECTION 3.07. Access to List of Certificateholders' Names and
Addresses............................................ 11
SECTION 3.08. Maintenance of Office or Agency.......................... 12
SECTION 3.09. Appointment of Paying Agents............................. 12
SECTION 3.11. Statements to Certificateholders......................... 13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Owners with Respect to Certain
Matters.............................................. 13
SECTION 4.02. Action By Owners with Respect to Certain Matters......... 13
SECTION 4.03. Action By Owners with Respect to Bankruptcy.............. 14
SECTION 4.04. Restrictions on Owners' Power............................ 14
SECTION 4.05. Majority Control......................................... 14
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. Establishment of Trust Account........................... 14
SECTION 5.02. Application of Trust Funds............................... 15
SECTION 5.03. Method of Payment........................................ 15
SECTION 5.04. No Segregation of Monies; No Interest.................... 15
SECTION 5.05. Accounting and Report to the Noteholders, Owners,
the Internal Revenue Service and Others.................. 15
SECTION 5.06. Signature on Returns; Tax Matters Partner................ 16
SECTION 5.07. Capital Accounts......................................... 16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. General Authority........................................ 17
SECTION 6.02. General Duties........................................... 17
SECTION 6.03. Action Upon Instruction.................................. 17
SECTION 6.04. No Duties Except as Specified in This Agreement or in
Instructions......................................... 18
SECTION 6.05. No Action Except under Specified Documents or
Instructions......................................... 19
SECTION 6.06. Restrictions............................................. 19
ARTICLE VII
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CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties.......................... 19
SECTION 7.02. Furnishing of Documents.................................. 20
SECTION 7.03. Representations and Warranties........................... 20
SECTION 7.04. Reliance; Advice of Counsel.............................. 21
SECTION 7.05. Not Acting in Individual Capacity........................ 21
SECTION 7.06. Owner Trustee Not Liable for Certificates, Notes or
Receivables.......................................... 21
SECTION 7.07. Owner Trustee May Own Certificates and Notes............. 22
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. Owner Trustee's Fees and Expenses........................ 22
SECTION 8.02. Indemnification.......................................... 22
SECTION 8.03. Payments to the Owner Trustee............................ 23
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination of Trust Agreement........................... 23
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. Eligibility Requirements for Owner Trustee.............. 24
SECTION 10.02. Resignation or Removal of Owner Trustee................. 24
SECTION 10.03. Successor Owner Trustee................................. 25
SECTION 10.04. Merger or Consolidation of Owner Trustee................ 25
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee........... 26
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Supplements and Amendments.............................. 27
SECTION 11.02. No Legal Title to Owner Trust Estate in Owners.......... 28
SECTION 11.03. Limitations on Rights of Others......................... 28
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SECTION 11.04. Notices................................................. 28
SECTION 11.05. Severability............................................ 29
SECTION 11.06. Separate Counterparts................................... 29
SECTION 11.07. Successors and Assigns.................................. 29
SECTION 11.08. Covenant of the Seller.................................. 29
SECTION 11.09. No Petition............................................. 30
SECTION 11.10. No Recourse............................................. 30
SECTION 11.11. Headings................................................ 30
SECTION 11.12. GOVERNING LAW........................................... 30
SECTION 11.13. Certificate Transfer Restrictions....................... 30
SECTION 11.14. Seller Payment Obligation............................... 31
EXHIBITS
EXHIBIT A FORM OF CERTIFICATE......................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST.............................B-1
EXHIBIT C CERTIFICATEHOLDER CERTIFICATION..........................C-1
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AMENDED AND RESTATED TRUST AGREEMENT dated as of [________________],
between CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as
Seller, and [____________________], as Owner 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
[____________________], among the Administrator, the Trust, the Seller 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" shall mean this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the Depository
Agreement, the Custodial Agreement, the Notes, the Certificates and the other
documents and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in SECTION
11.13.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to
time.
"Capital Accounts" shall have the meaning set forth in SECTION 5.07 hereof.
"Certificate" shall mean a certificate evidencing the beneficial interest
of an Owner in the Trust, substantially in the form attached hereto as Exhibit
A.
"Certificate Distribution Account" shall have the meaning assigned to such
term in SECTION 5.01.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B which has been filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the register
mentioned and the registrar appointed pursuant to SECTION 3.04.
"Certificateholder Certification" shall mean a certification with respect
to non-foreign status and Benefit Plan status in the form of EXHIBIT C hereto.
"Certificateholder" or "Holder" shall mean a Person in whose name a
Certificate is registered.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at
[____________________________]; or at such other address as the Owner Trustee
may designate by notice to the Owners and the Seller, or the principal corporate
trust office of any successor Owner Trustee (the address of which the successor
owner trustee will notify the Owners and the Seller).
"Indenture Trustee" shall mean [____________________], not in its
individual capacity but solely as Indenture Trustee under the Indenture, and any
successor Indenture Trustee under the Indenture.
"Seller" shall mean Caterpillar Financial Funding Corporation in its
capacity as Seller hereunder.
"Depository Agreement" means the agreement among the Trust, the Indenture
Trustee, the Administrator and The Depository Trust Company, dated as of the
Closing Date, substantially in the form of EXHIBIT C to the Indenture.
"Expenses" shall have the meaning assigned to such term in SECTION 8.02.
"Liquidating Distribution" means the amount of any distribution to Owners
and the Seller in connection with the termination of the Trust under SECTION
9.01(A) of this Agreement.
"Liquidating Profit or Loss" means the Profit or Loss determined with
respect to the transactions associated with a final distribution described in
SECTION 9.01(A) of this Agreement.
"Owner" shall mean each Holder of a Certificate.
"Owner Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust 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 Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Owner Trustee" shall mean [____________________], a [__________], not in
its individual capacity but solely as owner trustee under this Agreement, and
any successor Owner Trustee hereunder.
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"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to SECTION 3.09 and shall initially be [____________________].
"Profits" and "Losses" mean, for each calendar month or other period, an
amount equal to the Trust's taxable income or loss for such period, other than
Liquidating Profit or Loss, determined in accordance with Code section 703(a)
(such taxable income or loss to include all items of income, gain, loss or
deduction required to be stated separately pursuant to Code section 703(a)(1)),
adjusted to reflect items of income exempt from federal income tax and items of
expenditure described in Code section 705(a)(2)(B) (or treated as so described
pursuant to Treasury Regulations).
"Record Date" shall mean, with respect to any Distribution Date, the close
of business on the last calendar day of the month preceding the month in which
such Distribution Date occurs.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
among the Trust, the Seller, as seller, and Caterpillar Financial Services
Corporation, as servicer, dated as of [____________________], as the same may be
amended, modified or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Treasury Regulations" shall mean 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" shall mean the trust established by this Agreement.
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.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles,
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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."
(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.
(f) All calculations of the amount of interest accrued on the Certificates
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE II
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as
"Caterpillar Financial Asset Trust [___________]-[_]," 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 ▇▇▇ 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
Owners and the Seller.
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, Class A-2 Notes[,] [and] the Class
A-3 Notes [and the Class B Notes] pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell $[____________]
aggregate principal amount of the Class A-1 Notes, $[____________]
aggregate principal amount of Class A-2 Notes[,] [and] $[____________]
aggregate principal amount of the Class A-3 Notes [and $[_________]
aggregate principal amount of Class B Notes] to
[________________________________] upon the written order of the Seller and
[sell] [issue] $[____________] aggregate principal amount of the
Certificates to [____________________] [the Seller] upon the written order
of the Seller;
(ii) with the proceeds of the sale of the Notes and the Certificates,
to pay the Seller the amounts owed pursuant to Section 2.01 of the Sale and
Servicing Agreement,
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by directing [____________________] as representative of the Seller to wire
transfer such proceeds in accordance with instructions received from the
Seller;
(iii) with the proceeds from capital contributions from the Seller
to pay the organizational, start-up and transactional expenses of the
Trust, and with the proceeds from the sale of the Notes and Certificates,
to fund the Reserve Account;
(iv) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Owners pursuant to the terms of the Sale and Servicing Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) 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; 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 Owners 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 Seller 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. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Seller, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The Seller 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 Owners, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, for income
and franchise tax purposes, the Trust shall be treated as a partnership. The
parties agree that, unless otherwise
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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 partnership 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 Business Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.07. LIABILITY OF OWNERS. No Owner shall 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 a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/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 SELLER. The Seller hereby
represents and warrants to the Owner Trustee that:
(a) The Seller 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 Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the failure to so qualify or to
obtain such license or approval would render any Receivable unenforceable
that would otherwise be enforceable by the Seller, the Servicer or the
Owner Trustee.
(c) The Seller has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Seller has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust and the Seller 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 Seller by all necessary corporate action.
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(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 Seller, or any indenture, agreement or
other instrument to which the Seller is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(e) There are no proceedings or investigations pending, or, to the
best of Seller's knowledge, threatened, before any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties which
(i) assert the invalidity of this Agreement 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 Seller of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents.
SECTION 2.11. GROSS INCOME AND LOSS ALLOCATIONS. After giving effect to
special allocations set forth in SECTION 2.13 of this Agreement and for purposes
of maintaining Capital Accounts under SECTION 5.07 of this Agreement, gross
income of the Trust for any calendar month as determined for Federal income tax
purposes shall be allocated as follows:
(a) first, among the Owners as of the close of the last day of such
calendar month, in proportion to their ownership of the principal amount of
Certificates on such date, an amount of gross income equal to the sum of
(i) the amount of interest that accrues in such calendar month on the
Certificates in accordance with their terms, including interest accruing
thereon at the Pass-Through Rate monthly and interest on amounts previously
due under the Certificates and not yet paid as provided therein and (ii)
the portion of market discount on the Receivables accrued during such month
that is allocable to the excess of the initial aggregate principal amount
of the Certificates over their initial aggregate issue price; and
(b) the balance of gross income, if any, to the Seller.
If the ordinary income of the Trust for any month is insufficient for the
allocations described in clause (a) above, subsequent items of ordinary income
shall first be allocated to make up such shortfall before being allocated as
provided in clause (b). Items of loss and deduction of the Trust for any month
as determined for Federal income tax purposes shall be allocated among the
Certificateholders to the extent, if any, that the Servicer determines the
Certificateholders are reasonably expected to bear an economic loss as a result
of a shortfall in payments on the
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Receivables. Such allocations shall be made out of deductions (to the extent
thereof) and, thereafter, out of losses, and shall be made among the
Certificateholders as of the end of such month in proportion to their ownership
of principal amount of Certificates on such date. All remaining items of loss
and deduction shall be allocated to the Seller. If any items of loss or
deduction are allocated to Certificateholders and the Servicer subsequently
determines that the economic loss to Certificateholders will be less than was
expected at the time such allocations were made, additional items of gross
income will be allocated to Certificateholders in subsequent periods to offset
the excess allocations of losses and deductions to Certificateholders before any
items of gross income are allocated to the Seller as provided in clause (b).
SECTION 2.12. RESERVED.
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SECTION 2.13. SPECIAL ALLOCATIONS. (a) In the event any Owner
unexpectedly receives any adjustments, allocations or distributions described in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Trust
income and gain shall be specially allocated to such Owner in an amount and
manner sufficient to eliminate, to the extent required by the Treasury
Regulations, the deficit, if any, in the balance of the Capital Account of such
Owner as quickly as possible. This SECTION 2.13(A) is intended to comply with
the qualified income offset provision in Section 1.704-1(b)(2)(ii)(d) of the
Treasury Regulations.
(b) In the event the initial issue price of Certificates differs from
their initial principal amount, there shall be specially allocated to the Owners
the portion, if any, of the offset for premium (in the case the issue price of
the Certificates exceeds their principal amount) or market discount income (in
the case the principal amount of the Certificates exceeds their issue price) on
the Receivables accruing for a calendar month that is attributable to such
difference.
SECTION 2.14. LIQUIDATING PROFIT OR LOSS. Liquidating Profit or Loss
shall be allocated, after all other adjustments are made to the Capital Accounts
(including adjustments to reflect the Liquidating Distribution), as follows:
(a) First, among the Owners in proportion to their ownership of the
principal amount of Certificates, in an amount that would cause their
Capital Account balances to equal zero (in the case of the Seller, taking
into account the Capital Account balance of the Seller only to the extent
it relates to Certificates owned by the Seller); and
(b) Any balance, to the Seller.
SECTION 2.15. TAX ALLOCATIONS. For income tax purposes, each item of
income, gain, loss and deduction of the Trust shall be allocated among the
Owners and the Seller in accordance with their respective shares of gross income
and losses, as determined under SECTION 2.11 of this Agreement and taking into
account the special allocations set forth in SECTION 2.13, subject to the
provisions of Section 704(c) of the Code. Notwithstanding anything to the
contrary set forth in this Agreement, the Seller is authorized to modify the
allocations of this SECTION 2.15 and SECTIONS 2.11, 2.13 and 2.14 if necessary
or appropriate, in the Seller's sole discretion, for the
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allocations to fairly reflect the economic gain, income or loss to the Seller or
the Owners, or as otherwise required by the Code or the Treasury Regulations.
SECTION 2.16. AMENDED AND RESTATED TRUST AGREEMENT. This Agreement amends
and restates in its entirety the Trust Agreement dated as of [_________ __,
____] between the Seller and Owner Trustee.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Seller pursuant to SECTION 2.05 and until the issuance of
the Certificates, the Seller shall be the sole beneficiary of the Trust.
SECTION 3.02. FORM OF CERTIFICATES. The Certificates shall be issued in
denominations of $1,000 and integral multiples of $1,000 in excess thereof;
PROVIDED, HOWEVER, that not more than two Certificates may be issued in a
denomination not an integral multiple of $1,000. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a Trust
Officer of the Owner Trustee. 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 such Certificates or did not hold such offices at the date of authentication
and delivery of such Certificates.
SECTION 3.03. AUTHENTICATION OF 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 an aggregate
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 Seller, 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 Seller, in authorized denominations. No
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate 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
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF 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,
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the Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided.
[____________________] shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate 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, one or more new Certificates in authorized denominations of a like
aggregate 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.
At the option of a Holder, Certificates may be exchanged for other Certificates
of authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
SECTION 3.08.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing, along with a
Certificateholder Certification duly executed by the transferee of such
Certificate. Each Certificate surrendered for registration of transfer and
exchange 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 or
exchange of 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 Certificates.
The Certificates have not been and will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and neither this Certificate 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.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated Certificate 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 any 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 bona fide 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
10
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 OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be 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 CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Seller, within 15 days after receipt by the Owner Trustee of a
request therefor from the Servicer or the Seller in writing, a list, in such
form as the Servicer or the Seller may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
or more Certificateholders or one or more Holders of Certificates evidencing not
less than 25% of the Certificate Balance apply in writing to the Owner Trustee,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application shall be accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Certificate, shall
be deemed to have agreed not to hold either the Seller 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 [_________________], an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and 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 [__________________], [_____________________________] as its
principal corporate trust office for such purposes. The Owner Trustee shall give
prompt written notice to the Seller and to the Certificateholders 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 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
[____________________], and any
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co-paying agent chosen by [____________________], and acceptable to the Owner
Trustee. [____________________] shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Owner Trustee. In the event that
[____________________] 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 such
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.
SECTION 3.10. [Reserved]
SECTION 3.11. STATEMENTS TO CERTIFICATEHOLDERS. The Owner Trustee shall
forward to each Certificateholder on the related Distribution Date all
statements provided to it by the Servicer pursuant to Section 5.06 of the Sale
and Servicing Agreement.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO OWNERS 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 Holders shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Holders 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 is required;
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(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 Owners;
(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 Owners; 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 OWNERS WITH RESPECT TO CERTAIN MATTERS. The Owner
Trustee shall not have the power, except upon the direction of the Owners, 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 the Owners.
SECTION 4.03. ACTION BY OWNERS 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 unanimous prior approval of all
Owners and the delivery to the Owner Trustee by each such Owner of a certificate
certifying that such Owner reasonably believes that the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON OWNERS' POWER. The Owners 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.
SECTION 4.05. MAJORITY CONTROL. Except as expressly provided herein, any
action that may be taken by the Owners under this Agreement may be taken by the
Holders of Certificates evidencing a majority of the Certificate Balance. Except
as expressly provided herein, any written notice of the Owners delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing a majority of the Certificate Balance at the time of the
delivery of such notice.
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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 Deposit 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 Deposit Account, the
Owner Trustee (or the Seller on behalf of the Owner Trustee, if the Certificate
Distribution Account is not then held by the Owner Trustee or an affiliate
thereof) 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 Deposit Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
SECTION 5.02. APPLICATION OF TRUST FUNDS. (a) On each Distribution Date,
the Owner Trustee will distribute to Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account pursuant to Sections
5.04 and 5.05 of the Sale and Servicing Agreement on or before such Distribution
Date.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.06(a) 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 an Owner, such tax shall reduce the amount
otherwise distributable to the Owner in accordance with this Section. The Owner
Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the Owners 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 an Owner shall be treated as cash distributed to such Owner 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 an Owner
wishes to apply for a refund of any such withholding tax, the Owner Trustee
shall reasonably cooperate with such Owner in making such claim so long as such
Owner agrees to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
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SECTION 5.03. METHOD OF PAYMENT. Subject to SECTION 9.01(C),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Distribution Date
and such Holder's Certificates in the aggregate evidence a denomination of not
less than $1,000,000, or, if not, by check mailed to such Certificateholder at
the address of such holder 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 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.
SECTION 5.05. ACCOUNTING AND REPORT TO THE NOTEHOLDERS, OWNERS,
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, [_______], and on the
accrual method of accounting, (b) deliver to each Owner, as may be required by
the Code and applicable Treasury Regulations, such information as may be
required (including Schedule K-1) to enable each Owner to prepare its federal
and state income tax returns, (c) file such tax returns relating to the Trust
(including a partnership information return, Form 1065), 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 partnership for federal income tax purposes, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with SECTION 5.02(C) with respect to income or distributions to
Owners. As applicable, the Owner Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to the Receivables or shall offset premium against interest income or
original issue discount accruing with respect to the Receivables. The Owner
Trustee shall not make the election provided under Section 754 of the Code.
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a) The tax
returns of the Trust shall be signed by the Seller, as "general partner" of the
partnership created hereunder for tax purposes.
(b) The Seller shall be the "tax matters partner" of the Trust pursuant to
the Code.
SECTION 5.07. CAPITAL ACCOUNTS. The Trust shall maintain accounts
("Capital Accounts") with respect to each Owner (including the Seller). For
this purpose, Capital Accounts shall be maintained in accordance with the
following provisions:
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(a) Each Owner's Capital Account shall be increased by the Capital
Contributions (as defined below) of such Owner, such Owner's distributive
share of Profits (and any Liquidating Profits) and any items in the nature
of income or gain which are specially allocated to such Owner pursuant to
SECTION 2.13 of this Agreement.
(b) Each Owner's Capital Account shall be reduced by any amount
distributed to such Owner (including, in the case of the Seller, any amount
released or otherwise distributed to the Seller from the Reserve Account
under Section 5.05(b) of the Sale and Servicing Agreement), such Owner's
distributive share of Losses (and any Liquidating Loss), and any items in
the nature of expenses or Losses which are specially allocated to such
Owner pursuant to SECTION 2.13 of this Agreement.
(c) In the event all or a portion of a Certificate is transferred in
accordance with the terms of this Agreement, the transferee shall succeed
to the Capital Account of the transferor to the extent it related to such
Certificate or a portion thereof.
"Capital Contribution" means the amount of any cash and the fair market
value of any property contributed to the Trust by a Certificateholder (including
any amounts deemed to be contributed in connection with the original issuance of
the Certificates), including, in the case of the Seller, the amount of any
Receivables contributed by the Seller (with such amount for Receivables intended
to reflect the excess of the Receivables and monies due thereon or with respect
thereto, including accrued but unpaid interest and finance charges, conveyed to
the Trust by the Seller on the Closing Date under Article II of the Sale and
Servicing Agreement over the amount paid to the Seller thereunder). The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with section 1.704-l(b)
of the Treasury Regulations and shall be interpreted in a manner consistent
therewith.
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 Seller
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 Owners, subject to the
16
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, the
Owners 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 Owners pursuant to ARTICLE IV.
(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 Owners 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 of
the Owners received, 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 ten 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 Owners, 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 Owners 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,
17
as it shall deem to be in the best interests of the Owners, 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 Securities and Exchange
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.
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's becoming taxable as a corporation for federal income tax purposes.
The Owner Trustee and the Seller agree that no election to treat the Trust other
than as a partnership for United States Federal income tax purposes or any
relevant state tax purposes shall be made by or on behalf of the Trust. The
Owners shall not direct the Owner Trustee or the Seller 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 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 moneys actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic
18
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 instructions of
the Administrator or any Owner;
(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 Seller 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 any Owner, 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 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 or the Servicer under the Sale and
Servicing 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 of the Owners, unless such Owners have 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
19
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 Owners 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 Noteholders 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 Seller, for the benefit of the Owners, that:
(a) It is a [_________________] duly organized and validly existing
in good standing under the laws of [______________]. 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 will be
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 [____________] 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.
20
(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 and not contrary to this Agreement or
any Basic Document.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created [____________________]
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.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR 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) shall be taken as the
statements of the Seller 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
Certificateholders under this Agreement or the Noteholders under the Indenture,
including, without limitation: 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 Seller 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 CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the Owner or pledgee
of Certificates or Notes and may deal with the Seller, 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.
21
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 Seller and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the Seller
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 11.09.
SECTION 8.02. INDEMNIFICATION. The Seller 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 Seller 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 11.09. 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 Seller, which approval shall not be unreasonably withheld.
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 the Trust shall terminate and be of no further force or
effect, (i) upon the final distribution by the Owner Trustee of all moneys 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
22
such distribution shall be distributed to the Seller. The bankruptcy,
liquidation, dissolution, death or incapacity of any Owner shall not (x) operate
to terminate this Agreement or the Trust, or (y) entitle such Owner'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) Except as provided in SECTION 9.01(A), neither the Seller nor any
Owner 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 their Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to 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 Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
SECTION 5.02.
In the event that all of the Certificateholders shall not surrender their
Certificates 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 remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates 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 remaining
Certificateholders concerning surrender of their Certificates, 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 Seller.
(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 Business Trust Statute.
23
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 Business 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 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.
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 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 Administrator may remove the Owner Trustee. If 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 payment of 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 Administrator shall
24
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 Administrator and to its predecessor Owner Trustee 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 and monies held by it
under this Agreement; and the Administrator 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 Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator 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 Administrator.
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.
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 Administrator 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 or separate trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such title
to the Trust, or any part thereof, and, subject to the
25
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator 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 act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties, and obligations (including the holding of title to
the Trust 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
(iii) the Administrator 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 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.
26
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
by the Seller 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 action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder or Certificateholder or the tax characterization of the
Notes or the Certificates.
This Agreement may also be amended from time to time by the Seller 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 Amount of the Notes and the consent of the Holders of Certificates
evidencing not less than a majority of the Certificate Balance, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; 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
Amount of the Notes and the Certificate Balance required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes and
Certificates.
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 each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders 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 (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
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 the
Certificate of Trust, 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. The Owner
27
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 OWNERS. The Owners
shall not have legal title to any part of the Owner Trust Estate. The Owners
shall be entitled to receive distributions with respect to their undivided
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
the Owners to and in their ownership interest in the Owner Trust Estate 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. Except for SECTION 2.07,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Owners, the Administrator and, to the extent expressly
provided herein, the Indenture Trustee 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 or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Owner Trustee shall be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office; if
to the Seller, addressed to Caterpillar Financial Funding Corporation, Greenview
Plaza, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder 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 the 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.
28
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and its successors and each Owner and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by an Owner shall bind the
successors and assigns of such Owner.
SECTION 11.08. COVENANT OF THE SELLER. In the event that (a) the
Certificate Balance shall be reduced by Realized Losses and (b) any litigation
with claims in excess of $1,000,000 to which the Seller is a party which shall
be reasonably likely to result in a material judgment against the Seller that
the Seller will not be able to satisfy shall be commenced by an Owner, during
the period beginning nine months following the commencement of such litigation
and continuing until such litigation is dismissed or otherwise terminated (and,
if such litigation has resulted in a final judgment against the Seller, such
judgment has been satisfied) the Seller shall not pay any dividend to
Caterpillar Financial Services Corporation, or make any distribution on or in
respect of its capital stock to Caterpillar Financial Services Corporation, or
repay the principal amount of any indebtedness of the Seller held by Caterpillar
Financial Services Corporation, unless (i) after giving effect to such payment,
distribution or repayment, the Seller's liquid assets shall not be less than the
amount of actual damages claimed in such litigation or (ii) the Rating Agency
Condition shall have been satisfied with respect to any such payment,
distribution or repayment. The Seller further agrees that prior to the
termination of the Trust it shall not revoke, modify or otherwise amend any
agreements with Caterpillar Financial Services Corporation in effect on the
Closing Date in any manner that would adversely affect the rights of the Seller
to receive from Caterpillar Financial Services Corporation contributions of
capital or payments on demand pursuant to such agreements. The Seller further
covenants and agrees that it will not enter into any transaction or take any
action (other than any transaction or action contemplated by this Agreement or
any of the Basic Documents) if, as a result of such transaction or action, any
rating of either the Notes or the Certificates by any of the Rating Agencies
would be downgraded or withdrawn.
SECTION 11.09. NO PETITION. The Owner Trustee, by entering into this
Agreement (not in its individual capacity but solely as Owner Trustee), each
Certificateholder, 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 Trust, institute against the Seller, or join in any
institution against the Seller of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the Basic Documents.
SECTION 11.10. NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, 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.
29
SECTION 11.11. 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.
SECTION 11.12. 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 11.13. 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")), whether or not such plan is subject to the provisions of
Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code) 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 (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 next following sentence. By
accepting and holding a Certificate, the Holder thereof shall be deemed to have
represented, warranted and covenanted that it is (A) 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 Certificates, 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
Certificates, 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
Certificates 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 all 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 a Certificate a duly executed
Certificateholder Certification in the form set forth in EXHIBIT C.
(b) The Certificates may not be acquired 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, 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 a U.S. person and shall deliver
to the Owner Trustee, at the time of acquisition of a Certificate and thereafter
from time to time upon request, a duly executed Certificateholder Certification
in the form set forth in Exhibit C.
SECTION 11.14. SELLER PAYMENT OBLIGATION. The Seller shall be responsible
for payment of the Administrator's fees under the Administration Agreement (to
the extent not paid
30
pursuant to Section 5.04 of the Sale and Servicing Agreement) and shall
reimburse the Administrator for all expenses and liabilities of the
Administrator incurred thereunder.
31
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 day and year first above written.
[____________________]
not in its individual capacity
but solely as Owner Trustee,
By:
---------------------------
Name:
Title:
CATERPILLAR FINANCIAL
FUNDING CORPORATION,
as Seller,
By:
---------------------------
Name:
Title:
EXHIBIT A
NUMBER $____________
R- CUSIP NO.___________
SEE REVERSE FOR CERTAIN DEFINITIONS
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")),
WHETHER OR NOT SUCH PLAN IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii)
A PLAN (AS DEFINED IN SECTION 4975(e)(1) OF THE CODE) 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 (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 NEXT FOLLOWING SENTENCE. BY ACCEPTING AND
HOLDING A CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED,
WARRANTED AND COVENANTED THAT IT IS (A) 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 CERTIFICATES, 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 CERTIFICATES, 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 CERTIFICATES 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 ALL 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 A CERTIFICATE A DULY EXECUTED CERTIFICATEHOLDER
CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT C.
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THE CERTIFICATES MAY NOT BE ACQUIRED 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, THE HOLDER SHALL BE DEEMED TO
HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF IT IS ACTING AS A NOMINEE, THE
BENEFICIAL OWNER) IS A U.S. PERSON AND SHALL DELIVER TO THE OWNER TRUSTEE, AT
THE TIME OF ACQUISITION OF A CERTIFICATE AND THEREAFTER FROM TIME TO TIME UPON
REQUEST, A DULY EXECUTED CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT C.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS SET FORTH
IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.]
A-2
CATERPILLAR FINANCIAL ASSET TRUST [____]-[_]
[____]% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts 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 Owner of a
____________ DOLLAR ($________) nonassessable (subject to SECTION 2.07 of the
Trust Agreement (as defined below)), fully-paid, fractional undivided interest
in Caterpillar Financial Asset Trust [____]-[_] (the "Trust") formed by
Caterpillar Financial Funding Corporation, a Nevada corporation (the "Seller").
The Trust was created pursuant to an Amended and Restated Trust Agreement
as of [__________________](the "Trust Agreement"), between the Seller and
[__________________], as owner 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 [_________ __, ____] (the "Sale and Servicing Agreement"),
among the Trust, the Seller and Caterpillar Financial Services Corporation, as
servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates designed as
"[____]% Asset Backed Certificates" (herein called the "Certificates"). Also
issued under the Indenture dated as of [_________ __, ____], between the Trust
and [____________________], as indenture trustee, are Notes designated as "Class
A-1 [____]% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 [____]%
Asset Backed Notes" (the "Class A-2 Notes")[,] [and] "Class A-3 [____]% Asset
Backed Notes" (the "Class A-3 Notes") [and Class B [___]% Asset Backed Notes
(the "Class B Notes"]; together with the A-1 Notes, the A-2 Notes and the Class
A-3 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 secured by new and used equipment (the
"Receivables"), all monies received on or after [__________________] 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 Seller in and to the Purchase
Agreement dated as of [_____________________] between Caterpillar Financial
Services Corporation and
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the Seller 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.
Under the Trust Agreement, there will be distributed on the [_____] day of
each month or, if such day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on [____________________],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") such Certificateholder's fractional undivided
interest in the amount to be distributed to Certificateholders on such
Distribution Date.
It is the intent of the Seller, the Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise and
any other income taxes, the Trust will be treated as a partnership and the
Certificateholders (including the Seller) will be treated as partners in that
partnership. The Seller and the other Certificateholders by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as partnership interests in
the Trust.
Each Certificateholder, by its acceptance of a Certificate or a beneficial
interest in a Certificate, acknowledges and agrees that neither the Seller nor
the Owner Trustee is authorized to elect to treat the Issuer other than as a
partnership for United States federal income tax purposes or any relevant state
tax purposes. Each Certificateholder, by its acceptance of a Certificate or a
beneficial interest in a Certificate, agrees not to take any actions (or direct
the Owner Trustee to take such acts or actions) that would violate such
restriction.
Notwithstanding any prior termination of the Trust Agreement, each
Certificateholder, by its acceptance of a 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 with respect to the Issuer or the Seller, acquiesce,
petition or otherwise invoke or cause the Issuer or the Seller to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer or the Seller, under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or the Seller or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuer or the Seller.
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.
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Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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-5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
CATERPILLAR FINANCIAL ASSET
TRUST [____]-[_],
By: [____________________],
as Owner Trustee
Dated: By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
[____________________], or [____________________],
as Owner Trustee as Owner Trustee
By
--------------------------,
Authenticating Agent
By: By:
----------------------------- -------------------------------------
Authorized Signatory Authorized Signatory
A-6
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Seller, the Servicer, Caterpillar Inc., 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. The Certificates are limited in
right of payment to certain collections and recoveries respecting the
Receivables, all as more specifically set forth 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 Seller, and at such other places, if any,
designated by the Seller, by any 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
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the holders of the
Notes and the Certificateholders each voting as a class evidencing a majority of
the outstanding Notes and the Certificate Balance, respectively. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and of any Certificate
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
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 [_____________________], accompanied by a written
instrument of transfer in force 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 interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is
[_____________________].
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 or integral multiples of $1,000 in excess
thereof. As provided in the Trust Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate denomination, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar
A-7
may require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
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 Certificateholders of
all amounts required to be paid to them 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 Pool Balance is less than
10% of the Initial Pool Balance.
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")), whether or not such plan is
subject to the provisions of Title I of ERISA, (ii) a plan (as defined in
Section 4975(e)(1) of the Code) 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 (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 next following sentence. By accepting and holding a
Certificate, the Holder thereof shall be deemed to have represented, warranted
and covenanted that it is (A) 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 Certificates, 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 Certificates, 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 Certificates 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 all 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 a Certificate a duly executed Certificateholder Certification in
the form set forth in EXHIBIT C.
The Certificates may not be acquired 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, 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 a U.S. person and shall deliver to
the Owner Trustee, at the time of acquisition of a Certificate and thereafter
from time
A-8
to time upon request, a duly executed Certificateholder Certification in the
form set forth in Exhibit C.
A-9
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.
EXHIBIT B
CERTIFICATE OF TRUST OF
CATERPILLAR FINANCIAL ASSET TRUST [____]-[_]
THIS Certificate of Trust of CATERPILLAR FINANCIAL ASSET TRUST [____]-[_]
(the "Trust"), dated [_________ __, ____], is being duly executed and filed by
[________ _______________], as trustee, to form a business trust under the
Delaware Business Trust Act (12 DEL. CODE, Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is CATERPILLAR
FINANCIAL ASSET TRUST [____]-[_].
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is [____________________],
[____________________], Attention: Corporate Trustee Administration Department.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
[Owner Trustee], not in its
individual capacity but solely
as Owner Trustee,
By:
-----------------------------------
Name:
Title:
B-1
EXHIBIT C
CERTIFICATEHOLDER CERTIFICATION
This Certificateholder Certification ("Certification") is delivered
pursuant to SECTION 11.13(B) of Caterpillar Financial Asset Trust [____]-[_]
Amended and Restated Trust Agreement, dated as of [________ __, ____] (the
"Trust Agreement"), between Caterpillar Financial Funding Corporation and
[____________________], 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 [____]-[_] [____]% Asset Backed Certificate
(the "Certificate"). Capitalized terms used but not defined in this
Certification have the respective meanings given them in the Trust Agreement.
Each 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 Section 1446 of
the Internal Revenue Code (relating to withholding tax on foreign partners) 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
1. I am (The Beneficial Owner is) not a non-resident alien for
purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------; and
3. My (The Beneficial Owner's) U.S. taxpayer identification number
(Social Security Number) is
----------------------.
B. Corporate, Partnership or other Entity as Beneficial Owner
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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2. The Beneficial Owner's office address and place of incorporation
(if applicable) is _________________________________________
_________________________________________; and
3. 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
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this Certification.
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:
1. I am not an employee benefit plan (as defined in Section 3(3) of
ERISA).
2. I am not a plan (as defined in Section 4975(e)(1) of the Code) which
is subject to Section 4975 of the Code.
3. I am not 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 Regulation Section 2510.3-101 (excluding
any investment company that is registered under the Investment Company
Act of 1940, as amended).
C-3
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
*NOTE: If signed pursuant to a power of attorney, the power of attorney must
accompany this Certification.
C-4