CATERPILLAR FINANCIAL ASSET TRUST 2007-A Class A-1 5.67225% Asset Backed Notes Class A-2a 5.40% Asset Backed Notes Class A-2b Floating Rate Asset Backed Notes Class A-3a 5.34% Asset Backed Notes Class A-3b Floating Rate Asset Backed Notes Class B...
Exhibit
10.2
CATERPILLAR
FINANCIAL ASSET TRUST 2007-A
Class
A-1 5.67225% Asset Backed Notes
Class
A-2a 5.40% Asset Backed Notes
Class
A-2b Floating Rate Asset Backed Notes
Class
A-3a 5.34% Asset Backed Notes
Class
A-3b Floating Rate Asset Backed Notes
Class
B 6.18% Asset Backed Notes
Dated
as of September 1, 2007
CATERPILLAR
FINANCIAL SERVICES CORPORATION
Administrator
ADMINISTRATION
AGREEMENT, dated as of September 1, 2007 (as amended, modified or supplemented
from time to time, this "Agreement"), among CATERPILLAR FINANCIAL ASSET TRUST
2007-A, a Delaware statutory trust (the "Issuing Entity"), CATERPILLAR FINANCIAL
SERVICES CORPORATION, a Delaware corporation ("CFSC"), as administrator (the
"Administrator"), CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada
corporation, as depositor (the "Depositor"), and U.S. BANK NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity but solely as
trustee (the "Indenture Trustee").
W
I T N E S S E T H :
WHEREAS
the Issuing Entity is issuing the Class A-1 5.67225% Asset Backed Notes (the
"Class A-1 Notes"), the Class A-2a 5.40% Asset Backed Notes (the "Class
A-2a Notes"), the Class A-2b Floating Rate Asset Backed Notes (the "Class A-2b
Notes" and, together with the Class A-2a Notes, the "Class A-2 Notes"), the
Class A-3a 5.34% Asset Backed Notes (the "Class A-3a Notes"), the Class A-3b
Floating Rate Asset Backed Notes (the "Class A-3b Notes" and, together with
the
Class A-3a Notes, the "Class A-3 Notes") and the Class B 6.18% Asset Backed
Notes (the "Class B Notes"; together with the Class A-1 Notes,
Class A-2 Notes and the Class A-3 Notes, the "Notes") pursuant to the
Indenture, dated as of September 1, 2007 (as amended, modified or supplemented
from time to time, the "Indenture"), between the Issuing Entity and the
Indenture Trustee.
WHEREAS
the Issuing Entity has entered into certain agreements in connection with the
issuance of the Notes and of certain beneficial ownership interests in the
Issuing Entity, including (i) a Sale and Servicing Agreement, dated as of
September 1, 2007 (as amended, modified or supplemented from time to time,
the
"Sale and Servicing Agreement") (capitalized terms used herein and not defined
herein shall have the meanings assigned such terms in the Sale and Servicing
Agreement, or if not defined therein, in the Indenture) among the Issuing
Entity, CFSC, as servicer, and the Depositor, (ii) a Depository Agreement
dated September 26, 2007 (the "Depository Agreement"), among the Issuing Entity
and The Depository Trust Company, (iii) the Indenture and (iv) the Interest
Rate Swap Agreement. The Sale and Servicing Agreement, the Depository Agreement,
the Indenture and the Interest Rate Swap Agreement are hereinafter referred
to
collectively as the "Related Agreements";
WHEREAS
pursuant to the Related Agreements, the Issuing Entity and the Owner Trustee
are
required to perform certain duties in connection with (a) the Notes and the
collateral therefor granted to the Indenture Trustee pursuant to the Indenture
(the "Collateral"), (b) the requirements of the Interest Rate Swap Agreement
and
(c) the beneficial ownership interests in the Issuing Entity (the holders
of such interests being referred to herein as the "Owners");
WHEREAS
the Issuing Entity desires to have the Administrator provide certain
administrative services to the Issuing Entity and the Owner
Trustee;
WHEREAS
the Administrator has the capacity to provide the services required hereby
and
is willing to perform such services for the Issuing Entity and the Owner Trustee
on the terms set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Duties
of
Administrator.
(a) Duties
with Respect to the Related Agreements. (i) The
Administrator agrees to cause the Issuing Entity to perform all the duties
of
the Issuing Entity and the Owner Trustee under the Depository
Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuing Entity and the Owner Trustee
under the Related Agreements. The Administrator shall monitor the performance
of
the Issuing Entity and shall advise the Owner Trustee when action is necessary
to comply with the Issuing Entity's or the Owner Trustee's duties under the
Related Agreements. The Administrator shall prepare for execution by the Issuing
Entity or the Owner Trustee or shall cause the preparation by other appropriate
persons of all documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuing Entity or the Owner Trustee
to
prepare, file or deliver pursuant to any Related Agreement. The Administrator,
subject to Section 1(c), shall cause the Issuing Entity to take all
appropriate action that it is the duty of the Issuing Entity or the Owner
Trustee to take pursuant to the Indenture including, without limitation, the
following duties or actions under the Indenture (references are to sections
of
the Indenture):
(A) the
preparation of or obtaining of the documents and instruments required for
authentication of the Notes, if any, and delivery of the same to the Indenture
Trustee (Section 2.02);
(B) causing
the Note Register to be kept and giving the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or change in location,
of
the Note Register (Section 2.04);
(C) the
notification of Noteholders of the final principal payment on their Notes
(Section 2.07(b));
(D) the
fixing or causing to be fixed of any specified record date and the notification
of the Indenture Trustee and Noteholders with respect to special payment dates,
if any (Section 2.07(c));
(E) the
preparation, obtaining or filing of the instruments, opinions and certificates
and other documents required for the release of collateral (Section
2.09);
(F) causing
newly appointed Paying Agents, if any, to deliver to the Indenture Trustee
the
instrument specified in the Indenture regarding funds held in trust (Section
3.03);
(G) the
direction to Paying Agents, if any, to pay to the Indenture Trustee all sums
held in trust by such Paying Agents (Section 3.03);
(H) the
obtaining and preservation of the Issuing Entity's qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in the Trust Estate
(Section 3.04);
2
(I) the
preparation of all supplements, amendments, financing statements, continuation
statements, if any, instruments of further assurance and other instruments,
in
accordance with Section 3.05 of the Indenture, necessary to protect the
Trust Estate (Section 3.05);
(J) the
obtaining of the Opinion of Counsel on the Closing Date and the obtaining of
annual Opinions of Counsel, in accordance with Section 3.06 of the
Indenture, as to the Trust Estate, and the obtaining of the annual Officer's
Certificate and certain other statements, in accordance with Section 3.09
of the Indenture, as to compliance with the Indenture (Sections 3.06 and
3.09);
(K) the
identification to the Indenture Trustee in an Officer's Certificate of a Person
with whom the Issuing Entity has contracted to perform its duties under the
Indenture (Section 3.07(b));
(L) the
notification of the Indenture Trustee and the Rating Agencies of a Servicer
Default pursuant to the Sale and Servicing Agreement and, if such Servicer
Default arises from the failure of the Servicer to perform any of its duties
under the Sale and Servicing Agreement, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(M) the
preparation and obtaining of documents and instruments required for the release
of the Issuing Entity from its obligation under the Indenture
(Section 3.11(b));
(N) the
delivery of notice to the Indenture Trustee and the Rating Agencies of each
Event of Default and each default by the Servicer or Depositor under the Sale
and Servicing Agreement (Section 3.19);
(O) the
preparation of an Officer's Certificate and the obtaining of the Opinion of
Counsel and the Independent Certificate relating to satisfaction and discharge
of the Indenture (Section 4.01);
(P) the
compliance with any written directive of the Indenture Trustee with respect
to
the sale of the Trust Estate in a commercially reasonable manner if an Event
of
Default shall have occurred and be continuing (Section 5.04);
(Q) the
preparation and delivery of notice to Noteholders of the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee (Section
6.08);
(R) the
preparation of any written instruments required to confirm more fully the
authority of any co-trustee or separate trustee and any written instruments
necessary in connection with the resignation or removal of any co-trustee or
separate trustee (Sections 6.08 and 6.10);
3
(S) (i) in
the event of any early termination of any Interest Rate Swap Agreement, the
preparation of written direction and notification of such early termination
to
the appropriate parties and (ii) the notification of the Swap Counterparty
of any proposed amendment or supplement to any Basic Document (Section
6.14);
(T) the
furnishing of the Indenture Trustee with the names and addresses of Noteholders
during any period when the Indenture Trustee is not the Note Registrar (Section
7.01);
(U) the
preparation and filing with the Commission, any applicable state agencies and
the Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders (Section
7.03);
(V) the
opening of one or more accounts, the preparation of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions necessary with
respect to investment and reinvestment of funds in the Trust Accounts (Sections
8.02 and 8.03);
(W) the
preparation of an Issuer Request and Officer's Certificate and the obtaining
of
an Opinion of Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate (Sections 8.04 and 8.05);
(X) the
preparation of Issuer Orders and the obtaining of Opinions of Counsel with
respect to the execution of supplemental indentures and the mailing to the
Noteholders and the Swap Counterparty of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and 9.03);
(Y) the
preparation of new Notes conforming to any supplemental indenture (Section
9.06);
(Z) the
notification of Noteholders of redemption of the Notes
(Section 10.02);
(AA) the
preparation of all Officer's Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuing Entity to the Indenture
Trustee to take any action under the Indenture (Section 11.01(a));
(BB) the
preparation and delivery of Officer's Certificates and the obtaining of
Independent Certificates, if necessary, for the release of property from the
lien of the Indenture (Section 11.01(b));
(CC) the
notification of the Rating Agencies, upon the failure of the Indenture Trustee
to give such notification, of the information required pursuant to Section
11.04 of the Indenture (Section 11.04);
4
(DD) the
preparation and delivery to Noteholders and the Indenture Trustee of any
agreements with respect to alternate payment and notice provisions (Section
11.06);
(EE) the
recording of the Indenture, if applicable (Section 11.15); and
(FF) causing
the Servicer to comply with Sections 4.09, 4.10, 4.11,
4.12,4.13 and 5.07 of the Sale and Servicing
Agreement.
(ii) The
Administrator will:
(A) pay
the Indenture Trustee from time to time reasonable compensation for all services
rendered by the Indenture Trustee under the Indenture (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(B) except
as otherwise expressly provided in the Indenture, reimburse the Indenture
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Indenture Trustee in accordance with any provision
of
the Indenture (including the reasonable compensation, expenses and disbursements
of its agents and either in-house counsel or outside counsel, but not both),
except any such expense, disbursement or advance as may be attributable to
its
negligence or bad faith;
(C) indemnify
the Indenture Trustee and its agents for, and hold them harmless against, any
losses, liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of
the transactions contemplated by the Indenture, including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
under the Indenture; and
(D) indemnify
the Owner Trustee and its agents for, and to hold them harmless against, any
losses, liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of
the transactions contemplated by the Trust Agreement, including the reasonable
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
under the Trust Agreement.
(b) Additional
Duties. (i) In addition to the duties of the
Administrator set forth above, but subject to Sections 1(c) and 5, the
Administrator shall cause the Issuing Entity to perform such calculations and
to
prepare for execution by the Issuing Entity or the Owner Trustee, or to cause
the preparation by other appropriate persons of, all documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the
Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to
the
Related Agreements, and at the request of the Owner Trustee shall cause the
Issuing Entity to take all appropriate action that it is the duty of the Issuing
Entity or the Owner Trustee to take pursuant to the Related
Agreements. Subject to Sections 1(c) and 5 of this
Agreement, and in accordance with the directions of the Owner Trustee, the
Administrator shall provide such other services with respect to the Issuing
Entity as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Administrator.
5
(ii) Notwithstanding
anything in this Agreement or the Related Agreements to the contrary, the
Administrator shall promptly notify the Owner Trustee in the event that any
withholding tax is imposed on the Issuing Entity's payments (or allocations
of
income) to the "Owner" as contemplated in Section 5.02(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) The
Administrator may satisfy its obligations with respect to clause (ii) above
and
Section 5.05 of the Trust Agreement by retaining, at the expense of the
Administrator, a firm of independent public accountants (the "Accountants")
acceptable to the Owner Trustee which shall perform the obligations of the
Administrator thereunder. If the Administrator so elects, in
connection with paragraph (ii) above, the Accountants will provide prior to
October 25, 2007 a letter in form and substance satisfactory to the Owner
Trustee as to whether any tax withholding is then required and, if required,
the
procedures to be followed with respect thereto to comply with the requirements
of the Code.
(iv) The
Administrator shall perform the duties of the Administrator specified in
Section 10.02 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator under the Trust
Agreement.
(v) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Administrator may enter into transactions with or otherwise
deal
with any of its Affiliates; provided, however, that the terms of
any such transactions or dealings shall be in accordance with any directions
received from the Issuing Entity and shall be, in the Administrator's opinion,
no less favorable to the Issuing Entity than would be available from
unaffiliated parties.
(vi) The
Administrator shall cause the Issuing Entity to execute all documents, reports,
filings, instruments, and certificates as it shall be the duty of the Issuing
Entity or the Owner Trustee to prepare, file or deliver pursuant to the Basic
Documents. In furtherance thereof, the Owner Trustee shall, on behalf
of itself and of the Issuing Entity, execute and deliver to the Administrator,
and to each successor Administrator appointed pursuant to the terms hereof,
one
or more powers of attorney substantially in the form of Exhibit A hereto,
appointing the Administrator the attorney-in-fact of the Owner Trustee and
the
Issuing Entity for the purpose of executing on behalf of the Owner Trustee
and
the Issuing Entity all such documents, reports, filings, instruments, and
certificates.
(c) Non-Ministerial
Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the taking
of
such action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
6
(A) the
amendment of or any supplement to the Indenture, any other Basic Document,
any
other Related Agreement, or any other document or agreement to which the Issuing
Entity or the Owner Trustee is a party;
(B) the
initiation or compromise of any claim or lawsuit to which the Issuing Entity
is
a party;
(C) the
appointment of successor Note Registrars, successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture or the appointment of successor
Administrators, or the consent to the assignment by the Note Registrar, Paying
Agent or Indenture Trustee of its obligations under the Indenture;
(D) the
removal of the Indenture Trustee;
(E) the
allocation, deposit, withdrawal or payment of funds under any Basic Document
or
Related Agreement, including the timing or amount of any of the
foregoing;
(F) the
prepayment in full of any Note;
(G) the
waiver of any default under any document, agreement, or instrument;
(H) the
release of any part of the Collateral;
(I) the
entering into of any agreement by the Issuing Entity or the Owner
Trustee;
(J) any
matter described in Article IV of the Trust Agreement;
(K) any
matter that is reserved to the discretion of the Issuing Entity or the Owner
Trustee under any Basic Document or Related Agreement or that could have a
material impact on the financial condition of the Issuing Entity or the
Certificateholder;
(L) the
incurring of any obligation or liability by the Issuing Entity or the Owner
Trustee;
(M) the
disposition of any assets of the Issuing Entity, except as expressly authorized
by the Trust Agreement or the Indenture;
(N) any
filings required by the Delaware Statutory Trust Act;
(O) the
provision of copies of any amendment or supplement to the Interest Rate Swap
Agreement to the Rating Agencies; and
(P) the
notification to the Swap Counterparty of any proposed amendment or supplement
to
any of the Basic Documents.
7
(ii) Notwithstanding
anything to the contrary in this Agreement, the Administrator shall not be
obligated to, and shall not, (A) pay any obligation of the Issuing Entity
or the Owner Trustee, (B) execute or authenticate any note or certificate,
(C) make any payments to the Noteholders, the Certificateholder, the Swap
Counterparty or any other Person under any Related Agreement or any Basic
Document, (D) sell the Trust Estate pursuant to Section 5.04 of the
Indenture or (E) take any other action that the Issuing Entity directs the
Administrator not to take on its behalf or take, or cause or instruct the
Issuing Entity or the Owner Trustee to take, any action that the Issuing Entity
or the Owner Trustee is prohibited from taking under any Basic
Document.
2. Records. The
Administrator shall maintain appropriate books of account and records relating
to services performed hereunder, which books of account and records shall be
accessible for inspection by the Issuing Entity, the Owner Trustee, the
Indenture Trustee and the Depositor at any time during normal business
hours.
3. Compensation. As
compensation for the performance of the Administrator's obligations under this
Agreement, the Administrator shall be entitled to $500 per month which shall
be
payable in accordance with Section 5.05 of the Sale and Servicing
Agreement. The Depositor shall also reimburse the Administrator for
any of its liabilities and expenses related to its performance hereunder or
under any Related Agreement (including without limitation those expenses set
forth in Section 1(a)(ii) of this Agreement).
4. Additional
Information To Be
Furnished to Issuing Entity. The Administrator shall
furnish to the Issuing Entity from time to time such additional information
regarding the Collateral as the Issuing Entity shall reasonably
request.
5. Independence
of
Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to
the
supervision of the Issuing Entity or the Owner Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Issuing Entity, the Administrator shall
have
no authority to act for or represent the Issuing Entity or the Owner Trustee
in
any way and shall not otherwise be deemed an agent of the Issuing Entity or
the
Owner Trustee.
6. No
Joint
Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuing Entity or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of
them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
7. Other
Activities of
Administrator. Nothing herein shall prevent the
Administrator or its affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for
any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuing Entity, the Owner Trustee or the
Indenture Trustee.
8
8. Term
of Agreement; Resignation and
Removal of Administrator. (a) This Agreement
shall continue in force until the dissolution of the Issuing Entity, upon which
event this Agreement shall automatically terminate.
(b) Subject
to Section 8(e) and (f), the Administrator may resign its duties hereunder
by
providing the Issuing Entity with at least 60 days prior written
notice.
(c) Subject
to Section 8(e) and (f), the Issuing Entity may remove the Administrator without
cause by providing the Administrator with at least 60 days prior written
notice.
(d) Subject
to Section 8(e) and (f), at the sole option of the Issuing Entity, the
Administrator may be removed immediately upon written notice of termination
from
the Issuing Entity to the Administrator if any of the following events shall
occur:
(i) the
Administrator shall default in the performance of any of its duties under this
Agreement and, after notice of such default, shall not cure such default within
ten days (or, if such default cannot be cured in such time, shall not give
within 10 days such assurance of cure as shall be reasonably satisfactory to
the
Issuing Entity);
(ii) a
court having jurisdiction in the premises shall enter a decree or order for
relief, and such decree or order shall not have been vacated within 60 days,
in
respect of the Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect or
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator
or
similar official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the
Administrator shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to
the
entry of an order for relief in an involuntary case under any such law, or
shall
consent to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of possession
by
any such official of any substantial part of its property, shall make any
general assignment for the benefit of creditors or shall fail generally to
pay
its debts as they become due.
The
Administrator agrees that if any of the events specified in clause (ii) or
(iii)
of this Section shall occur, it shall give written notice thereof to the Issuing
Entity and the Indenture Trustee within seven days after the happening of such
event.
(e) No
resignation or removal of the Administrator pursuant to this Section shall
be
effective until (i) a successor Administrator shall have been appointed by
the
Issuing Entity and (ii) such successor Administrator shall have agreed in
writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The
appointment of any successor Administrator shall be effective only after
satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
9
9. Action
upon Termination, Resignation
or Removal. Promptly upon the effective date of
termination of this Agreement pursuant to Section 8(a) or the resignation
or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Issuing Entity all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 8(b) or (c), respectively, the Administrator
shall cooperate with the Issuing Entity and take all reasonable steps requested
to assist the Issuing Entity in making an orderly transfer of the duties of
the
Administrator.
10. Notices. Any
notice, report or other communication given hereunder shall be in writing and
addressed as follows:
(a) if
to the Issuing Entity, to
Caterpillar
Financial Asset Trust 2007-A
The
Bank of New York (Delaware)
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Route 273
Newark,
Delaware 19711
Attention: Corporate
Trust Administration
(b) if
to the Owner Trustee, to
The
Bank of New York (Delaware)
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Route 273
Newark,
Delaware 19711
Attention: Corporate
Trust Administration
(c) if
to the Administrator, to
Caterpillar
Financial Services Corporation
▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Nashville,
TN 37203-0001
(d) if
to the Indenture Trustee, to
U.S.
Bank National Association
▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Chicago,
IL 60604
(e) if
to the Depositor, to
▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Suite
344
Las
Vegas, Nevada 89119
10
or
to such other address as any party shall have provided to the other parties
in
writing. Any notice required to be in writing hereunder shall be deemed given
upon receipt.
11. Amendments. This
Agreement may be amended, with prior written notice to the Rating Agencies,
from
time to time by a written amendment duly executed and delivered by the Issuing
Entity, the Administrator and the Indenture Trustee, with the written consent
of
the Owner Trustee, without the consent of the Swap Counterparty, the Noteholders
and the Certificateholder, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Swap Counterparty, the Noteholders
or the Certificateholder; provided, however, that such amendment
will not, in the Opinion of Counsel, materially and adversely affect the
interest of the Swap Counterparty, any Noteholder or the Certificateholder
or
the federal tax characterization of the Notes; provided, further, that such
amendment shall not materially and adversely affect the rights and obligations
of the Swap Counterparty or the Issuing Entity under the Interest Rate Swap
Agreement unless the Swap Counterparty shall have consented in writing to such
amendment (and such consent shall be deemed to have been given if the Swap
Counterparty does not object in writing within ten (10) Business Days after
receipt of a written request for such consent). This Agreement may
also be amended, with prior written notice to the Rating Agencies, by the
Issuing Entity, the Administrator and the Indenture Trustee with the written
consent of the Owner Trustee and the holders of Notes evidencing a majority
in
the Outstanding Amount of the Notes and the holder of the Certificate for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
Noteholders or the Certificateholder; provided, however, that no
such amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders
or
the Certificateholder or (ii) reduce the aforesaid percentage of the holders
of
Notes and the holder of the Certificate which are required to consent to any
such amendment, without the consent of the holders of all the outstanding Notes
and the Certificate. Notwithstanding the foregoing, this Agreement may not
be
amended without the consent of the Depositor, which consent shall not be
unreasonably withheld.
12. Successors
and
Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing
by
the Issuing Entity and the Owner Trustee and subject to the satisfaction of
the
Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuing Entity or
the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided
that
such successor organization executes and delivers to the Issuing Entity, the
Owner Trustee and the Indenture Trustee an agreement in which such corporation
or other organization agrees to be bound hereunder by the terms of said
assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
13. GOVERNING
LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
11
14. Headings. The
section headings hereof have been inserted for convenience of reference only
and
shall not be construed to affect the meaning, construction or effect of this
Agreement.
15. Counterparts. This
Agreement may be executed in counterparts, each of which when so executed shall
together constitute but one and the same agreement.
16. Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall 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.
17. Not
Applicable to the Administrator
in Other Capacities. Nothing in this Agreement shall
affect any obligation the Administrator may have in any other
capacity.
18. Limitation
of Liability of Owner
Trustee and Indenture Trustee.
(a) Notwithstanding
anything contained herein to the contrary, this instrument has been signed
by
The Bank of New York (Delaware) not in its individual capacity but solely in
its
capacity as Owner Trustee of the Issuing Entity and in no event shall The Bank
of New York (Delaware) in its individual capacity or any beneficial owner of
the
Issuing Entity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuing Entity hereunder,
as
to all of which recourse shall be had solely to the assets of the Issuing
Entity. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuing Entity hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding
anything contained herein to the contrary, this Agreement has been signed by
U.S. Bank National Association not in its individual capacity but solely as
Indenture Trustee and in no event shall U.S. Bank National Association have
any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuing Entity hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuing Entity.
(c) All
of the rights of the Swap Counterparty in, to and under this Agreement, if
any,
shall terminate upon the termination of the Interest Rate Swap Agreement in
accordance with the terms thereof and the payment in full of all amounts owing
to the Swap Counterparty under such Interest Rate Swap Agreement.
19. Third-Party
Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party
hereto.
12
20. Successor
Servicer and
Administrator. A successor Servicer appointed pursuant to
Section 8.02 of the Sale and Servicing Agreement shall, upon compliance with
the
last sentence of the first paragraph of Section 8.02 of the Sale and
Servicing Agreement, become the successor Administrator hereunder;
provided, however, that if the Indenture Trustee shall become such
successor Administrator, the Indenture Trustee shall not be required to perform
any obligations or duties or conduct any activities as successor Administrator
that would be prohibited by law and not within the banking and trust powers
of
the Indenture Trustee. In such event, the Indenture Trustee shall
appoint a sub-administrator to perform such obligations and duties.
21. Nonpetition
Covenants.
(a) Notwithstanding
any prior termination of this Agreement, the Depositor, the Administrator,
the
Owner Trustee and the Indenture Trustee shall not, prior to the date which
is
one year and one day after the payment of the Notes in full, acquiesce, petition
or otherwise invoke or cause the Issuing Entity to invoke the process of any
court or government authority for the purpose of commencing or sustaining a
case
against the Issuing Entity 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 Issuing Entity or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Issuing Entity.
(b) Notwithstanding
any prior termination of this Agreement, the Issuing Entity, the Administrator,
the Owner Trustee and the Indenture Trustee shall not, prior to the date which
is one year and one day after the payment of the Notes in full, acquiesce,
petition or otherwise invoke or cause the Depositor to invoke the process of
any
court or government authority for the purpose of commencing or sustaining a
case
against the Depositor 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 Depositor or any substantial
part
of its property, or ordering the winding up or liquidation of the affairs of
the
Depositor.
[Signature
Page Follows]
13
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the date first above written.
|
|
CATERPILLAR
FINANCIAL ASSET TRUST 2007-A
|
|
THE
BANK
OF NEW YORK (DELAWARE),
not in its individual capacity but soley as Owner
Trustee
|
|||
|
|
By:
|
/s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Vice President | |||
|
U.S.
BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture
Trustee
|
|||
|
|
By:
|
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Vice President | |||
|
CATERPILLAR
FINANCIAL SERVICES CORPORATION,
as Administrator
|
|||
|
|
By:
|
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: Executive Vice President and Chief Financial Officer | |||
|
as Depositor
|
|||
|
|
By:
|
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: Treasurer | |||
EXHIBIT
A
[Form
of Power of Attorney]
POWER
OF ATTORNEY
STATE
OF
____________ )
)
COUNTY
OF
__________ )
KNOW
ALL MEN BY THESE PRESENTS, that ______________________, a
____________________________, not in its individual capacity but solely as
owner
trustee ("Owner Trustee") for the Caterpillar Financial Asset Trust 2007-A
("Trust"), does hereby make, constitute and appoint
____________________________, as Administrator under the Administration
Agreement (as defined below), as Attorney-in-Fact to execute on behalf of the
Owner Trustee or the Issuing Entity all documents, reports, filings,
instruments, and certificates as it shall be the duty of the Owner Trustee
or
the Issuing Entity to prepare, file or deliver pursuant to the Related
Agreements (as defined in the Administration Agreement), including, without
limitation, to appear for and represent the Owner Trustee and the Issuing Entity
in connection with the preparation, filing and audit of federal, state and
local
tax returns pertaining to the Issuing Entity, and with full power to perform
any
and all acts associated with such returns and audits that the Owner Trustee
could perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restriction on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power
of Attorney, the term "Administration Agreement" means the Administration
Agreement, dated as of September 1, 2007, among the Issuing Entity, Caterpillar
Financial Services Corporation, as Administrator, Caterpillar Financial Funding
Corporation, as Depositor, and U.S. Bank National Association, as Indenture
Trustee, as amended, modified or supplemented from time to time.
All
powers of attorney for this purpose heretofore filed or executed by the Owner
Trustee are hereby revoked.
EXECUTED
this [___] day of September 2007.
| THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but soley as Owner Trustee, | |||
|
|
By:
|
||
| Name | |||
| Title | |||
TABLE
OF
CONTENTS
Page
|
DUTIES
OF ADMINISTRATOR
|
2
|
|
2.
|
RECORDS
|
8
|
|
3.
|
COMPENSATION
|
8
|
|
4.
|
ADDITIONAL
INFORMATION TO BE FURNISHED TO ISSUING ENTITY
|
8
|
|
5.
|
INDEPENDENCE
OF ADMINISTRATOR
|
8
|
|
6.
|
NO
JOINT VENTURE
|
8
|
|
7.
|
OTHER
ACTIVITIES OF ADMINISTRATOR
|
8
|
|
8.
|
TERM
OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR
|
8
|
|
9.
|
ACTION
UPON TERMINATION, RESIGNATION OR REMOVAL
|
9
|
|
10.
|
NOTICES
|
10
|
|
11.
|
AMENDMENTS
|
11
|
|
12.
|
SUCCESSORS
AND ASSIGNS
|
11
|
|
13.
|
GOVERNING
LAW
|
11
|
|
14.
|
HEADINGS
|
12
|
|
15.
|
COUNTERPARTS
|
12
|
|
16.
|
SEVERABILITY
|
12
|
|
17.
|
NOT
APPLICABLE TO THE ADMINISTRATOR IN OTHER CAPACITIES
|
12
|
|
18.
|
LIMITATION
OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE
|
12
|
|
19.
|
THIRD-PARTY
BENEFICIARY
|
12
|
|
20.
|
SUCCESSOR
SERVICER AND ADMINISTRATOR
|
13
|
|
21.
|
NONPETITION
COVENANTS
|
13
|
EXHIBIT
A - Form
of Power of Attorney