Exhibit 10.3
EXECUTION COPY
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CUSTODIAL AGREEMENT
Among
CATERPILLAR FINANCIAL SERVICES CORPORATION
Originator and Servicer
CATERPILLAR FINANCIAL FUNDING CORPORATION
Seller
CATERPILLAR FINANCIAL ASSET TRUST 1998-A
Issuer
and
THE FIRST NATIONAL BANK OF CHICAGO
Indenture Trustee and Custodian
DATED AS OF JULY 1, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.2 Interpretation of the Agreement. . . . . . . . . . . . . . . . . .2
ARTICLE II CUSTODIAL ARRANGEMENT. . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.1 Appointment as Custodian . . . . . . . . . . . . . . . . . . . . 2
Section 2.2 Maintenance of Office. . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE III CUSTODIAL ARRANGEMENT . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 3.1 Transfer of Receivables; Delivery of Documents . . . . . . . . . .3
Section 3.2 Certification. . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 3.3 Release of Receivables Files . . . . . . . . . . . . . . . . . . .4
Section 3.4 Purchase; Payment In Full. . . . . . . . . . . . . . . . . . . . .5
Section 3.5 Other Duties of Custodian. . . . . . . . . . . . . . . . . . . . .5
Section 3.6 Access to Records. . . . . . . . . . . . . . . . . . . . . . . . .5
Section 3.7 Instructions; Authority to Act . . . . . . . . . . . . . . . . . .6
ARTICLE IV OWNERSHIP AND TRANSFER OF RECEIVABLES. . . . . . . . . . . . . . . . . .6
Section 4.1 Transfer of Receivables. . . . . . . . . . . . . . . . . . . . . .6
Section 4.2 Substitution and Purchase of Receivables . . . . . . . . . . . . .6
Section 4.3 No Service Charge for Transfer of Receivables. . . . . . . . . . .7
Section 4.4 Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE V CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 5.1 Representations, Warranties and Covenants of Custodian . . . . . .7
Section 5.2 Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . .8
Section 5.3 No Adverse Interests . . . . . . . . . . . . . . . . . . . . . . .9
Section 5.4 Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 5.5 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 5.6 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . .9
Section 5.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 5.8 Further Rights of Custodian. . . . . . . . . . . . . . . . . . . 10
ARTICLE VI MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 10
I
TABLE OF CONTENTS
(continued)
PAGE
Section 6.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.4 Severability of Provisions . . . . . . . . . . . . . . . . . . 11
Section 6.5 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.6 Termination of Agreement . . . . . . . . . . . . . . . . . . . 11
Section 6.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.8 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.10 Advice of Counsel. . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.11 No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.12 Resignation of Custodian . . . . . . . . . . . . . . . . . . . 12
Section 6.13 Limitation of Liability of Indenture Trustee and Owner
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
EXHIBIT A CUSTODIAN CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B REQUEST FOR RELEASE OF DOCUMENTS . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C TRANSFER CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . C-1
II
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT is made as of July 1, 1998, by and among
CATERPILLAR FINANCIAL SERVICES CORPORATION (the "Originator"), CATERPILLAR
FINANCIAL SERVICES CORPORATION, as Servicer (the "Servicer"), CATERPILLAR
FINANCIAL FUNDING CORPORATION (the "Seller"), CATERPILLAR FINANCIAL ASSET TRUST
1998-A (the "Trust"), THE FIRST NATIONAL BANK OF CHICAGO, as Indenture Trustee
under the Indenture (the "Indenture Trustee") and THE FIRST NATIONAL BANK OF
CHICAGO, as Custodian ("Custodian").
RECITALS
WHEREAS, before the Closing Date the Originator is the owner of the
Receivables.
WHEREAS, pursuant to the Purchase Agreement, the Originator will sell
the Receivables to the Seller.
WHEREAS, pursuant to the Sale and Servicing Agreement, the Seller will
sell the Receivables acquired pursuant to the Purchase Agreement to the Trust.
WHEREAS, pursuant to the Indenture, the Trust will Grant to the
Indenture Trustee, as trustee for the benefit of the Noteholders (and to the
extent set forth in the Sale and Servicing Agreement, the Certificateholder),
all of the Trust's right, title and interest in, to and under the Receivables
and the other assets of the Trust.
WHEREAS, during such time as the Seller, the Trust or the Indenture
Trustee owns or has an interest in the Receivables, such Person or Persons shall
be referred to herein as the "Receivables Holder", and the Custodian shall hold
all Receivables as bailee of the Seller, the Trust and the Indenture Trustee
(for the benefit of the Noteholders and, to the extent set forth in the Sale and
Servicing Agreement, the Certificateholder) during such time as such Person is a
Receivables Holder.
WHEREAS, in connection with the foregoing, the parties hereto desire
to provide for the custody and management of the Receivables transferred
pursuant to the Purchase Agreement, the Sale and Servicing Agreement and the
Indenture (each, a "Transfer").
WHEREAS, Custodian is a financial institution regulated by the
Comptroller of the Currency of the United States.
WHEREAS, the Originator, the Seller, the Trust and the Indenture
Trustee, during such time as each such Person is a Receivables Holder, desire to
have the Custodian (i) hold the Receivables as custodian for each such party,
(ii) take possession of the Contracts and the Receivables Files related to the
Receivables, along with certain other documents specified in this Agreement, as
the custodian for, and bailee of, such Receivables Holder in accordance with the
terms and conditions of this Agreement, and (iii) retain possession of the
Contracts and Receivables Files and such other documents as custodian for and
bailee of the Indenture Trustee. Cus-
todian is willing and able to perform the duties and obligations of a custodian
and bailee as set forth herein.
WHEREAS, Servicer will act as servicer of the Receivables pursuant to
the Sale and Servicing Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Originator, the Servicer, the Seller, the
Trust, the Indenture Trustee and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. Certain capitalized terms used in this
Agreement and not otherwise defined herein shall have the respective meanings
assigned them in Article I of the Sale and Servicing Agreement dated as of July
1, 1998 (the "Sale and Servicing Agreement") among the Trust, the Seller and the
Servicer or in Article I of the Indenture dated as of July 1, 1998 (the
"Indenture") between the Trust and the Indenture Trustee. All references in this
Agreement to Articles, Sections, Subsections and Exhibits are to the same
contained in or attached to this Agreement unless otherwise specified. All terms
defined in this Agreement shall have the defined meanings when used in any
certificate, notice or other document made or delivered pursuant hereto unless
otherwise defined therein.
Section 1.2. INTERPRETATION OF THE AGREEMENT. In interpreting any
mistake or ambiguity contained herein, the parties hereto agree to resolve any
such mistakes or ambiguities in favor of the Indenture Trustee (for the benefit
of the Noteholders, and to the extent set forth in the Sale and Servicing
Agreement, for the benefit of the Certificateholder).
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.1. APPOINTMENT AS CUSTODIAN. Subject to the terms and
conditions hereof, the Seller, the Trust and the Indenture Trustee (for the
benefit of the Noteholders and, to the extent set forth in the Sale and
Servicing Agreement, the Certificateholder), as their interests may appear,
hereby appoint The First National Bank of Chicago, and The First National Bank
of Chicago hereby accepts such appointment, as Custodian to maintain custody of
the Receivables, the Contracts and the Receivables Files during such time as
each such Person is a Receivables Holder.
Section 2.2. MAINTENANCE OF OFFICE. The Custodian agrees to maintain
each Receivables File identified in Section 3.03 of the Sale and Servicing
Agreement and Section 2.04 of the Purchase Agreement at its office located at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or at such of its
other offices in Nevada as Custodian shall designate from time to time after
giving the Originator, the Seller, the Trust, each of the Rating Agencies and
the Indenture Trustee prior written notice, which office shall be maintained
separate from the offices of the Originator, the Seller and the Servicer and
shall be at all times under the exclusive
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dominion of the Custodian. None of the Custodian's employees shall be employees
of the Originator, the Seller, the Servicer or any of the Servicer's Affiliates.
ARTICLE III
CUSTODIAL ARRANGEMENT
Section 3.1. TRANSFER OF RECEIVABLES; DELIVERY OF DOCUMENTS. On or
before the Closing Date, the Originator shall deliver, or cause to be delivered,
to Custodian, the Receivables Files referred to in Section 2.04 of the Purchase
Agreement and Section 3.03 of the Sale and Servicing Agreement, including
without limitation, the Original Contract evidencing each Receivable. Until the
Closing Date and the occurrence of the initial Transfer described below, the
Custodian shall hold the Receivables (including the Receivables Files) as
custodian and bailee for the Originator.
On the Closing Date, the Originator shall deliver to the Custodian a
Transfer Certificate in the form attached hereto as EXHIBIT C evidencing the
Transfer by the Originator to the Seller of the Receivables pursuant to the
Purchase Agreement. Upon receipt of the Transfer Certificate duly executed by
the Originator, the Custodian shall acknowledge the Transfer Certificate as
provided thereon and shall issue to the Seller a Custodian Certification (as
defined below) (the "Seller's Custodian Certification"), as described in SECTION
3.2 below.
On the Closing Date, upon receipt of the Seller's Custodian
Certification, the Seller shall deliver to the Custodian a Transfer Certificate
in the form attached hereto as EXHIBIT C (a "Transfer Certificate") evidencing
the Transfer by the Seller to the Trust of the Receivables pursuant to the Sale
and Servicing Agreement, together with the Seller's Custodian Certification.
Upon receipt of the Transfer Certificate duly executed by the Seller and the
Seller's Custodian Certification, the Custodian shall acknowledge the Transfer
Certificate as provided thereon and shall issue to the Trust a Custodian
Certification (the "Trust's Custodian Certification"), as described in SECTION
3.2 below, and shall cancel the Seller's Custodian Certification.
On the Closing Date, upon receipt of the Trust's Custodian
Certification, the Trust shall deliver to the Custodian a Transfer Certificate
in the form attached hereto as EXHIBIT C evidencing the Transfer by the Trust to
the Indenture Trustee of the Receivables pursuant to the Indenture, together
with the Trust's Custodian Certification. Upon receipt of the Transfer
Certificate duly executed by the Trust and the Trust's Custodian Certification,
the Custodian shall acknowledge the Transfer Certificate as provided thereon and
shall issue to the Indenture Trustee a Custodian Certification (the "Trustee's
Custodian Certification"), as described in SECTION 3.2 below, and shall cancel
the Trust's Custodian Certification.
Custodian hereby acknowledges receipt of the Purchase Agreement, the
Sale and Servicing Agreement and the Indenture. Custodian further acknowledges
that, on the Closing Date and pursuant to this Agreement, the Purchase
Agreement, the Sale and Servicing
3
Agreement and the Indenture, Custodian will be given possession of the
Receivables Files relating to the Receivables constituting a portion of the
Collateral, each of which Receivables will be described specifically on Schedule
A to each of the Purchase Agreement, the Sale and Servicing Agreement and the
Indenture, a copy of which will be delivered to Custodian simultaneously with
the delivery of the Receivables Files relating thereto. On and after the Closing
Date and the completion of the Transfers described above, and so long as this
Agreement shall remain in effect, Custodian shall hold the Receivables Files now
and hereafter, from time to time, in its sole custody and control as custodian
for and bailee of the Indenture Trustee, as trustee for the benefit of the
Noteholders and the Certificateholder (as their interests may appear), unless
and until released from the lien of the Indenture and otherwise in accordance
with the Sale and Servicing Agreement, in which event, Custodian shall hold the
Receivables and the Receivables Files as trustee and bailee for the benefit of
the applicable Receivables Holder.
Section 3.2. CERTIFICATION. Upon delivery to Custodian of the
Receivables Files, as specified in SECTION 3.1, Custodian shall review the same
on account of the Indenture Trustee in accordance with the terms of SECTION 3.05
of the Sale and Servicing Agreement and (subject to Section 4.1 hereof) shall
confirm to the Indenture Trustee that all the documents in the Receivables Files
required to be delivered under SECTION 3.1 (being the documents described in
SECTION 3.03 of the Sale and Servicing Agreement) have been delivered. Custodian
shall hold such documents on behalf of the Indenture Trustee pursuant to this
Agreement. Upon consummation of a Transfer in accordance with ARTICLE IV hereof,
Custodian shall, with respect to the Receivables transferred to the applicable
Receivables Holder in connection with the applicable Transfer, as described in
SECTION 3.1 hereof, number, execute and deliver to the applicable Receivables
Holder (with a copy to the Servicer) one or more certifications (each, a
"CUSTODIAN CERTIFICATION") in the form attached hereto as EXHIBIT A. Upon
issuance of a Custodian Certification with respect to any Transfer, the
Custodian Certification relating to such Receivable previously delivered shall
be deemed and marked cancelled with respect to such Receivable.
Section 3.3. RELEASE OF RECEIVABLES FILES. From time to time and as
provided in the Sale and Servicing Agreement, Custodian is hereby authorized,
upon written request of Servicer (with the approval of the Indenture Trustee,
which approval shall not be unreasonably withheld) in the form annexed hereto as
EXHIBIT B, to release to the Servicer the Receivables File related to any
Receivable or the specific documents identified in such request to the Servicer.
All documents so released to the Servicer shall be held by it in trust for the
benefit of the Indenture Trustee (for the benefit of the Noteholders and, to the
extent set forth in the Indenture and the Sale and Servicing Agreement, the
Certificateholder). Servicer shall return the Receivables File, or such other
documents which have been released to Servicer, to Custodian when Servicer's
need therefor in connection with a foreclosure, modification, termination or
repossession no longer exists, unless the Receivable shall be satisfied in full
or liquidated, in which case, upon receipt of a certification to such effect
from Servicer to Custodian in the form annexed hereto as EXHIBIT B, the related
Receivables File shall be released by Custodian to Servicer, and Custodian shall
thereupon reflect any such liquidation on the related Receivable. Pursuant to
Section 4.07 of the Sale and Servicing Agreement, (i) the Servicer shall return
a Receivables File released to it within five (5) Business Days of such release
and (ii) if such Receivables File has not been returned to the Custodian within
such five (5) Business Day period, the Servicer shall repurchase the related
Receivable.
Notwithstanding anything herein or in any other Basic Document to the
contrary, (i) the Servicer shall return any Receivables File released to it in
connection with a modification or extension of a Receivable to the Custodian on
the same day such file is released and (ii) the
4
Custodian shall not release a Receivables File to the Servicer in connection
with a modification or extension of a Receivable if, after giving effect to the
release of such Receivables File, the aggregate Principal Balance of all
Receivables having released Receivables Files in connection with modifications
and extensions exceeds $500,000.
Section 3.4. PURCHASE; PAYMENT IN FULL. Upon the purchase of any
Receivable pursuant to Section 3.02, 3.05 or 4.07 of the Sale and Servicing
Agreement or Section 6.02 of the Purchase Agreement, or upon the payment in full
of any Receivable, which shall be evidenced by Custodian's receipt of the
request for release in the form annexed hereto as EXHIBIT B, Custodian shall
promptly release the related Receivables File to Servicer and the security
interest in such Receivable and related Receivables File granted by the Trust to
the Indenture Trustee pursuant to the Indenture shall terminate without any
further action by the Custodian, the Originator, the Seller or the Indenture
Trustee.
Section 3.5. OTHER DUTIES OF CUSTODIAN. The Custodian shall have and
perform the other following powers and duties:
(a) SAFEKEEPING. To segregate the Receivables and Receivables Files
from all other receivables, leases and installment sale contracts and
similar records in its possession, to identify the Receivables Files as
being held and to hold the Receivables Files for and on behalf of the
Receivables Holders (which, on and after the Closing Date and after
completion of the Transfers described in SECTION 3.1, shall be the
Indenture Trustee for the benefit of the Noteholders and the
Certificateholder, as their interests may appear), to maintain accurate
records pertaining to each Contract and Receivable in the Receivables
Files, to provide monthly a list of all Receivable Files held by it,
together with a current exception report, and to provide such information
as is necessary to enable the Servicer to deliver the reports and
notifications required by Section 4.09 of the Sale and Servicing Agreement.
Custodian will promptly report to the Indenture Trustee any failure on its
part to hold the Receivables Files as herein provided and promptly take
appropriate action to remedy any such failure.
(b) ADMINISTRATION; REPORTS. In general, to attend to all
non-discretionary details in connection with maintaining custody of the
Receivables Files on behalf of the Receivables Holders as may be expressly
provided herein or as may be required or customary for a custodian or
bailee. In addition, Custodian shall assist the Indenture Trustee and the
Servicer (at Servicer's cost) generally in the preparation of reports to
holders or to regulatory bodies to the extent necessitated by Custodian's
custody of the Receivables Files.
Section 3.6. ACCESS TO RECORDS. Custodian shall permit the Indenture
Trustee and its duly authorized agents, attorneys or auditors and those Persons
permitted access pursuant to Section 4.12 of the Sale and Servicing Agreement to
inspect the Receivables Files and the books and records maintained by the
Custodian pursuant hereto at such reasonable times as they may reasonably
request, subject only to compliance with the terms of the Sale and Servicing
Agreement.
5
Section 3.7. INSTRUCTIONS; AUTHORITY TO ACT. The Custodian shall
be deemed to have received proper instructions with respect to the
Receivables Files upon its receipt of written instructions signed by a
Responsible Officer of the Indenture Trustee and may conclusively rely on
such instructions. In addition, the Custodian may conclusively rely upon any
release request delivered to it in the form attached as EXHIBIT B hereto duly
executed by an authorized officer of the Servicer as set forth on Annex 1 to
Exhibit B and, if required by the terms thereof, by the Indenture Trustee.
ARTICLE IV
OWNERSHIP AND TRANSFER OF RECEIVABLES
Section 4.1. TRANSFER OF RECEIVABLES. The transfer of Receivables in
connection with any Transfer shall occur in the following manner:
(i) Custodian shall, promptly upon receiving a Transfer
Certificate relating to the transfer of Receivables pursuant to a
Transfer:
(a) determine whether each document in the Receivables File
listed in Section 2.04 of the Purchase Agreement and Section 3.03
of the Sale and Servicing Agreement with respect to each
Receivable listed on the Receivable Schedule has been delivered
to Custodian, and whether Custodian is able to deliver a
Custodian Certification;
(b) promptly advise the applicable Receivables Holder, the
Indenture Trustee, the Originator, the Seller and each of the
Rating Agencies by telephone or by facsimile transmission if it
determines that any document referred to in (a) above has not
been so delivered and take no further action under this SECTION
4.1 until it determines that such documents have been so
delivered;
(c) upon determining that such documents have been so
delivered, Custodian shall issue and deliver to applicable
Receivables Holder the Custodian Certification in accordance with
SECTIONS 3.1 and 3.2 of this Agreement; and
(d) Custodian shall hold the Receivables Files for each
Receivables Holder subject to satisfaction of the conditions
precedent with respect to the applicable Transfer.
Section 4.2. SUBSTITUTION AND PURCHASE OF RECEIVABLES. The purchase of
Receivables pursuant to Section 6.02 of the Purchase Agreement and Section 3.02,
Section 3.05(b) or Section 4.07 of the Sale and Servicing Agreement shall occur
in the following manner:
(i) On or before the date of such purchase, the Servicer shall
send the Indenture Trustee notice, with a copy to Custodian,
indicating the Receivables to be purchased and the aggregate purchase
prices to be paid on such date.
6
(ii) Upon receiving written confirmation in the form annexed
hereto as EXHIBIT B, from the Seller and the Trust that they have
received the applicable Purchase Amount, Custodian shall return to
the applicable party (as identified to the Custodian by the Indenture
Trustee) Receivables Files related to the Receivables purchased on
such date.
Section 4.3. NO SERVICE CHARGE FOR TRANSFER OF RECEIVABLES. No service
charge shall be made for any transfer of Receivables, but Custodian may require
payment from the Servicer of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer of Receivables.
Section 4.4. DEFEASANCE. When a Receivable is purchased by the
Servicer, the Seller or the Originator pursuant to the terms of the Purchase
Agreement and the Sale and Servicing Agreement, the applicable Receivables
Holder's interest in such Receivable and all Collateral with respect to such
Receivable shall terminate, such Receivable and related Collateral shall be
conveyed to the Servicer, the Seller or the Originator, as applicable, and the
Receivables Holder's rights, title and interest therein shall cease, and the
Indenture Trustee shall execute such instruments acknowledging termination and
discharge of such pledge and security interest as are required by applicable
law.
ARTICLE V
CUSTODIAN
Section 5.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CUSTODIAN.
Custodian hereby represents and warrants to, and covenants with, the Originator,
the Seller, the Servicer, the Trust and the Indenture Trustee, that as of the
date of each Custodian Certification:
(i) Custodian is duly organized, validly existing and in good
standing under the laws of the United States;
(ii) Custodian has the full power and authority to hold each
Receivable, to hold title to the Receivables as custodian on behalf of
the Receivables Holders, and to execute, deliver and perform, and to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of
Custodian, enforceable against it in accordance with its terms, except
as enforcement of such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(iii) Neither the execution and delivery of this Agreement,
the delivery of Receivables to Custodian, the issuance of the
Custodian Certifications, the consummation of the transactions
contemplated hereby or thereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement will conflict with
or result in a breach of any of the terms, conditions or provisions
of Custo-
7
dian's charter or bylaws or any agreement or instrument to which
Custodian is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment
or decree to which Custodian or its property is subject; except that
no representation or warranty is made as to compliance with laws and
regulations, other than those of the United States and the State of
Illinois, relating to qualifications, licensure or regulation of
custodians of receivables originated in states other than Illinois;
(iv) Custodian does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(v) To Custodian's knowledge after due inquiry, there is no
litigation pending or threatened, which if determined adversely to
Custodian, would adversely affect the execution, delivery or
enforceability of this Agreement, or any of the duties or obligations
of Custodian thereunder, or which would have a material adverse effect
on the financial condition of Custodian;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by Custodian of or compliance by Custodian with this
Agreement or the consummation of the transactions contemplated hereby
or thereby; except that no representation or warranty is made as to
consents, approvals, authorizations or orders of any courts or
governmental agencies or bodies, other than those of the United States
and the State of Illinois, relating to qualifications, licensure or
regulation of custodians of receivables originated in states other
than Illinois;
(vii) Upon written request of the Indenture Trustee,
Custodian shall take such steps as requested by the Indenture
Trustee to protect or maintain any interest in any Receivable; and
(viii) The Custodian has not been notified by any party other
than the Originator, the Seller, the Trust and the Indenture Trustee
that any such third party claims an interest in the Receivables or the
Receivables Files or is any such party requesting the Custodian to act
as a bailee with respect to the Receivables or the Receivables Files.
Custodian makes no representations or warranties as to the validity,
legality, sufficiency, enforceability, perfection, genuineness or prior recorded
status of any of the documents contained in each Receivables File or the
collectability, insurability, effectiveness or suitability of any Receivable.
Section 5.2. CHARGES AND EXPENSES. The Seller will pay all fees of
Custodian in connection with the performance of its duties hereunder in
accordance with written agreements to be entered into from time to time between
the parties hereto and Custodian, including fees and expenses of counsel
incurred by Custodian in the performance of its duties hereunder; provided,
8
however, that (i) Custodian shall in no event acquire any lien upon any
Receivable deposited under this Agreement or the Purchase Agreement or the Sale
and Servicing Agreement, or any claim against any Receivables Holder by reason
of the failure of the Seller to pay any of such charges or expenses and (ii) in
the event the Seller fails to pay the fees and expenses of Custodian as set
forth in such written agreements, Custodian shall have no obligation to take
actions or incur costs in connection with this Agreement unless the Seller or
another Person has made adequate provision for payment of Custodian's fees and
expenses. The Seller shall indemnify the Custodian against payment of any
documentary stamp taxes, intangible taxes and other similar taxes, penalties and
interest incurred in connection with the Receivables and the transactions
contemplated hereby.
Section 5.3. NO ADVERSE INTERESTS. Custodian coven-ants and warrants
to the Originator, the Seller, the Servicer, the Trust and the Indenture
Trustee, that as of the date of each Custodian Certification: (i) it holds no
adverse interest, by way of security or otherwise, in any Receivable; and (ii)
the execution of this Agreement and the creation of the custodial relation-ship
hereunder does not create any interest, by way of security or otherwise, of
Custodian in or to any Receivable, other than Custodian's rights as custodian
hereunder.
Section 5.4. INSPECTIONS. Upon reasonable prior written notice to
Custodian, the Servicer, the Seller, the Indenture Trustee and such Person's
agents, accountants, attorneys and auditors will be permitted during normal
business hours to examine Custodian's documents, records and other papers in
possession of or under the control of Custodian relating to the Receivables.
Section 5.5. INSURANCE. Custodian shall, at its own expense, maintain
at all times during the existence of this Agreement and keep in full force and
effect, (1) fidelity insurance, (2) theft of documents insurance, and (3)
forgery insurance subject to deductibles, all as is customary for amounts and
with insurance companies reasonably acceptable to the Servicer and the Indenture
Trustee. A certificate of the respective insurer as to each such policy or a
blanket policy for such coverage shall be furnished to the Servicer or the
Indenture Trustee, upon request, containing the insurer's statement or
endorsement that such insurance shall not terminate prior to receipt by such
party, by registered mail, of 10 days advance notice thereof.
Section 5.6. LIMITATION OF LIABILITY. Custodian assumes no obligation,
and shall be subject to no liability, under this Agreement, except for its
negligence or willful misconduct in the performance of the obligations and
duties as are specifically set forth herein. Custodian shall not be liable for
any action or non-action by it in reliance on advice of counsel believed by it
in good faith to be competent to give such advice. Custodian may rely and shall
be protected in acting upon any written notice, order, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
Section 5.7. INDEMNIFICATION. Servicer agrees to indemnify Custodian
against, and to hold it harmless from, any liabilities, and any related
out-of-pocket expenses, which it may incur in connection with this Agreement,
the Sale and Servicing Agreement, the Purchase Agreement or the Custodian
Certifications, other than any liabilities and expenses arising out of
Custodian's negligence or willful misconduct. The Custodian agrees to indemnify,
defend and hold harmless the Indenture Trustee against any liability to
Noteholders and/or Certificateholder
9
arising out of the negligence or willful misconduct of the Custodian (a) in the
preparation or execution of any Custodian Certification or (b) resulting in the
loss of Receivables Files in the custody of the Custodian. This indemnity shall
include indemnification as to reasonable attorneys' fees and costs, whether or
not suit be brought, and including such fees and costs on appeal. The Indenture
Trustee shall give prompt written notice to the Custodian of any claim for which
indemnity is or may be sought and shall afford to the Custodian the opportunity
to defend such claim.
Section 5.8. FURTHER RIGHTS OF CUSTODIAN. If the Custodian is at any
time uncertain of its obligations hereunder, the Custodian, upon prior written
notice to the Indenture Trustee, the Originator, the Seller and the Servicer,
may refrain from taking any action with respect to such matter until such
uncertainty is removed. If conflicting demands are made on the Custodian with
respect to any matter, the Indenture Trustee's demand shall control, except
during the period prior to the issuance of the Trustee's Custodian Certification
pursuant to Section 3.1 hereof, when the applicable Receivables Holder's demand
shall control and the Custodian shall have the right to rely on such controlling
demand. The Custodian shall have the right in any such case to interplead any or
all of the documents contained in the Receivables Files in a court of competent
jurisdiction and, upon delivery thereof, shall have no further obligations
thereunder with respect to such documents.
(a) The obligations of the Custodian shall be determined solely by the
express provisions of this Agreement. No representation, warranty, covenant
or obligation of the Custodian shall be implied with respect to this
Agreement or the Custodian's service hereunder. Without limiting the
generality of the foregoing statement, except as specifically required
herein, the Custodian shall be under no obligation to inspect, review or
examine the Receivables Files to determine that the contents thereof are
complete, genuine, enforceable or appropriate for the represented purpose
or that they have been actually recorded or filed in required offices or
that they are other than what they purport to be on their face.
(b) No provision of this Agreement shall require the Custodian to
spend or risk its own funds or otherwise incur financial liability in
performance of its duties under this Agreement unless, pursuant to Section
5.2 hereof, adequate provision has been made for the reimbursement of the
Custodian's expenses hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. AMENDMENT. This Agreement may be amended from time to
time by Custodian, the Originator, the Seller, the Servicer, the Trust and the
Indenture Trustee by written agreement signed by such parties and upon
satisfaction of the Rating Agency Condition.
Section 6.2. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK GOVERNING AGREEMENTS MADE AND
TO BE PERFORMED THEREIN, AND
10
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.3. NOTICES. All demands, notices and communication hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by overnight mail, certified mail or registered mail,
postage prepaid, to (i) in the case of the Servicer and the Originator,
Caterpillar Financial Services Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (ii) in the case of the Seller, Caterpillar Financial
Funding Corporation, Greenview Plaza, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, (iii) in the case of the Trust, c/o Chase Manhattan Bank
Delaware, as Owner Trustee, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (iv)
in the case of the Indenture Trustee, The First National Bank of Chicago, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (v) in the case of the
Custodian, The First National Bank of Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and (vi) in the case of the Rating Agencies, at
their respective addresses set forth in the Sale and Servicing Agreement, and,
in each such case, at such other addresses as may hereafter be furnished to each
party hereto in writing.
Section 6.4. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions or terms of this
Agreement.
Section 6.5. NO PARTNERSHIP. Nothing herein contained shall be deemed
or construed to create a co-partnership or joint venture between Custodian and
the other parties hereto.
Section 6.6. TERMINATION OF AGREEMENT. This Agreement shall be
terminated upon termination of the Sale and Servicing Agreement or at the option
of Indenture Trustee on 30 days written notice to Custodian, the Seller, the
Trust and the Originator. Concurrently with, or as soon as practicable after,
the termination of this Agreement, Custodian shall redeliver the Receivables
Files to the Indenture Trustee at such place as the Indenture Trustee may
reasonably designate and until such redelivery, Custodian shall hold such
Receivables Files in its sole custody and control as custodian for and bailee of
the Indenture Trustee (for the benefit of the Noteholders and, to the extent set
forth in the Sale and Servicing Agreement, the Certificateholder). In connection
with the administration of this Agreement, Custodian and the Indenture Trustee
may agree from time to time upon the interpretation of the provisions of this
Agreement, as such interpretation may in their opinion be consistent with the
general tenor and purposes of this Agreement, any such interpretation to be
signed and annexed hereto.
Section 6.7. COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 6.8. ASSIGNMENT. No party hereto shall sell, pledge, assign or
otherwise transfer this Agreement without the prior written consent of the other
parties hereto and satisfaction of the Rating Agency Condition.
11
Section 6.9. HEADINGS. Section headings are for reference purposes
only and shall not be construed as a part of this Agreement.
Section 6.10. ADVICE OF COUNSEL. Custodian shall be entitled to rely
and act upon advice of counsel with respect to its performance hereunder as
Custodian and shall be without liability for any action reasonably taken
pursuant to such advice, provided that such action is not in violation of
application federal or state law. This paragraph shall not negate Custodian's
obligations under Section 5.7.
Section 6.11. NO PETITION. Custodian, by entering into this Agreement,
hereby covenants and agrees that it will not at any time institute against the
Seller or the Trust, or join in any institution against the Seller or the Trust
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the other Basic Documents.
Section 6.12. RESIGNATION OF CUSTODIAN. (a) The Custodian may at any
time resign and terminate its obligations under this Agreement upon at least 90
days' prior written notice to the Servicer and the Indenture Trustee. The
Custodian may be removed at any time at the written request of the Indenture
Trustee. In the event of such resignation or removal, the Indenture Trustee
shall appoint a successor custodian acceptable to the Servicer, which
appointment must satisfy the Rating Agency Condition. If the Servicer fails to
appoint a successor custodian within 30 days, the Indenture Trustee shall
appoint a successor custodian. In no event shall the resignation of the
Custodian be effective until a successor custodian is duly appointed hereunder.
One original counterpart of such instrument of appointment shall be delivered to
each of the Servicer, the Custodian and the successor custodian. The Servicer
shall notify the Rating Agencies of any such resignation or removal and the
appointment of a successor custodian.
(b) In the event of any resignation, the Custodian shall promptly
transfer to the successor custodian (or to the Indenture Trustee if no
successor custodian has been appointed) all of the Receivables (including
the Receivables Files) in its possession under this Agreement and take such
other action as may be requested by the Indenture Trustee to effect the
transfer of the Custodian's Receivables Files to the successor custodian,
which shall provide a written receipt for all such transferred documents
and instruments. On completion of such transfer, the Custodian shall be
relieved of all further responsibilities and obligations hereunder.
Section 6.13. LIMITATION OF LIABILITY OF INDENTURE TRUSTEE AND OWNER
TRUSTEE. (a) Notwithstanding anything contained herein to the contrary, in no
event shall The First National Bank of Chicago in its individual capacity have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Chase Manhattan Bank Delaware, not in
its individual capacity but solely as Owner Trustee, and in no event shall
Chase Manhattan Bank Delaware
12
have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Article VI, VII
and VIII of the Trust Agreement.
13
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of
the day and year first above written.
Originator
----------
CATERPILLAR FINANCIAL SERVICES CORPORATION,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Servicer
--------
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Seller
------
CATERPILLAR FINANCIAL FUNDING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CATERPILLAR FINANCIAL ASSET TRUST ▇▇▇▇-▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK DELAWARE,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name:
Title:
INDENTURE TRUSTEE
-----------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Assistant Secretary
CUSTODIAN
---------
THE FIRST NATIONAL BANK OF CHICAGO,
as Custodian
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Assistant Secretary
EXHIBIT A
CUSTODIAN CERTIFICATION
Certification No._____
[DATE]
To: [SELLER]
[TRUST]
[INDENTURE TRUSTEE]
Re: Custodial Agreement, dated as of July 1, 1998 (the "CUSTODIAL
AGREEMENT"), by and among Caterpillar Financial Services
Corporation (the "Originator"), Caterpillar Financial Services
Corporation, as Servicer (the "Servicer"), Caterpillar Financial
Funding Corporation (the "Seller"), Caterpillar Financial Asset
Trust 1998-A (the "Trust"), The First National Bank of Chicago,
as Indenture Trustee (the "Indenture Trustee") and The First
National Bank of Chicago, as Custodian (the "Custodian")
Gentlemen:
In accordance with the provisions of SECTION 3.2 of the
above-referenced Custodial Agreement, the undersigned, as Custodian, hereby
certifies that it has received all of the items listed in SECTION 3.1 of the
Custodial Agreement with respect to each Receivable identified on the Receivable
Schedule (the "Receivable Schedule") attached hereto dated as of July 1, 1998.
The undersigned, as Custodian, confirms that the Receivable number in each
Receivables File conforms to the respective Receivable number listed on the
Receivable Schedule. Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Custodial Agreement.
Custodian further certifies that as to each Receivable, Custodian
holds the Receivable in its name as custodian for the benefit of [the Seller]
[the Trust] [the Indenture Trustee], without written notice (a) of any adverse
claims, liens or encumbrances, (b) that any Receivable was overdue or has been
dishonored, (c) of evidence on the face of any Receivable or other document in
the Receivables File of any security interest therein, or (d) of any defense
against or claim to the Receivable by any other party.
Custodian makes no representations or warranties as to the validity,
legality, sufficiency, enforceability, genuineness or prior recorded status of
any of the documents contained in each Receivables File or the collectability,
insurability, effectiveness or suitability of any Receivable.
Custodian confirms that it holds each Receivable and the other
documents in the related Receivables File for the benefit of [the Seller][the
Trust][the Indenture Trustee].
Upon repurchase of the Receivables to which this Custodian
Certification relates and payment of the applicable repurchase price, the
Receivables to which this Custodian Certifi-
A-1
cation relates shall be returned and released by Custodian to the Person paying
such repurchase price, and this Custodian Certification shall be and be deemed
to be canceled by Custodian and of no force and effect.
------------------------------------
as Custodian
By
------------------------------------
Name:
Title:
A-2
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
To: [Custodian]
Re: Custodial Agreement, dated as of July 1, 1998, by and among
Caterpillar Financial Services Corporation (the
"Originator"), Caterpillar Financial Services Corporation,
as Servicer (the "Servicer"), Caterpillar Financial Funding
Corporation (the "Seller"), Caterpillar Financial Asset
Trust 1998-A (the "Trust"), The First National Bank of
Chicago, as Indenture Trustee (the "Indenture Trustee")
and The First National Bank of Chicago, as Custodian
("Custodian")
In connection with the administration of the Receivables held by you
as Custodian under the above-referenced Custodial Agreement, [_________], on
behalf of [________], requests the release, and acknowledges receipt, of the
following for the Receivable described below, for the reason indicated:
A. DOCUMENTS RELEASED
_____ 1a. Installment Sale Contract or Lease b. Principal Balance ______
_____ 2. Other documents: _________________________________
__________________________________________________
__________________________________________________
__________________________________________________
B. OBLIGOR'S NAME, ADDRESS & ZIP CODE:
C. RECEIVABLE NUMBER:
D. REASON FOR REQUESTING DOCUMENTS (CHECK ONE)
_____ 1. Receivable Paid in Full.
_____ 2. Receivable Repurchased Pursuant to the Purchase Agreement and/or
the Sale and Servicing Agreement.
_____ 3. Receivable Liquidated.
_____ 4. Receivable in Foreclosure or Repossession Proceedings.
_____ 5. Receivable to be modified or extended.
If box 1, 2 or 3 above is checked, and if all or part of
Receivables File was previously released to us, please release to us
our previous receipt on file
B-1
with you, as well as any additional documents in your possession
relating to the above specified Receivable. If box 1,2 or 3 is
checked, evidence of receipt of payment by the Indenture Trustee is
required prior to release.
If box 4 or 5 above is checked, upon our return of all of the
above documents to you as Custodian, please acknowledge your receipt
by signing in the space indicated below, and returning this form.
If box 5 above is checked, after giving effect to such release,
the aggregate Principal Balance of all Receivables released in
connection with modifications and extensions shall not exceed
$500,000. In addition, upon return of the Receivables File, we are
deemed to certify that the Receivables File as returned contains the
related Receivable as so modified and extended.
If box 1, 2 or 3 above is checked, this request is only valid if
also executed by the Seller and the Indenture Trustee.
Documents released hereby in connection with a modification or
extension must be returned to the Custodian on the same Business Day of release.
CATERPILLAR FINANCIAL SERVICES
CORPORATION, as Servicer
By
-------------------------------------
Name:
Title:
Date:
[ ]
-----------------------------------
By
-------------------------------------
Name:
Title:
Date:
Documents returned to Custodian:
-------------------------------------
as Custodian
By
----------------------------------
Name:
Title:
Date:
B-2
Annex 1
Authorized Officers of Servicer
B-3
EXHIBIT C
Transfer Certificate
--------------------
The First National Bank of Chicago,
as Custodian under the [DATE]
Custodial Agreement (defined below)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Custodial Agreement, dated as of July 1, 1998 (the
"Custodial Agreement"), by and among Caterpillar Financial
Services Corporation (the "Originator"), Caterpillar
Financial Services Corporation, as Servicer (the
"Servicer"), Caterpillar Financial Funding Corporation (the
"Seller"), Caterpillar Financial Asset Trust 1998-A (the
"Trust"), The First National Bank of Chicago, as Indenture
Trustee (the "Indenture Trustee") and The First National
Bank of Chicago, as Custodian ("Custodian")
To whom it may concern:
Pursuant to Section 3.1 of the above-referenced Custodial Agreement
(capitalized terms used herein but not otherwise defined shall have the same
meanings assigned to such terms in the Custodial Agreement), we hereby advise
you of the Transfer by the undersigned to [the Seller][the Trust][the Indenture
Trustee] of the Receivables identified on the Receivable Schedule[s] attached
[hereto] [to the [Seller's Custodian Certification] [to the Trust's Custodian
Certification] with respect to the undersigned which we are delivering to you
for cancellation]. You are instructed to hold such Receivables for [the Seller]
[the Trust] [the Indenture Trustee] and to deliver to [the Seller][the
Trust][the Indenture Trustee] a [Seller's] [Trust's] [Trustee's] Custodian
Certification acknowledging such transfer of these Receivables.
Very truly yours,
By
---------------------------------
Name:
Title:
The Custodian hereby acknowledges
receipt of the foregoing
instructions and agrees to hold
such Receivables for [the Seller]
[the Trust] [the Indenture Trustee].
THE FIRST NATIONAL BANK OF CHICAGO
By:
----------------------------------
Name:
Title:
C-1