EXHIBIT 10.3
FORM OF CUSTODIAL AGREEMENT
================================================================================
FORM OF
CUSTODIAL AGREEMENT
among
CATERPILLAR FINANCIAL SERVICES CORPORATION
Originator and Servicer
CATERPILLAR FINANCIAL FUNDING CORPORATION
Seller
CATERPILLAR FINANCIAL ASSET TRUST [_______]-[_______]
Issuer
and
[____________________]
Indenture Trustee and Custodian
DATED AS OF [______________], 199[__]
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1. Definitions............................................... 2
Section 1.2. Interpretation of the Agreement........................... 2
ARTICLE II
CUSTODIAL ARRANGEMENT
Section 2.1. Appointment as Custodian.................................. 2
Section 2.2. Maintenance of Office..................................... 3
ARTICLE III
CUSTODIAL ARRANGEMENT
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......................................... 6
Section 3.7. Instructions; Authority to Act............................ 6
ARTICLE IV
OWNERSHIP AND TRANSFER OF RECEIVABLES
Section 4.1. Transfer of Receivables................................... 6
Section 4.2. Substitution and Purchase of Receivables.................. 7
Section 4.3. No Service Charge for Transfer of Receivables............. 7
Section 4.4. Defeasance................................................ 7
ARTICLE V
CUSTODIAN
Section 5.1. Representations, Warranties and
Covenants of Custodian................................. 8
Section 5.2. Charges and Expenses...................................... 9
Section 5.3. No Adverse Interests...................................... 9
Section 5.4. Inspections............................................... 10
Section 5.5. Insurance................................................. 10
Section 5.6. Limitation of Liability................................... 10
Section 5.7. Indemnification........................................... 10
Section 5.8. Further Rights of Custodian............................... 10
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Amendment................................................ 11
Section 6.2. Governing Law............................................ 11
Section 6.3. Notices.................................................. 11
Section 6.4. Severability of Provisions............................... 12
Section 6.5. No Partnership........................................... 12
Section 6.6. Termination of Agreement................................. 12
Section 6.7. Counterparts............................................. 12
Section 6.8. Assignment............................................... 12
Section 6.9. Headings................................................. 12
Section 6.10. Advice of Counsel........................................ 12
Section 6.11. No Petition.............................................. 12
Section 6.12. Resignation of Custodian................................. 13
Section 6.13. Limitation of Liability of
Indenture Trustee and Owner Trustee...................... 13
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 [_________], [______], 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
[_______]-[_______] (the "Trust"), [____________________], as Indenture Trustee
under the Indenture (the "Indenture Trustee") and [__________________], 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 Certificateholders),
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 Certificateholders) during such time as such Person is
a Receivables Holder. References in this Agreement to the Receivables Holder,
when referring to transfers or possession of, or security interests in,
Receivables, shall refer to Custodian, in its capacity as custodian for the
benefit of such 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. Custodian 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
[___________], [_______] (the "Sale and Servicing Agreement") among the Trust,
the Seller and the Servicer or in Article I of the Indenture dated as of
[___________], [_______] (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 Certificateholders).
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 Certificateholders), as their interests may appear,
hereby appoint [____________________], and [____________
2
________] 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 dominion of the Custodian. None of
the Custodian's employee's 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 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 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
3
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 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 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 Certificateholders (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 Originator) 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
4
set forth in the Indenture and the Sale and Servicing Agreement, the
Certificateholders). 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 of a Receivable to the Custodian on the same day
such file is released and (ii) the Custodian shall not release a Receivables
File to the Servicer in connection with a modification 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 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 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 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 Certificateholders, 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.
5
(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.
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;
6
(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
(ii) 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.
(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 revert
to the Originator 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:
7
(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 Custodian'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 [________], relating to qualifications, licensure or regulation of
custodians of receivables originated in states other than [________];
(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
[________], relating to qualifications, licensure or regulation of
custodians of receivables originated in states other than [________];
8
(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,
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 covenants 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 relationship
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,
9
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 Certificateholders 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.
(b) 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
10
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.
(c) 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 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
[____________________], as Owner Trustee, [____________________], (iv) in the
case of the Indenture Trustee, [____________________], [____________________],
(v) in the case of the Custodian, [____________________],
[____________________], 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.
11
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 Certificateholders). 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.
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
12
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, this
Agreement has been executed by [____________________], not in its individual
capacity but solely in its capacity as Indenture Trustee and in no event shall
[____________________] 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 [____________________], not in its
individual capacity but solely as Owner Trustee, and in no event shall
[____________________] 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
--------------------------------------
Name:
Title:
Servicer
--------
CATERPILLAR FINANCIAL
SERVICES CORPORATION,
as Servicer
By
--------------------------------------
Name:
Title:
Seller
CATERPILLAR FINANCIAL
FUNDING CORPORATION
By
--------------------------------------
Name:
Title:
CATERPILLAR FINANCIAL
ASSET TRUST [_______]-[___],
[________________], not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement
By
--------------------------------------
Name:
Title:
INDENTURE TRUSTEE
[____________________],
as Indenture Trustee
By
--------------------------------------
Name:
Title:
CUSTODIAN
[____________________],
as Custodian
By
--------------------------------------
Name:
Title:
EXHIBIT A
---------
CUSTODIAN CERTIFICATION
Certification No._____
[______________], [_____]
To: [SELLER]
[TRUST]
[INDENTURE TRUSTEE]
Re: Custodial Agreement, dated as of [______________], [_____] (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 [_________]-[___] (the "Trust"),
[____________________], as Indenture Trustee (the "Indenture
Trustee") and [____________________], 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
[_____________], [_____]. 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.
A-1
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]. Custodian hereby acknowledges and agrees that it
is holding such Receivables now and hereafter, from time to time, in its custody
or control as bailee for the [the Seller][the Trust][the Indenture Trustee], if
the transfer of Receivables is deemed not to be an absolute transfer of such
Receivables, subject to the continuing pledge and security interest granted by
[Originator][the Seller][the Trust] to [the Seller][the Trust][the Indenture
Trustee] under the [Purchase Agreement] [Sale and Servicing
Agreement][Indenture].
Upon repurchase or substitution of the Receivables to which this
Custodian Certification relates and payment of the applicable repurchase price,
the Receivables to which this Custodian Certification relates shall be returned
and released by Custodian to [the Seller][the Trust][the Indenture Trustee], 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 [___________], [_____], 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
[__________]-[____] (the "Trust"), [____________________], as
Indenture Trustee (the "Indenture Trustee") and
[____________________], 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 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.
B-1
_____ 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 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:
B-2
Documents returned to Custodian:
-----------------------------------------
as Custodian
By
--------------------------------
Name:
Title:
Date:
B-3
Annex 1
Authorized Officers of Servicer
B-4
EXHIBIT C
TRANSFER CERTIFICATE
[___________] [__],
[______]
[____________________],
as Custodian under the
Custodial Agreement (defined below)
[____________________]
[____________________]
Re: Custodial Agreement, dated as of [____________], [______] (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 [_______]-[_____] (the "Trust"),
[____________________], as Indenture Trustee (the "Indenture
Trustee") and [____________________], 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 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:
C-1