AMENDED AND RESTATED TRUST AGREEMENT among CATERPILLAR FINANCIAL FUNDING CORPORATION Depositor and CHASE BANK USA, NATIONAL ASSOCIATION, Owner Trustee Dated as of June 28, 2006
EXHIBIT
4.2
AMENDED
AND RESTATED TRUST AGREEMENT
among
Depositor
and
CHASE
BANK USA, NATIONAL ASSOCIATION,
Owner
Trustee
Dated
as
of June 28, 2006
TABLE
OF
CONTENTS
Section
1.01. Capitalized
Terms.............................................................................................................................................1
Section
1.02. Other
Definitional
Provisions........................................................................................................................3
ARTICLE
II ORGANIZATION........................................................................................................................................................4
Section
2.01. Name..................................................................................................................................................................4
Section
2.02. Office.................................................................................................................................................................4
Section
2.03. Purpose
and
Powers.......................................................................................................................................4
Section
2.04. Appointment
of Owner
Trustee....................................................................................................................5
Section
2.05. Initial
Capital Contribution of Trust
Estate...................................................................................................5
Section
2.06. Declaration
of
Trust..........................................................................................................................................5
Section
2.07. Liability
of the
Certificateholder.....................................................................................................................6
Section
2.08. Title
to
Trust
Property.....................................................................................................................................6
Section
2.09. Situs
of
Trust.....................................................................................................................................................6
Section
2.10. Representations
and Warranties of
Depositor.............................................................................................6
Section
2.11. Amended
and Restated Trust
Agreement.....................................................................................................7
ARTICLE
III CERTIFICATES
AND TRANSFER OF
INTERESTS.................................................................................................7
Section
3.01. Initial
Ownership................................................................................................................................................7
Section
3.02. Form
of
Certificates.............................................................................................................................................7
Section
3.03. Authentication
of the
Certificate.....................................................................................................................7
Section
3.04. Registration
of Transfer of the
Certificate......................................................................................................8
Section
3.05. Mutilated,
Destroyed, Lost or Stolen
Certificate...........................................................................................8
Section
3.06. Persons
Deemed
Owner....................................................................................................................................9
Section
3.07. Access
to
List of Certificateholder's Names and
Addresses......................................................................9
Section
3.08. Maintenance
of Office or
Agency..................................................................................................................9
Section
3.09. Appointment
of Paying
Agents......................................................................................................................9
Section
3.10. Certificates
Nonassessable and Fully
Paid..................................................................................................10
ARTICLE
IV ACTIONS
BY OWNER
TRUSTEE..............................................................................................................................10
Section
4.01 .Prior
Notice to Certificateholder with Respect to Certain
Matters............................................................10
Section
4.02. Action
By
the Certificateholder with Respect to Certain
Matters..............................................................11
Section
4.03. Action
By
Certificateholder with Respect to
Bankruptcy...........................................................................11
-i-
TABLE
OF CONTENTS
(continued)
Section
4.04. Restrictions
on Certificateholder's
Power.......................................................................................................11
ARTICLE
V APPLICATION
OF TRUST FUNDS; CERTAIN
DUTIES........................................................................................11
Section
5.01. Establishment
of Trust
Account......................................................................................................................11
Section
5.02. Application
of Trust
Funds...............................................................................................................................11
Section
5.03. Method
of
Payment............................................................................................................................................12
Section
5.04. No
Segregation of Monies; No
Interest...........................................................................................................12
Section
5.05. Accounting
and Report to the Noteholders, the Certificateholder, the Internal
Revenue Service and
Others.............................................................................................................................13
ARTICLE
VI AUTHORITY
AND DUTIES OF OWNER
TRUSTEE.................................................................................................13
Section
6.01. General
Authority................................................................................................................................................13
Section
6.02. General
Duties......................................................................................................................................................13
Section
6.03. Action
Upon
Instruction....................................................................................................................................13
Section
6.04. No
Duties
Except as Specified in This Agreement or in
Instructions........................................................14
Section
6.05. No
Action
Except under Specified Documents or
Instructions..................................................................15
Section
6.06. Restrictions.........................................................................................................................................................15
ARTICLE
VII CONCERNING
THE OWNER
TRUSTEE....................................................................................................................15
Section
7.01. Acceptance
of Trusts and
Duties...................................................................................................................15
Section
7.02. Furnishing
of
Documents.................................................................................................................................16
Section
7.03. Representations
and
Warranties.....................................................................................................................16
Section
7.04. Reliance;
Advice of
Counsel............................................................................................................................17
Section
7.05. Not
Acting in Individual
Capacity...................................................................................................................17
Section
7.06. Owner
Trustee Not Liable for the Certificate, Notes or
Receivables..........................................................17
Section
7.07. Owner
Trustee May Own the Certificate and
Notes.....................................................................................18
ARTICLE
VIII COMPENSATION
OF OWNER
TRUSTEE.................................................................................................................18
Section
8.01. Owner
Trustee's Fees and
Expenses................................................................................................................18
Section
8.02. Indemnification....................................................................................................................................................18
Section
8.03. Payments
to the Owner
Trustee........................................................................................................................19
ARTICLE
IX TERMINATION
OF TRUST
AGREEMENT.................................................................................................................19
Section
9.01. Termination
of Trust
Agreement......................................................................................................................19
-ii-
TABLE
OF CONTENTS
(continued)
ARTICLE
X SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES....................................................20
Section
10.01. Eligibility
Requirements for Owner
Trustee..................................................................................................20
Section
10.02. Resignation
or Removal of Owner
Trustee...................................................................................................20
Section
10.03. Successor
Owner
Trustee................................................................................................................................21
Section
10.04. Merger
or
Consolidation of Owner
Trustee..................................................................................................21
Section
10.05. Appointment
of Co-Trustee or Separate
Trustee........................................................................................22
ARTICLE
XI MISCELLANEOUS..........................................................................................................................................................23
Section
11.01. Supplements
and
Amendments......................................................................................................................23
Section
11.02. No
Legal
Title to Owner Trust Estate in the
Owner....................................................................................24
Section
11.03. Limitations
on Rights of
Others.....................................................................................................................24
Section
11.04. Notices...............................................................................................................................................................24
Section
11.05. Severability........................................................................................................................................................24
Section
11.06. Separate
Counterparts......................................................................................................................................25
Section
11.07. Successors
and
Assigns..................................................................................................................................25
Section
11.08. No
Petition..........................................................................................................................................................25
Section
11.09. No
Recourse.......................................................................................................................................................25
Section
11.10. Headings..............................................................................................................................................................25
Section
11.11. GOVERNING
LAW.............................................................................................................................................25
Section
11.12. Certificate
Transfer
Restrictions.......................................................................................................................25
.
Section
11.13. Depositor
Payment
Obligation.........................................................................................................................26
ARTICLE
XII REGULATION
AB
COMPLIANCE................................................................................................................................26
Section
12.01. Intent
of
the Parties;
Reasonableness............................................................................................................26
Section
12.02. Additional
Representation and Warranty of the Owner
Trustee...............................................................27
Section
12.03. Information
to Be Provided by the Owner
Trustee.......................................................................................27
EXHIBITS
EXHIBIT
A
- FORM OF
CERTIFICATE...................................................................................................................................A-1
EXHIBIT
B
- CERTIFICATE OF
TRUST...................................................................................................................................B-1
EXHIBIT
C
- CERTIFICATEHOLDER
CERTIFICATION.......................................................................................................C-1
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-iii-
AMENDED
AND RESTATED TRUST AGREEMENT dated as of June 28, 2006, between CATERPILLAR
FINANCIAL FUNDING CORPORATION, a Nevada corporation, as depositor, and CHASE
BANK USA, NATIONAL ASSOCIATION, as trustee.
ARTICLE
I
DEFINITIONS
Section
1.01. Capitalized
Terms.
For all
purposes of this Agreement, the following terms shall have the meanings set
forth below:
"Administration
Agreement"
means
the Administration Agreement, dated as of June 1, 2006, among the Administrator,
the Issuing Entity, the Depositor and the Indenture Trustee, as the same may
be
amended, modified or supplemented from time to time.
"Administrator"
means
Caterpillar Financial Services Corporation, a Delaware corporation, or any
successor Administrator under the Administration Agreement.
"Agreement"
means
this Trust Agreement, as the same may be amended, modified or supplemented
from
time to time.
"Basic
Documents"
means
the Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Depository Agreement, the Custodial Agreement,
the
Notes, the Certificates and the other documents and certificates delivered
in
connection therewith.
"Benefit
Plan Investor"
has the
meaning specified in Section
11.12.
"Certificate
Balance"
has the
meaning specified in the Sale and Servicing Agreement.
"Certificate
Distribution Account"
has the
meaning specified in Section 5.01.
"Certificateholder"
means
the registered holder of the Certificate.
"Certificate
of Trust"
means
the Certificate of Trust in the form of Exhibit B which has been filed for
the Issuing Entity pursuant to Section 3810(a) of the Statutory Trust
Statute.
"Certificate
Register"
and
"Certificate
Registrar"
means
the register mentioned and the registrar appointed pursuant to Section 3.04.
"Certificateholder
Certification"
means
a
certification with respect to non-foreign status and Benefit Plan Investor
status in the form of Exhibit
C.
"Code"
means
the Internal Revenue Code of 1986, as amended.
"Commission"
means
the United States Securities and Exchange Commission or any successor
entity.
"Corporate
Trust Office"
means,
with respect to the Owner Trustee, the principal corporate trust office of
the
Owner Trustee located at c/o JPMorgan Chase, N.A., 500 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Road,
OPS4, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or at such other address as the Owner
Trustee may designate by notice to the Certificateholder, the Administrator,
and
the Depositor, or the principal corporate trust office of any successor Owner
Trustee (the address of which the successor owner trustee will notify the
Depositor, the Administrator, and the Certificateholder).
"Depositor"
means
Caterpillar Financial Funding Corporation in its capacity as Depositor, and
its
successors in such capacity.
"Depository
Agreement"
means
the agreement, dated June 27, 2006, among the Issuing Entity, the Indenture
Trustee and The Depository Trust Company.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended.
"Expenses"
has the
meaning specified in Section 8.02.
"Indemnified
Parties"
has the
meaning specified in Section 8.02.
"Indenture"
means
the Indenture, dated as of June 1, 2006, between the Issuing Entity and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Indenture
Trustee"
means
U.S. Bank National Association, not in its individual capacity but solely as
Indenture Trustee under the Indenture, and any successor Indenture Trustee
under
the Indenture.
"Issuing
Entity"
means
Caterpillar Financial Asset Trust 2006-A, a Delaware statutory trust created
pursuant to the Original Trust Agreement.
"Original
Trust Agreement"
means
the Trust Agreement, dated as of June 7, 2006, between Depositor and Owner
Trustee.
"Owner
Trust Estate"
means
all right, title and interest of the Issuing Entity in and to the property
and
rights assigned to the Issuing Entity pursuant to Article II of the Sale and
Servicing Agreement, all funds on deposit from time to time in the Trust
Accounts and the Certificate Distribution Account and all other property of
the
Issuing Entity from time to time, including any rights of the Owner Trustee
and
the Issuing Entity pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Owner
Trustee"
means
Chase Bank USA, National Association, a national banking association, not in
its
individual capacity but solely as owner trustee under this Agreement, and any
successor Owner Trustee hereunder.
"Paying
Agent"
means
any paying agent or co-paying agent appointed pursuant to Section 3.09
and
shall initially be JPMorgan Chase Bank, N.A.
2
"Record
Date"
means,
with
respect to any Distribution Date and the Certificate, at the close of business
on the last calendar day of the month preceding the month in which such
Distribution Date occurs.
"Regulation
AB"
means
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
"Sale
and Servicing Agreement"
shall
mean the Sale and Servicing Agreement, dated as of June 1, 2006, among the
Issuing Entity, the Depositor, as depositor, and Caterpillar Financial Services
Corporation, as servicer, as the same may be amended, modified or supplemented
from time to time.
"Secretary
of State"
means
the Secretary of State of the State of Delaware.
"Securities
Act"
means
the Securities Act of 1933, as amended.
"Servicing
Criteria"
means
the "servicing criteria" set forth in Item 1122(d) of Regulation AB, as such
may
be amended from time to time.
"Statutory
Trust Statute"
means
Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code§ 3801
et seq.,
as the
same may be amended from time to time.
"Transaction
Party"
means
the Issuing Entity, the Depositor, the Servicer, the Owner Trustee, the
Indenture Trustee, the Administrator, the Custodian and any other material
transaction party in connection with the Notes.
"Treasury
Regulations"
means
regulations, including proposed or temporary regulations, promulgated under
the
Code. References herein to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations
or
other successor Treasury Regulations.
"Trust"
means
the Issuing Entity.
Section
1.02. Other
Definitional Provisions.
(a) Capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Sale and Servicing Agreement or, if not defined therein, in the
Indenture.
(b) All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
3
(c) As
used
in this Agreement and in any certificate or other document made or delivered
pursuant hereto, accounting terms not defined in this Agreement or in any such
certificate or other document, and accounting terms partly defined in this
Agreement or in any such certificate or other document to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The
words
"hereof," "herein," "hereunder," and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references contained
in this Agreement are references to Sections and Exhibits in or to this
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation"; the term "or" is not exclusive; and the term
"proceeds" has the meaning set forth in the UCC.
(e) The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
ARTICLE
II
ORGANIZATION
Section
2.01. Name.
The
Trust created by the Original Trust Agreement shall be known as "Caterpillar
Financial Asset Trust 2006-A," in which name the Owner Trustee may conduct
the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
Section
2.02. Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in the State of Delaware as the Owner Trustee
may designate by written notice to the Depositor and the
Administrator.
Section
2.03. Purpose
and Powers.
(a) The
purpose of the Trust is to engage in the following activities:
(i) to
issue
the Class A-1 Notes, Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes and the Class B Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell $246,100,000 aggregate principal amount
of the Class A-1 Notes, $250,000,000 aggregate principal amount of Class A-2
Notes, $302,000,000 aggregate principal amount of the Class A-3 Notes,
$136,460,000 aggregate principal amount of the Class A-4 Notes, $26,560,000
aggregate principal amount of Class B Notes to or upon the written order of
the
Depositor pursuant to Section
2.01
of the
Sale and Servicing Agreement and issue the Certificate with an initial
Certificate Balance of $4,835,819 to or upon the written order of the Depositor
pursuant to Section
2.01
of the
Sale and Servicing Agreement;
4
(ii) with
the
proceeds from capital contributions from the Depositor to pay the
organizational, start-up and transactional expenses of the Trust and to fund
the
Reserve Account;
(iii) to
assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant
to the Indenture and to hold, manage and distribute to the Certificateholder
pursuant to the terms of the Sale and Servicing Agreement and this Agreement
any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust
pursuant to, the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(vi) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholder and the
Noteholders.
The
Trust
shall not engage in any activity other than in connection with the foregoing
or
other than as required or authorized by the terms of this Agreement or the
Basic
Documents.
Section
2.04. Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05. Initial
Capital Contribution of Trust Estate.
Pursuant to the Original Trust Agreement, the Depositor sold, assigned,
transferred, conveyed and set over to the Owner Trustee, as of the date thereof,
the sum of $100. The Owner Trustee hereby acknowledges receipt in trust from
the
Depositor, as of the date of the Original Trust Agreement, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall
be
deposited in the Certificate Distribution Account. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such
expenses paid by the Owner Trustee.
Section
2.06. Declaration
of Trust.
The
Owner Trustee hereby declares that it will hold the Owner Trust Estate in trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholder, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
statutory trust under the Statutory Trust Statute and that this Agreement
constitute the governing instrument of such statutory trust. It is the intention
of the parties hereto that, for income and franchise tax purposes, the Trust
shall be treated as a "disregarded entity" and, therefore, shall be disregarded
as an entity separate from the Certificateholder. The parties agree that, unless
otherwise required by appropriate tax authorities, the Trust will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a disregarded entity for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have
all rights, powers and duties set forth herein and in the Statutory Trust
Statute with respect to accomplishing the purposes of the Trust.
5
Section
2.07. Liability
of the Certificateholder.
The
Certificateholder shall not have any personal liability for any liability or
obligation of the Trust.
Section
2.08. Title
to Trust Property.
Legal
title to all the Owner Trust Estate shall be vested at all times in the Trust
as
a separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in one or more
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee or a separate trustee, as the case may be.
Section
2.09. Situs
of Trust.
The
Trust will be located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust shall be located
in the State of Delaware or the State of New York. The Trust shall not have
any
employees in any state other than Delaware; provided,
however,
that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by
the Trust only in Delaware or New York, and payments will be made by the Trust
only from Delaware or New York. The only office of the Trust will be at the
Corporate Trust Office in Delaware.
Section
2.10. Representations
and Warranties of Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Nevada, with power and authority to
own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) The
Depositor is duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the failure to so qualify or to obtain such license
or
approval would render any Receivable unenforceable that would otherwise be
enforceable by the Depositor, the Servicer or the Owner Trustee.
(c) The
Depositor has the power and authority to execute and deliver this Agreement
and
to carry out its terms; the Depositor has full power and authority to sell
and
assign the property to be sold and assigned to and deposited with the Trust
and
the Depositor shall have duly authorized such sale and assignment and deposit
to
the Trust by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Depositor by
all
necessary corporate action.
(d) The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation or by-laws
of
the Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court, federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
6
(e) There
are
no proceedings or investigations pending, or, to the best of Depositor's
knowledge, threatened, before any court, federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties which (i) assert the invalidity of this
Agreement or any of the Basic Documents, (ii) seek to prevent the consummation
of any of the transactions contemplated by this Agreement or any of the Basic
Documents, or (iii) seek any determination or ruling that might materially
and
adversely affect the performance by the Depositor of its obligations under,
or
the validity or enforceability of, this Agreement or any of the Basic
Documents.
Section
2.11. Amended
and Restated Trust Agreement.
This
Agreement amends and restates in its entirety the Original Trust
Agreement.
ARTICLE
III
CERTIFICATES
AND TRANSFER OF INTERESTS
Section
3.01. Initial
Ownership.
Upon
the formation of the Trust pursuant to the Original Trust Agreement and
thereafter so long as the Depositor remains the "Certificateholder," the
Depositor shall be the sole beneficiary of the Trust. Notwithstanding any other
provision of this Agreement, the interest of the Depositor in the Trust
(including its interest by virtue of being the holder of the Certificate) shall
be transferable only in whole and any successor to the Depositor pursuant to
such a transfer shall thenceforth be deemed the Depositor for purposes of this
Agreement. No such transfer shall be effective until such time as written notice
thereof signed by both the transferor and transferee and an executed copy of
the
Certificateholder Certification are delivered to the Owner Trustee.
Section
3.02. Form
of Certificates.
The
Certificate shall be issued in an original Certificate Balance of $4,835,819.
The Certificate shall be executed on behalf of the Trust by manual or facsimile
signature of a Trust Officer of the Owner Trustee. The Certificate bearing
the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall, when duly authenticated pursuant to Section 3.03,
be
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized
prior
to the authentication and delivery of the Certificate or did not hold such
offices at the date of authentication and delivery of the
Certificate.
Section
3.03. Authentication
of the Certificate.
Concurrently with the initial sale of the Receivables to the Trust pursuant
to
the Sale and Servicing Agreement, the Owner Trustee shall cause the Certificate
in a principal amount equal to the initial Certificate Balance to be executed
on
behalf of the Trust, authenticated and delivered to or upon the written order
of
the Depositor, signed by its Chairman of the Board, its President, any Vice
President, its Treasurer, its Secretary or any Assistant Treasurer, without
further corporate action by the Depositor. The Certificate shall not entitle
its
holder to any benefit under this Agreement, or be valid for any purpose, unless
there shall appear on the Certificate a certificate of authentication
substantially in the form set forth in Exhibit A executed by the Owner
Trustee or the Owner Trustee's authentication agent, by manual signature; such
authentication shall constitute conclusive evidence that the Certificate shall
have been duly authenticated and delivered hereunder. The Certificate shall
be
dated the date of its authentication.
7
Section
3.04. Registration
of Transfer of the Certificate.
The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.08,
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Owner Trustee shall provide for the registration of the
Certificate and of transfers of the Certificate as herein provided. JPMorgan
Chase Bank, N.A. shall be the initial Certificate Registrar.
Upon
surrender for registration of transfer of the Certificate at the office or
agency maintained pursuant to Section
3.08,
the
Owner Trustee shall execute, authenticate and deliver (or shall cause its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, a new Certificate of a like aggregate amount dated
the date of authentication by the Owner Trustee or any authenticating agent.
The
Owner Trustee shall not register a transfer of any Certificate unless the
transferee of the Certificate delivers to the Certificate Registrar and
authenticating agent an executed Certificateholder Certification.
The
Certificate presented or surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or its attorney duly authorized in writing, along with a
Certificateholder Certification duly executed by the transferee of such
Certificate. The Certificate surrendered for registration of transfer shall
be
cancelled and subsequently disposed of by the Owner Trustee in accordance with
its customary practice.
No
service charge shall be made for any registration of transfer of the
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of the
Certificate.
The
Certificate has not been and will not be registered under the Securities Act,
or
any state securities laws and neither the Certificate nor any interest therein
may be offered, sold, pledged or otherwise transferred except in accordance
with
applicable securities laws of any state of the United States and in reliance
on
the private placement exemption of the Securities Act. The Owner Trustee may
(but shall not be obligated) at any time or times request an Opinion of Counsel
as to compliance with this restriction in connection with any transfer of a
Certificate.
Section
3.05. Mutilated,
Destroyed, Lost or Stolen Certificate.
If (a)
the Certificate is mutilated and shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of the Certificate and (b) there
shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that the Certificate shall have been acquired
by a
protected purchaser, the Owner Trustee on behalf of the Trust shall execute
and
the Owner Trustee, or the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this
Section, the Owner Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be
imposed in connection therewith. Any duplicate Certificate issued pursuant
to
this Section shall constitute conclusive evidence of an ownership interest
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
8
Section
3.06. Persons
Deemed Owner.
Prior
to due presentation of the Certificate for registration of transfer, the Owner
Trustee or the Certificate Registrar may treat the Person in whose name a
Certificate is registered in the Certificate Register as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for
all other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
Section
3.07. Access
to List of Certificateholder's Names and Addresses.
The
Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Depositor in writing, the name and address
of
the Certificateholder as of the most recent Record Date. The Certificateholder,
by receiving and holding the Certificate, shall be deemed to have agreed not
to
hold the Depositor, the Servicer, or the Owner Trustee accountable by reason
of
the disclosure of its name and address, regardless of the source from which
such
information was derived.
Section
3.08. Maintenance
of Office or Agency.
The
Owner Trustee shall maintain in the Borough of Manhattan, in the City of New
York, an office or offices or agency or agencies where notices and demands
to or
upon the Owner Trustee in respect of the Certificate and the Basic Documents
may
be served. The Owner Trustee initially designates JPMorgan Chase Bank, N.A.,
▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its principal corporate trust office
for such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and the Administrator of any change in the location of the Certificate
Register or any such office or agency.
Section
3.09. Appointment
of Paying Agents.
The
Paying Agent shall make distributions to the Certificateholder from the
Certificate Distribution Account pursuant to Section 5.02
and
shall report the amounts of such distributions to the Owner Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent
if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be JPMorgan Chase Bank, N.A., and
any
co-paying agent chosen by JPMorgan Chase Bank, N.A., and acceptable to the
Owner
Trustee. JPMorgan Chase Bank, N.A. shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Owner Trustee and the Administrator. In
the
event that JPMorgan Chase Bank, N.A. shall no longer be the Paying Agent, the
Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a
bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholder in trust
for
the benefit of the Certificateholder entitled thereto until such sums shall
be
paid to the Certificateholder. The Paying Agent shall return all unclaimed
funds
to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions
of
Sections 7.01,
7.03,
7.04
and
8.01
shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as
the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to
the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
9
Section
3.10. Certificates
Nonassessable and Fully Paid.
The
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Issuing Entity or for any reason whatsoever, and, upon the
authentication thereof by the Owner Trustee pursuant to Section 3.03, 3.04
or
3.05, the Certificates are and shall be deemed fully paid.
ARTICLE
IV
ACTIONS
BY OWNER TRUSTEE
Section
4.01. Prior
Notice to Certificateholder with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have
notified the Certificateholder in writing of the proposed action and the
Certificateholder shall not have notified the Owner Trustee in writing prior
to
the 30th day after such notice is given that the Certificateholder has withheld
consent or provided alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (other than an action to collect
on a Receivable) and the compromise of any action, claim or lawsuit brought
by
or against the Trust (other than an action to collect on a
Receivable);
(b) the
election by the Trust to file an amendment to the Certificate of
Trust;
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholder;
(e) the
amendment, change or modification of the Administration Agreement, except to
cure any ambiguity or to amend or supplement any provision in a manner that
would not materially adversely affect the interests of the Certificateholder;
or
(f) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Trustee or the appointment pursuant to this Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent or Trustee or Certificate Registrar of its obligations under the
Indenture or this Agreement, as applicable.
10
Section
4.02. Action
By the Certificateholder with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Certificateholder, to (a) remove the Administrator under the Administration
Agreement pursuant to Section 8 thereof, (b) appoint a successor
Administrator pursuant to Section 8 of the Administration Agreement, (c)
remove the Servicer under the Sale and Servicing Agreement pursuant to
Section 8.01 thereof or (d) except as expressly provided in the Basic
Documents, sell the Receivables after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence
only
upon written instructions signed by the Certificateholder.
Section
4.03. Action
By Certificateholder with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the
Certificateholder and the delivery to the Owner Trustee by the Certificateholder
of a certificate certifying that the Certificateholder reasonably believes
that
the Trust is insolvent.
Section
4.04. Restrictions
on Certificateholder's Power.
The
Certificateholder shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.03
nor
shall the Owner Trustee be obligated to follow any such direction, if
given.
ARTICLE
V
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
Section
5.01. Establishment
of Trust Account.
The
Owner Trustee, for the benefit of the Certificateholder, shall establish and
maintain in the name of the Trust an Eligible Securities Account (the
"Certificate Distribution Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholder.
The
Owner
Trustee shall possess all right, title and interest in all funds on deposit
from
time to time in the Certificate Distribution Account and in all proceeds
thereof. Except as otherwise provided herein, the Certificate Distribution
Account shall be under the sole dominion and control of the Owner Trustee for
the benefit of the Certificateholder. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Securities Account, the Owner
Trustee shall within 10 Business Days following notification of such occurrence
(or such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Securities Account and shall transfer any cash or any investments
in
the existing Certificate Distribution Account to such new Certificate
Distribution Account.
Section
5.02. Application
of Trust Funds.
11
(a) On
each
Distribution Date, the Owner Trustee will distribute amounts deposited in the
Certificate Distribution Account pursuant to Sections
5.04
and
5.05
of the
Sale and Servicing Agreement or pursuant to Section
5.04(b)
or
5.04(c)
of the
Indenture on or before such Distribution Date as follows:
(i) to
the
Certificateholder, to the extent necessary to reduce the Certificate Balance
of
the Certificate to zero, an amount equal to the excess if any, of the Regular
Principal Distribution Amount for such Distribution Date over
amounts
distributable to the Noteholders pursuant to Section
5.04(c)
of the
Sale and Servicing Agreement on such Distribution Date; and
(ii) to
the
Depositor, any remaining funds on deposit in the Certificate Distribution
Account after distribution to the Certificateholder pursuant to the clause
(i)
above.
(b) On
each
Distribution Date, the Administrator shall send to the Certificateholder the
statement provided to the Administrator by the Servicer pursuant to Section 4.09
of the
Sale and Servicing Agreement on such Distribution Date.
(c) In
the
event that any withholding tax is imposed on the Trust's payment (or allocations
of income) to the Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section. The
Owner Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholder sufficient funds for the payment of
any
tax that is legally owed or required to be withheld by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such
tax
in appropriate proceedings, and withholding payment of such tax, if permitted
by
law, pending the outcome of such proceedings). The amount of any withholding
tax
imposed with respect to the Certificateholder shall be treated as cash
distributed to the Certificateholder at the time it is withheld by the Trust
and
remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution, the Owner Trustee
may
in its sole discretion withhold such amounts in accordance with this clause
(c).
In the event that the Certificateholder wishes to apply for a refund of any
such
withholding tax, the Owner Trustee shall reasonably cooperate with the
Certificateholder in making such claim so long as the Certificateholder agrees
to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
Section
5.03. Method
of Payment.
Subject
to Section 9.01(c),
distributions required to be made to the Certificateholder on any Distribution
Date shall be made to the Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if the Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior
to
such Distribution Date or, if not, by check mailed to the Certificateholder
at
the address of such Certificateholder appearing in the Certificate
Register.
Section
5.04. No
Segregation of Monies; No Interest.
Subject
to Section 5.01
and
5.02,
monies
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law, this Agreement, or the Sale and Servicing
Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
12
Section
5.05. Accounting
and Report to the Noteholders, the Certificateholder, the Internal Revenue
Service and Others.
The
Owner Trustee shall (a) maintain (or cause to be maintained) the books of the
Trust on a fiscal year basis ending December 31, (or such other period as may
be
required by applicable law), with the first year being a short year ending
December 31, 2006, and on the accrual method of accounting, (b) deliver to
the
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable the Certificateholder
to prepare its federal and state income tax returns, and make such elections
as
may from time to time be required or appropriate under any applicable state
or
federal statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a disregarded entity for federal income tax purposes and
(c)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.02(c)
with
respect to distributions from the Trust.
ARTICLE
VI
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
Section
6.01. General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party, or any amendment thereto or other agreement,
in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take
all actions required of the Trust pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator directs in writing with respect to the Basic
Documents.
Section
6.02. General
Duties.
It
shall be the duty of the Owner Trustee to discharge (or cause to be discharged)
all of its responsibilities pursuant to the terms of this Agreement and the
Basic Documents and to administer the Trust in the interest of the
Certificateholder, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and responsibilities hereunder
and
under the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee
shall
not be liable for the default or failure of the Administrator to carry out
its
obligations under the Administration Agreement.
Section
6.03. Action
Upon Instruction.
(a) Subject
to Article IV,
the
Certificateholder may, by written instruction, direct the Owner Trustee in
the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholder pursuant to Article IV.
13
(b) The
Owner
Trustee shall not be required to take any action hereunder or under any Basic
Document if the Owner Trustee shall have reasonably determined, or shall have
been advised by counsel, that such action is likely to result in liability
on
the part of the Owner Trustee or is contrary to the terms hereof or of any
Basic
Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or any Basic Document,
the
Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholder requesting instruction as
to
the course of action to be adopted, and to the extent the Owner Trustee acts
in
good faith in accordance with any written instruction of the Certificateholder
received, the Owner Trustee shall not be liable on account of such action to
any
Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic Documents,
as it shall deem to be in the best interest of the Certificateholder, and shall
have no liability to any Person for such action or inaction.
(d) In
the
event that the Owner Trustee is unsure as to the application of any provision
of
this Agreement or any Basic Document or any such provision is ambiguous as
to
its application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by
the
Owner Trustee or is silent or is incomplete as to the course of action that
the
Owner Trustee is required to take with respect to a particular set of facts,
the
Owner Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholder requesting instruction and, to the
extent that the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Owner Trustee shall not
be
liable, on account of such action or inaction, to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified
in
such notice or may be necessary under the circumstances) it may, but shall
be
under no duty to, take or refrain from taking such action, not inconsistent
with
this Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholder and shall have no liability to any Person
for
such action or inaction.
Section
6.04. No
Duties Except as Specified in This Agreement or in Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.03;
and no
implied duties or obligations shall be read into this Agreement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any
liens
on any part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
14
Section
6.05. No
Action Except under Specified Documents or Instructions.
The
Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal
with any part of the Owner Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Basic Documents and (iii) in accordance
with any document or instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section
6.06. Restrictions.
The
Owner Trustee shall not take any action (a) that is inconsistent with the
purposes of the Trust set forth in Section 2.03
or (b)
that, to the actual knowledge of the Owner Trustee, would result in the Trust
being treated as an association (or publicly traded partnership) taxable as
a
corporation for federal income tax purposes. The Owner Trustee and the Depositor
agree that no election to treat the Trust as an association (or publicly traded
partnership) taxable as a corporation for United States federal income tax
purposes or any relevant state tax purposes shall be made by or on behalf of
the
Trust. The Certificateholder shall not direct the Owner Trustee or the Depositor
to take action that would violate the provisions of this Section.
ARTICLE
VII
CONCERNING
THE OWNER TRUSTEE
Section
7.01. Acceptance
of Trusts and Duties.
The
Owner Trustee hereby accepts the trusts hereby created and agrees to perform
its
duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of
the
Basic Documents and this Agreement. The Owner Trustee shall not be answerable
or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct or negligence or (ii) in the case
of
the inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Owner Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding
sentence):
(a) the
Owner
Trustee shall not be liable for any error of judgment made by a responsible
officer of the Owner Trustee;
(b) the
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the written instructions of the Administrator
or
the Certificateholder;
(c) no
provision of this Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights or powers hereunder or under any Basic
Document, if the Owner Trustee shall have reasonable grounds for believing
that
repayment of such funds or adequate indemnity against such risk or liability
is
not reasonably assured or provided to it;
15
(d) under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(e) the
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Depositor
or for the form, character, genuineness, sufficiency, value or validity of
any
of the Owner Trust Estate or for or in respect of the validity or sufficiency
of
the Basic Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to the Certificateholder,
other than as expressly provided for herein and in the Basic
Documents;
(f) the
Owner
Trustee shall not be liable for the default or misconduct of the Administrator,
the Indenture Trustee or the Servicer under any of the Basic Documents or
otherwise, and the Owner Trustee shall have no obligation or liability to
perform the obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under
the
Sale and Servicing Agreement; and
(g) the
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement
or
any Basic Document, at the request, order or direction of the Certificateholder,
unless the Certificateholder has offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in
any
Basic Document shall not be construed as a duty, and the Owner Trustee shall
not
be answerable for other than its negligence or willful misconduct in the
performance of any such act.
Section
7.02. Furnishing
of Documents.
The
Owner Trustee shall furnish (a) to the Certificateholder or the Administrator
promptly upon receipt of a written request therefor, duplicates or copies of
all
reports, notices, requests, demands, certificates, financial statements and
any
other instruments furnished to the Owner Trustee under the Basic Documents
and
(b) to the Indenture Trustee promptly upon written request therefor, copies
of
the Purchase Agreement, the Sale and Servicing Agreement, the Administration
Agreement and the Trust Agreement.
Section
7.03. Representations
and Warranties.
The
Owner Trustee hereby represents and warrants to the Certificateholder
that:
(a) It
is a
banking association duly organized and validly existing in good standing under
the federal laws of the United States and satisfies the eligibility criteria
set
forth in Section 10.01.
It has
all requisite corporate power and authority to execute, deliver and perform
its
obligations under this Agreement.
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Agreement, and this Agreement has been executed and delivered by
one
of its officers who is duly authorized to execute and deliver this Agreement
on
its behalf.
16
(c) Neither
the execution nor the delivery by it of this Agreement, nor the consummation
by
it of the transactions contemplated hereby nor compliance by it with any of
the
terms or provisions hereof will contravene any federal or Delaware law,
governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound.
Section
7.04. Reliance;
Advice of Counsel.
(a) The
Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of the determination of which
is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president
or
by the treasurer or other authorized officers of the relevant party, as to
such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith
in
reliance thereon.
(b) In
the
exercise or administration of the trusts hereunder and in the performance of
its
duties and obligations under this Agreement or the Basic Documents, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable
care,
and (ii) may consult with counsel, accountants and other skilled persons to
be
selected with reasonable care and employed by it. The Owner Trustee shall not
be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons.
Section
7.05. Not
Acting in Individual Capacity.
Except
as provided in this Article VII and in Article XII, in accepting the trusts
hereby created, Chase Bank USA, National Association acts solely as Owner
Trustee hereunder and not in its individual capacity and all Persons having
any
claim against the Owner Trustee by reason of the transactions contemplated
by
this Agreement or any Basic Document shall look only to the Owner Trust Estate
for payment or satisfaction thereof.
Section
7.06. Owner
Trustee Not Liable for the Certificate, Notes or Receivables.
The
recitals contained herein and in the Certificate (other than the signature
and
counter-signature of the Owner Trustee on the Certificate and its
representations and warranties in Section 7.03
and in
Article XII) shall not be taken as the statements of the Owner Trustee and
the
Owner Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, or of the Certificate (other than the signature and countersignature
of the Owner Trustee on the Certificate), or the Notes or of any other Basic
Document or of any Receivable or related documents. The Owner Trustee shall
at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection
and
priority of any security interest created by any Receivable in any Financed
Equipment or the maintenance of any such perfection and priority, or for or
with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to the Certificateholder under this Agreement
or
the Noteholders under the Indenture, including: the existence, condition and
ownership of any Financed Equipment; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any Receivable to
the
Trust or of any intervening assignment; the completeness of any Receivable;
the
performance or enforcement of any Receivable; the compliance by the Depositor
or
the Servicer with any warranty or representation made under any Basic Document
or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Indenture Trustee or
the
Servicer or any subservicer taken in the name of the Owner Trustee.
17
Section
7.07. Owner
Trustee May Own the Certificate and Notes.
The
Owner Trustee in its individual or any other capacity may become the owner
or
pledgee of the Certificate or the Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE
VIII
COMPENSATION
OF OWNER TRUSTEE
Section
8.01. Owner
Trustee's Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder such
fees
as have been separately agreed upon before the date hereof between the Depositor
and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder; provided,
however,
that
the Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 11.08.
Section
8.02. Indemnification.
The
Depositor shall be liable as primary obligor for, and shall indemnify the Owner
Trustee and its successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement,
the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 7.01;
provided,
however,
that
the Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 11.08.
The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel shall
be
subject to the approval of the Depositor, which approval shall not be
unreasonably withheld.
18
Section
8.03. Payments
to the Owner Trustee.
Any
amounts paid to the Owner Trustee pursuant to this Article VIII shall be deemed
not to be a part of the Owner Trust Estate immediately after such
payment.
ARTICLE
IX
TERMINATION
OF TRUST AGREEMENT
Section
9.01. Termination
of Trust Agreement.
(a) This
Agreement (other than Article VIII and Section
11.08)
and the
Trust shall terminate and be of no further force or effect, upon the final
distribution by the Owner Trustee of all monies or other property or proceeds
of
the Owner Trust Estate in accordance with the terms of the Indenture, the Sale
and Servicing Agreement and Article V. Any money or other property held as
part
of the Owner Trust Estate following such distribution shall be distributed
to
the Depositor. The bankruptcy, liquidation, dissolution, death or incapacity
of
the Certificateholder shall not (x) operate to terminate this Agreement or
the
Trust, or (y) entitle the Certificateholder's legal representatives or heirs
to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
or
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Neither
the Depositor nor the Certificateholder shall be entitled to revoke or terminate
the Trust.
(c) Notice
of
any termination of the Trust, specifying the Distribution Date upon which the
Certificateholder shall surrender the Certificate to the Paying Agent for
payment of the final distribution and cancellation, shall be given by the Owner
Trustee by letter to the Certificateholder mailed within five Business Days
of
receipt of notice of such termination from the Servicer given pursuant to
Section 9.01(c)
of the
Sale and Servicing Agreement, stating (i) the Distribution Date upon or with
respect to which final payment of the Certificate shall be made upon
presentation and surrender of the Certificate at the office of the Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that
the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificate
at
the office of the Paying Agent therein specified. The Owner Trustee shall give
such notice to the Certificate Registrar (if other than the Owner Trustee)
and
the Paying Agent at the time such notice is given to the Certificateholder.
Upon
presentation and surrender of the Certificate, the Paying Agent shall cause
to
be distributed to the Certificateholder amounts distributable on such
Distribution Date pursuant to Section 5.02.
19
In the
event that the Certificateholder shall not surrender the Certificate for
cancellation within six months after the date specified in the above mentioned
written notice, the Owner Trustee shall give a second written notice to the
Certificateholder to surrender the Certificate for cancellation and receive
the
final distribution with respect thereto. If within one year after the second
notice the Certificate shall not have been surrendered for cancellation, the
Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the Certificateholder concerning surrender of
the
Certificate, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in
the
Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the Depositor.
(d) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall cause
the
Certificate of Trust to be canceled by filing a certificate of cancellation
with
the Secretary of State in accordance with the provisions of Section 3810 of
the Statutory Trust Statute.
ARTICLE
X
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
10.01. Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent which has) a rating of at least
"Baa3" by Moody's and at least "BBB-" by Standard & Poor's. If such
corporation shall publish reports of condition at least annually, pursuant
to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions
of
this Section, the Owner Trustee shall resign immediately in the manner and
with
the effect specified in Section 10.02.
Section
10.02. Resignation
or Removal of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Certificateholder
and the Administrator; provided,
however,
that
such resignation and discharge shall only be effective upon the appointment
of a
successor Owner Trustee. Upon receiving such notice of resignation, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Owner Trustee may petition any court of competent jurisdiction for
the
appointment of a successor Owner Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 10.01
and
shall fail to resign after written request therefor by the Depositor or the
Administrator, or if at any time the Owner Trustee shall be legally unable
to
act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner
Trustee or of its property shall be appointed, or any public officer shall
take
charge or control of the Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor
or
the Administrator may remove the Owner Trustee. If the Depositor or the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and
one
copy to the successor Owner Trustee and the Depositor shall pay all fees owed
to
the outgoing Owner Trustee.
20
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 10.03
and
payment of all fees and expenses owed to the outgoing Owner Trustee. The
Depositor shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
Section
10.03. Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 10.02
shall
execute, acknowledge and deliver to the Depositor, the Certificateholder and
to
its predecessor Owner Trustee, with a copy thereof delivered to the
Administrator, an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act,
deed
or conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its predecessor under this Agreement, with like effect as
if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements, monies, and other property held by it under this
Agreement; and the Depositor and the predecessor Owner Trustee shall execute
and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No
successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section,
the Depositor shall mail notice of the appointment of such successor Owner
Trustee to the Certificateholder, the Indenture Trustee, the Administrator,
the
Noteholders and the Rating Agencies. If the Depositor shall fail to mail such
notice within 10 days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the
expense of the Depositor.
Section
10.04. Merger
or Consolidation of Owner Trustee.
Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder; provided such corporation shall be eligible pursuant to Section 10.01,
without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto; anything herein to the contrary notwithstanding;
provided,
further,
that the
Owner Trustee shall mail notice of such merger or consolidation to the Rating
Agencies and the Administrator.
21
Section
10.05. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Owner Trust Estate or any Financed Equipment may at the time be located,
the Depositor and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Owner Trust Estate,
or any part thereof, and, subject to the other provisions of this Section,
such
powers, duties, obligations, rights and trusts as the Depositor and the Owner
Trustee may consider necessary or desirable. If the Depositor shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to
meet
the terms of eligibility as a successor trustee pursuant to Section 10.01
and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties, and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular acts are to be performed, the Owner
Trustee shall be incompetent or unqualified to perform such acts, in which
event
such rights, powers, duties, and obligations (including the holding of title
to
the Owner Trust Estate or any portion thereof in any such jurisdiction) shall
be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no
trustee under this Agreement shall be personally liable by reason of any act
or
omission of any other trustee under this Agreement; and
(iii) the
Depositor and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance
of
the trusts conferred, shall be vested with the estates or property specified
in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating
to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and
a
copy thereof given to the Depositor, the Certificateholder and the
Administrator.
22
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor trustee.
ARTICLE
XI
MISCELLANEOUS
Section
11.01. Supplements
and Amendments.
This
Agreement may be amended by the Depositor and the Owner Trustee, with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholder to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
in
this Agreement or of modifying in any manner the rights of the Noteholders
or
the Certificateholder; provided,
however,
that
such amendment shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or the
Certificateholder or the federal tax characteristics of the Notes.
This
Agreement may also be amended from time to time by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies, with the consent
of
the holders of Notes evidencing not less than a majority of the Outstanding
Principal Amount of the Notes, for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Noteholders; provided,
however,
that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder or (b) reduce the aforesaid percentage
of
the Outstanding Principal Amount of the Notes or the Certificate required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and the Certificate.
Promptly
after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent
to
the Indenture Trustee, the Administrator, and each of the Rating
Agencies.
It
shall
not be necessary for the consent of the Noteholders, the Certificateholder
or
the Indenture Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents shall be subject to such reasonable requirements as the Owner Trustee
may prescribe.
23
No
amendment to this Agreement shall affect the rights or duties of the
Administrator without the consent of the Administrator.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior
to
the execution of any amendment to this Agreement or any other Basic Document,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the other Basic Documents. The Owner Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Owner
Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section
11.02. No
Legal Title to Owner Trust Estate in the Owner.
The
Certificateholder shall not have legal title to any part of the Owner Trust
Estate. The Certificateholder shall be entitled to receive distributions with
respect to its ownership interest therein only in accordance with Articles V
and
IX.
No
transfer, by operation of law or otherwise, of any right, title, and interest
of
the Certificateholder to and in its ownership interest in the Trust shall
operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any
part
of the Owner Trust Estate.
Section
11.03. Limitations
on Rights of Others.
The
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Depositor, the Certificateholder, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section
11.04. Notices.
(a) Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt by the intended
recipient if to the Owner Trustee, addressed to the Corporate Trust Office;
if
to the Depositor, addressed to Caterpillar Financial Funding Corporation, ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; if to the Administrator,
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or, as to each party,
at
such other address as shall be designated by such party in a written notice
to
each other party.
(b) Any
notice required or permitted to be given to the Certificateholder shall be
given
by first-class mail, postage prepaid, at the address of such Certificateholder
as shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
Section
11.05. Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
24
Section
11.06. Separate
Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
11.07. Successors
and Assigns.
All
covenants and agreements contained herein shall be binding upon, and inure
to
the benefit of, the Depositor, the Owner Trustee and its successors and the
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or
action by the Certificateholder shall bind the successors and assigns of the
Certificateholder.
Section
11.08. No
Petition.
Notwithstanding any prior termination of this Agreement, the Owner Trustee,
the
Certificateholder (to the extent it is not the Depositor), by accepting the
Certificate, and the Indenture Trustee and each Noteholder by accepting the
benefits of this Agreement, hereby covenant and agree that they will not, prior
to the date which is one year and one day after the termination of the Issuing
Entity, institute against the Depositor or the Issuing Entity, or join in any
institution against the Depositor or the Issuing Entity of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law.
Section
11.09. No
Recourse.
The
Certificateholder by accepting the Certificate acknowledges that the Certificate
represents a beneficial interest in the Trust only and does not represent an
interest in or obligation of the Depositor, the Servicer, the Administrator,
the
Owner Trustee, the Indenture Trustee or any Affiliate thereof, and no recourse
may be had against such parties or their assets, except as may be expressly
set
forth or contemplated in this Agreement, the Certificate or the other Basic
Documents.
Section
11.10. Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
11.11. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section
11.12. Certificate
Transfer Restrictions.
(a) The
Certificate may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of the Employee Retirement Income Security
Act
of 1974, as amended ("ERISA")), whether or not such plan is subject to the
provisions of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1)
of
the Code), whether or not such plan is subject to Section 4975 of the Code,
or
(iii) any entity whose underlying assets include "plan assets" by reason of
any
such plan's investment in the entity and the application of U.S. Department
of
Labor (the "DOL") Regulation Section 2510.3-101 (the "Plan Asset Regulation")
(excluding any investment company that is registered under the Investment
Company Act of 1940, as amended) (each, a "Benefit Plan Investor"), except
as
provided in the following sentence. By accepting and holding the Certificate,
the Certificateholder thereof shall be deemed to have represented, warranted
and
covenanted that (A) it is not a Benefit Plan Investor, and that no assets of
any
Benefit Plan Investor were used to acquire the Certificate, or (B) it is an
insurance company acting on behalf of its general account, and (i) on the date
it acquires the Certificate, less than 25% of the assets of such general account
constitute Plan Assets and (ii) if at any time during any calendar quarter
after
the initial acquisition of the Certificate, 25% or more of the assets of such
general account constitute "plan assets" (as defined in the Plan Asset
Regulation) and no exemption or exception from the prohibited transaction rules
applies to the continued holding of the Certificate under Section 401(c) of
ERISA and final regulations thereunder or an exemption or regulation issued
by
the DOL under ERISA, then such insurance company will dispose of the Certificate
then held in its general account by the end of the next following calendar
quarter, and shall deliver to the Owner Trustee at the time of acquisition
of
the Certificate a duly executed Certificateholder Certification in the form
set
forth in Exhibit
C.
25
(b) The
Certificate may not be acquired by or for the account of an individual or entity
that is not a U.S. person as defined in Section 7701(a)(30) of the Code. By
accepting and holding the Certificate, the Certificateholder shall be deemed
to
have represented and warranted under penalties of perjury that it (or, if it
is
acting as a nominee, the beneficial owner) is a U.S. person and shall deliver
to
the Owner Trustee, at the time of acquisition of the Certificate and thereafter
from time to time upon request, a duly executed Certificateholder Certification
in the form set forth in Exhibit C.
Section
11.13. Depositor
Payment Obligation.
The
Depositor shall be responsible for payment of the Administrator's fees under
the
Administration Agreement (to the extent not paid pursuant to Section 5.04
of the
Sale and Servicing Agreement) and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder.
ARTICLE
XII
REGULATION
AB COMPLIANCE
Section
12.01. Intent
of the Parties; Reasonableness.
The
Depositor and the Owner Trustee acknowledge and agree that the purpose of this
Article XII is to facilitate compliance by the Issuing Entity and the Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Neither the Issuing Entity nor the Depositor shall exercise its
right to request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than compliance
with
the Securities Act, the Exchange Act and the rules and regulations of the
Commission under the Securities Act and the Exchange Act. The Owner Trustee
acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB.
The
Owner Trustee shall cooperate fully with the Issuing Entity and the Depositor
to
deliver to the Issuing Entity and the Depositor any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Issuing Entity or the Depositor to permit the Issuing
Entity or the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the Owner Trustee and the Notes reasonably
believed by the Issuing Entity or the Depositor to be necessary in order to
effect such compliance.
26
Section
12.02. Additional
Representation and Warranty of the Owner Trustee.
The
Owner Trustee hereby represents and warrants to the Issuing Entity and to the
Depositor that the information set forth under the caption "Formation of the
Issuing Entity - The Owner Trustee" in the Preliminary Prospectus Supplement
dated June 19, 2006 and the final Prospectus Supplement dated June 20, 2006
relating to the Notes (i) does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading and (ii) includes all information required
to be included therein with respect to the Owner Trustee under Regulation
AB.
Section
12.03. Information
to Be Provided by the Owner Trustee.
For the
purpose of satisfying the reporting obligations of the Issuing Entity under
the
Exchange Act with respect to the Notes, for so long as the Issuing Entity is
required to file reports under the Exchange Act with respect to the Notes,
the
Owner Trustee shall (i) notify the Issuing Entity and the Depositor in writing
of (A) any material litigation or governmental proceedings pending against
the
Owner Trustee, (B) any affiliations or relationships that develop following
the date hereof between the Owner Trustee and any Transaction Party that are
required to be disclosed under Item 1119(a) of Regulation AB, and (C) any change
in control or sale of substantially all the assets of the Owner Trustee, and
(ii) provide to the Issuing Entity and the Depositor a written description
of
such litigation proceedings, affiliations, relationships or corporate
changes.
[Signature
Page Follows]
27
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed by their respective officers hereunto duly authorized, as of the date
first above written.
CHASE
BANK USA, NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as
Owner
Trustee,
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Assistant
Vice President
CATERPILLAR
FINANCIAL FUNDING
CORPORATION,
as Depositor,
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: Treasurer
Amended
and Restated Trust Agreement
EXHIBIT
A
FORM
OF CERTIFICATE
NUMBER
$[___________]
R-1
SEE
REVERSE FOR CERTAIN DEFINITIONS
THIS
CERTIFICATE IS ONLY TRANSFERABLE IN WHOLE
AND
IS
SUBJECT TO RESTRICTIONS ON TRANSFER
SET
FORTH
IN THE TRUST AGREEMENT
THIS
CERTIFICATE HAS NOT BEEN REGISTERED AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE
OFFERED, SOLD OR DELIVERED UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT.
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED ("ERISA")), WHETHER OR NOT SUCH PLAN IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN (AS DEFINED IN SECTION 4975(e)(1)
OF
THE CODE),
WHETHER
OR NOT SUCH PLAN IS SUBJECT
TO SECTION 4975 OF THE CODE, OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY AND THE
APPLICATION OF U.S. DEPARTMENT OF LABOR (THE "DOL") REGULATION SECTION
2510.3-101 (THE "PLAN ASSET REGULATION") (EXCLUDING ANY INVESTMENT COMPANY
THAT
IS REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) (EACH,
A
"BENEFIT PLAN INVESTOR"), EXCEPT AS PROVIDED IN THE FOLLOWING SENTENCE. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED
TO
HAVE REPRESENTED, WARRANTED AND COVENANTED THAT (A) IT IS NOT A BENEFIT PLAN
INVESTOR, AND THAT NO ASSETS OF ANY BENEFIT PLAN INVESTOR WERE USED TO ACQUIRE
THIS CERTIFICATE, OR (B) IT IS AN INSURANCE COMPANY ACTING ON BEHALF OF ITS
GENERAL ACCOUNT, AND (i) ON THE DATE IT ACQUIRES THIS CERTIFICATE, LESS THAN
25%
OF THE ASSETS OF SUCH GENERAL ACCOUNT CONSTITUTE PLAN ASSETS AND (ii) IF AT
ANY
TIME DURING ANY CALENDAR QUARTER AFTER THE INITIAL ACQUISITION OF THIS
CERTIFICATE, 25% OR MORE OF THE ASSETS OF SUCH GENERAL ACCOUNT CONSTITUTE "PLAN
ASSETS" (AS DEFINED IN THE PLAN ASSET REGULATION) AND NO EXEMPTION OR EXCEPTION
FROM THE PROHIBITED TRANSACTION RULES APPLIES TO THE CONTINUED HOLDING OF THIS
CERTIFICATE UNDER SECTION 401(c) OF ERISA AND FINAL REGULATIONS THEREUNDER
OR AN
EXEMPTION OR REGULATION ISSUED BY THE DOL UNDER ERISA, THEN SUCH INSURANCE
COMPANY WILL DISPOSE OF THIS CERTIFICATE BY THE END OF THE NEXT FOLLOWING
CALENDAR QUARTER, AND SHALL DELIVER TO THE OWNER TRUSTEE AT THE TIME OF
ACQUISITION OF THIS CERTIFICATE A DULY EXECUTED CERTIFICATEHOLDER CERTIFICATION
IN THE FORM SET FORTH IN EXHIBIT C TO THE TRUST AGREEMENT REFERRED TO
HEREIN.
A-1
THIS
CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN INDIVIDUAL OR ENTITY
THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION 7701(a)(30) OF THE CODE. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER SHALL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT (OR, IF IT IS ACTING AS A NOMINEE, THE
BENEFICIAL OWNER) IS A U.S. PERSON AND SHALL DELIVER TO THE OWNER TRUSTEE,
AT
THE TIME OF ACQUISITION OF THIS CERTIFICATE AND THEREAFTER FROM TIME TO TIME
UPON REQUEST, A DULY EXECUTED CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT
C
TO THE TRUST AGREEMENT.
THE
CERTIFICATE BALANCE OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS
SET
FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE
OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
A-2
CATERPILLAR
FINANCIAL ASSET TRUST 2006-A
ASSET
BACKED CERTIFICATE
evidencing
an undivided beneficial interest in the Trust, as defined below, the property
of
which includes a pool of retail installment sale contracts and finance leases
secured by new and used machinery and certain monies due or received thereunder
and sold to the Trust (as defined below) by Caterpillar Financial Funding
Corporation.
(This
Certificate does not represent an interest in or obligation of Caterpillar
Financial Funding Corporation, Caterpillar Financial Services Corporation,
Caterpillar Inc. or any of their respective affiliates, except to the extent
described below.)
THIS
CERTIFIES THAT ______________________________________ is the registered holder
of ______________________________________ DOLLARS ($___________) nonassessable,
fully-paid, undivided beneficial interest in Caterpillar Financial Asset Trust
2006-A (the "Trust") formed by Caterpillar Financial Funding Corporation, a
Nevada corporation (the "Depositor").
The
Trust
was created in connection with an Amended and Restated Trust Agreement, dated
as
of June 28, 2006 (the "Trust Agreement"), between the Depositor and Chase Bank
USA, National Association, as trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement or the Sale and Servicing
Agreement, dated as of June 1, 2006 (the "Sale and Servicing Agreement"), among
the Trust, the Depositor and Caterpillar Financial Services Corporation, as
servicer (the "Servicer"), as applicable.
This
Certificate is the duly authorized Certificate designated as the "Asset Backed
Certificate" (herein called the "Certificate"). Also issued under the Indenture,
dated as of June 1, 2006, between the Trust and U.S. Bank National Association,
as trustee (the "Indenture Trustee"), are Notes designated as "Class A-1
5.45498% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 5.59% Asset
Backed Notes" (the "Class A-2 Notes"), "Class A-3 5.57% Asset Backed Notes"
(the
"Class A-3 Notes"), "Class A-4 5.62% Asset Backed Notes" (the "Class A-4 Notes")
and "Class B 5.71% Asset Backed Notes" (the "Class B Notes"; together with
the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Notes"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust includes
a
pool of retail installment sale contracts and finance leases secured by new
and
used equipment (the "Receivables"), all monies received on or after June 1,
2006
from payments on the Receivables, security interests in the equipment financed
thereby and certain other cross-collateralized equipment, certain bank accounts
and the proceeds thereof, proceeds from claims on certain insurance policies
and
certain other rights under the Trust Agreement and the Sale and Servicing
Agreement, all right, title, and interest of the Depositor in and to the
Purchase Agreement dated as of June 1, 2006 between Caterpillar Financial
Services Corporation and the Depositor and all proceeds of the foregoing. The
holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Sale and Servicing Agreement and the
Indenture.
A-3
Under
the
Trust Agreement, there will be distributed on the 25th day of each month or,
if
such day is not a Business Day, the next Business Day (the "Distribution Date"),
commencing on July 25, 2006 to the Person in whose name this Certificate is
registered at the close of business on the last calendar day of the month
preceding the month in which such Distribution Date occurs (the "Record Date")
the amount to be distributed to the Certificateholder on such Distribution
Date.
Notwithstanding
any prior termination of the Trust Agreement, the Certificateholder (to the
extent it is not the Depositor), by its acceptance of this Certificate,
covenants and agrees that it shall not, prior to the date which is one year
and
one day after the termination of the Trust, institute against the Depositor
or
the Issuing Entity, or join in any institution against the Depositor or the
Issuing Entity of, any bankruptcy, reorganization, arrangement, insolvency
or
liquidation proceedings, or other proceedings under any United States federal
or
state bankruptcy or similar law.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Owner
Trustee by wire transfer or check mailed to the Certificateholder of record
in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of Manhattan, The City of New York.
This
Certificate does not represent an obligation of, or an interest in, the
Depositor, the Servicer, Caterpillar Inc., Caterpillar Financial Services
Corporation, the Owner Trustee or any Affiliates of any of them and no recourse
may be had against such parties or their assets, except as may be expressly
set
forth or contemplated herein or in the Trust Agreement or the Basic Documents.
In addition, this Certificate is not guaranteed by any governmental agency
or
instrumentality and is limited in right of payment to certain collections with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Sale and Servicing Agreement and the Trust
Agreement. A copy of each of the Sale and Servicing Agreement and the Trust
Agreement may be examined during normal business hours at the principal office
of the Depositor, and at such other places, if any, designated by the Depositor,
by the Certificateholder upon written request.
The
Trust
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the Owner Trustee and the rights of the Certificateholder under the Trust
Agreement at any time by the Depositor and the Owner Trustee with the consent
of
the holders of the Notes evidencing a majority of the outstanding Notes.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Certificate Registrar maintained by the Owner Trustee
in the Borough of Manhattan, in the City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing and a duly executed Certificateholder
Certification of the transferee thereof, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate
beneficial interest in the Trust will be issued to the designated transferee.
No
service charge will be made for any such registration of transfer, but the
Owner
Trustee or the Certificate Registrar may require payment of a sum sufficient
to
cover any tax or governmental charge payable in connection therewith. The
initial Certificate Registrar appointed under the Trust Agreement is JPMorgan
Chase Bank, N.A., New York, New York.
A-4
The
Owner
Trustee, the Certificate Registrar and any agent of the Owner Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice
to
the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate upon the payment to the Certificateholder of
all
amounts required to be paid to it pursuant to the Trust Agreement and the Sale
and Servicing Agreement and the disposition of all property held as part of
the
Trust. The Servicer of the Receivables may at its option purchase the corpus
of
the Trust at a price specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust will effect early
retirement of the Certificate; provided,
however,
such
right of purchase is exercisable only on any Distribution Date on which the
Note
Value is 10% or less of the Initial Note Value.
This
Certificate may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of the Employee Retirement Income Security
Act
of 1974, as amended ("ERISA")), whether or not such plan is subject to the
provisions of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1)
of
the Code), whether or not such plan is subject to Section 4975 of the Code,
or
(iii) any entity whose underlying assets include "plan assets" by reason of
any
such plan's investment in the entity and the application of U.S. Department
of
Labor (the "DOL") Regulation Section 2510.3-101 (the "Plan Asset Regulation")
(excluding any investment company that is registered under the Investment
Company Act of 1940, as amended) (each, a "Benefit Plan Investor"), except
as
provided in the following sentence. By accepting and holding this Certificate,
the holder thereof shall be deemed to have represented, warranted and covenanted
that (A) it is not a Benefit Plan Investor, and that no assets of any Benefit
Plan Investor were used to acquire this Certificate, or (B) it is an insurance
company acting on behalf of its general account, and (i) on the date it acquires
this Certificate, less than 25% of the assets of such general account constitute
Plan Assets and (ii) if at any time during any calendar quarter after the
initial acquisition of this Certificate, 25% or more of the assets of such
general account constitute "plan assets" (as defined in the Plan Asset
Regulation) and no exemption or exception from the prohibited transaction rules
applies to the continued holding of this Certificate under Section 401(c) of
ERISA and final regulations thereunder or an exemption or regulation issued
by
the DOL under ERISA, then such insurance company will dispose of this
Certificate by the end of the next following calendar quarter, and shall deliver
to the Owner Trustee at the time of acquisition of this Certificate a duly
executed Certificateholder Certification in the form set forth in Exhibit
C
to the
Trust Agreement.
A-5
This
Certificate may not be acquired by or for the account of an individual or entity
that is not a U.S. person as defined in Section 7701(a)(30) of the Code. By
accepting and holding this Certificate, the holder shall be deemed to have
represented and warranted under penalties of perjury that it (or, if it is
acting as a nominee, the beneficial owner) is a U.S. person and shall deliver
to
the Owner Trustee, at the time of acquisition of this Certificate and thereafter
from time to time upon request, a duly executed Certificateholder Certification
in the form set forth in Exhibit
C
to the
Trust Agreement.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement
or
the Sale and Servicing Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
A-6
IN
WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
CATERPILLAR
FINANCIAL ASSET TRUST 2006-A,
By:
CHASE
BANK USA, NATIONAL ASSOCIATION, as Owner Trustee
Dated:
__________
By:___________________________________________
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
This
is
the Certificate referred to in the within-mentioned Trust
Agreement.
|
CHASE
BANK USA, NATIONAL ASSOCIATION, as Owner Trustee
|
or
|
CHASE
BANK USA, NATIONAL ASSOCIATION, as Owner Trustee
|
|
By JPMORGAN
CHASE
BANK, N.A., as Authenticating Agent
|
||
|
By:_______________________________________
Authorized
Signatory
|
By:_______________________________________
Authorized
Signatory
|
A-7
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY
OR
OTHER
IDENTIFYING NUMBER
OF
ASSIGNEE
____________________________________________________________________________
(Please
print or type name and address, including postal zip code, of
assignee)
____________________________________________________________________________
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________________________
attorney to transfer said Certificate on the books of the Certificate Register,
with full power of substitution in the premises.
Dated:
_________________________________________*
Signature
Guaranteed:
_________________________________________*
____________________
* NOTICE:
The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever.
A-8
EXHIBIT
B
CERTIFICATE
OF TRUST OF
CATERPILLAR
FINANCIAL ASSET TRUST 2006-A
THIS
Certificate of Trust of Caterpillar Financial Asset Trust 2006-A (the "Trust")
is being duly executed and filed on behalf of the Trust by the undersigned,
as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. § 3801 et seq.) (the "Act").
Name.
The
name of the statutory trust formed by this Certificate of Trust is Caterpillar
Financial Asset Trust 2006-A.
Delaware
Trustee. The name and business address of the trustee of the Trust in the State
of Delaware are Chase Bank USA, National Association, ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Road, OPS4, 3rd Floor, Newark, Delaware 19713 Attention:
Institutional Trust Services.
Effective
Date. This Certificate of Trust shall be effective upon filing.
IN
WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust
in
accordance with Section 3811(a)(1) of the Act.
CHASE
BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely
as
Trustee
By:_________________________________
Name:
Title:
B-1
EXHIBIT
C
CERTIFICATEHOLDER
CERTIFICATION
This
Certificateholder Certification ("Certification") is delivered pursuant to
Section
11.12(b)
of
Caterpillar Financial Asset Trust 2006-A Amended and Restated Trust Agreement,
dated as of June 28, 2006 (the "Trust Agreement"), between Caterpillar Financial
Funding Corporation and Chase Bank USA, National Association, as Owner Trustee,
in connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner (the "Beneficial Owner"), or nominee
on
behalf of the Beneficial Owner, of the Caterpillar Financial Asset Trust 2006-A
Asset Backed Certificate (the "Certificate"). Capitalized terms used but not
defined in this Certification have the respective meanings given them in the
Trust Agreement.
The
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III of Section A.
Section
A.
To
confirm to the Trust that the provisions of Section 1446 of the Internal Revenue
Code (relating to withholding tax on foreign partners) do not apply in respect
of the Certificate held by the undersigned, the undersigned hereby
certifies:
Part
I -
Complete Either A or B
A. Individual
as Beneficial Owner
|
1.
|
I
am (The Beneficial Owner is) not a non-resident alien for purposes
of U.S.
income taxation;
|
|
2.
|
My
(The Beneficial Owner's) name and home address
are
|
_____________________________________________
_____________________________________________
_____________________________________________;
and
|
3.
|
My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
______________________.
|
B. Corporate,
Partnership or other Entity as Beneficial Owner
|
1.
|
________________________________
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
regulations);
|
C-1
|
2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
_________________________________________
|
_________________________________________;
and
|
3.
|
The
Beneficial Owner's U.S. employer identification number (Social Security
Number) is _______________.
|
Part
II -
Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this Certification has been made in reliance upon information contained
in:
_________
an IRS Form W-9
_________
a form such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with change in Beneficial
Owners, the undersigned agrees to submit a new Certification of Non-Foreign
Status to the Trust promptly after such change.
Part
III
- Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this Certification may be
disclosed to the Internal Revenue Service by the Trust and any false statement
contained therein could be punishable by fines, imprisonment or
both.
C-2
Under
penalty of perjury, I declare that I have examined this Certification and to
the
best of my knowledge and belief it is true, correct and complete and, if
applicable, I further declare that I have the authority* to sign this
document
________________________________________________________________
Name
________________________________________________________________
Title
(if
applicable)
________________________________________________________________
Signature
and Date
*NOTE: If
signed
pursuant to a power of attorney, the power of attorney must accompany this
Certification.
THE
CERTIFICATION CONTAINED IN THIS SECTION A WILL BECOME OBSOLETE AT THE END OF
THE
THIRD YEAR AFTER THE TAXABLE YEAR OF THE TRUST DURING WHICH THIS CERTIFICATION
IS DELIVERED TO THE TRUST.
Section
B.
The undersigned hereby certifies that (check one):
1. o
no assets of any Benefit Plan
Investor were used to acquire the Certificate.
OR
2. o I
am
an insurance company, acting on behalf of my general account,
and
a. on
the
date I acquired the Certificate, less than 25% of the assets of my general
account constituted Plan Assets, and
b. if,
at
any time during any calendar quarter after the initial acquisition of the
Certificate, 25% or more of the assets of such general account constitute "plan
assets" (as defined in the Plan Asset Regulation) and no exemption or exception
from the prohibited transaction rules applies to the continued holding of the
Certificate under Section 401(c) of ERISA and final regulations thereunder
or an
exemption or regulation issued by the DOL under ERISA, then I will dispose
of
the Certificate then held in my general account by the end of the next following
calendar quarter and shall deliver to the Owner Trustee at the time of
acquisition of the Certificate a duly executed Certificateholder Certification
in the form set forth in this exhibit.
I
declare
that I have examined this Certification and to the best of my knowledge and
belief it is true, correct and complete and, if applicable, I further declare
that I have the authority* to sign this document
________________________________________________________________
Name
________________________________________________________________
Title
(if
applicable)
________________________________________________________________
Signature
and Date
*NOTE: If
signed
pursuant to a power of attorney, the power of attorney must accompany this
Certification.
C-3