AMENDED AND RESTATED TRUST AGREEMENT between CATERPILLAR FINANCIAL FUNDING CORPORATION Depositor and THE BANK OF NEW YORK (DELAWARE), Owner Trustee Dated as of September 27, 2007
Exhibit
4.2
AMENDED
AND RESTATED TRUST AGREEMENT
between
Depositor
and
THE
BANK OF NEW YORK (DELAWARE),
Owner
Trustee
Dated
as of September 27, 2007
TABLE
OF CONTENT
Page
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DEFINITIONS.....................................................................................................................................................................................
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1
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Section
1.01. Capitalized
Terms................................................................................................................................................1
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Section
1.02. Other Definitional
Provisions................................................................................................................................3
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ARTICLE
II
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ORGANIZATION.................................................................................................................................................................................
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4
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Section
2.01.
Name..................................................................................................................................................................4
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Section
2.02.
Office..................................................................................................................................................................4
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Section
2.03. Purpose and
Powers............................................................................................................................................4
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Section
2.04. Appointment of Owner
Trustee............................................................................................................................5
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Section
2.05. Initial Capital Contribution of Trust
Estate.............................................................................................................5
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Section
2.06. Declaration of
Trust.............................................................................................................................................5
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Section
2.07. Liability of the
Certificateholders...........................................................................................................................6
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Section
2.08. Title to Trust
Property..........................................................................................................................................6
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Section
2.09. Situs of
Trust.......................................................................................................................................................6
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Section
2.10. Representations and Warranties of
Depositor.......................................................................................................6
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Section
2.11. Amended and Restated Trust
Agreement..............................................................................................................7
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ARTICLE
III
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CERTIFICATES
AND TRANSFER OF
INTERESTS.........................................................................................................................7
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Section
3.01. Initial
Ownership..................................................................................................................................................7
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Section
3.02. Form of
Certificates.............................................................................................................................................7
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Section
3.03. Authentication of the
Certificates..........................................................................................................................8
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Section
3.04. Registration of Transfer of the
Certificates............................................................................................................8
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Section
3.05. Mutilated, Destroyed, Lost or Stolen
Certificate...................................................................................................9
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Section
3.06. Persons Deemed
Owner......................................................................................................................................9
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Section
3.07. Access to List of Certificateholder's Names and
Addresses..................................................................................9
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Section
3.08. Maintenance of Office or
Agency.........................................................................................................................9
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Section
3.09. Appointment of Paying
Agents.............................................................................................................................9
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Section
3.10. Certificates Nonassessable and Fully
Paid..........................................................................................................10
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ARTICLE
IV
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ACTIONS
BY OWNER
TRUSTEE...................................................................................................................................................10
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Section
4.01. Prior Notice to Certificateholders with Respect to Certain
Matters......................................................................10
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Section
4.02. Action By the Certificateholders with Respect to Certain
Matters........................................................................11
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Section
4.03. Action By Certificateholders with Respect to
Bankruptcy....................................................................................11
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Section
4.04. Restrictions on Certificateholders'
Power............................................................................................................11
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ARTICLE
V
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APPLICATION
OF TRUST FUNDS; CERTAIN
DUTIES...............................................................................................................11
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Section
5.01. Establishment of Trust
Account..........................................................................................................................11
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Section
5.02. Application of Trust
Funds.................................................................................................................................12
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Section
5.03. Method of
Payment...........................................................................................................................................12
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Section
5.04. No Segregation of Monies; No
Interest..............................................................................................................13
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Section
5.05. Accounting and Report to the Noteholders, the
Certificateholders, the Internal Revenue Service and
Others........13
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ARTICLE
VI
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AUTHORITY
AND DUTIES OF OWNER
TRUSTEE......................................................................................................................13
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Section
6.01. General
Authority...............................................................................................................................................13
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Section
6.02. General
Duties...................................................................................................................................................13
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Section
6.03. Action Upon
Instruction.....................................................................................................................................14
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Section
6.04. No Duties Except as Specified in This Agreement or in
Instructions.....................................................................14
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Section
6.05. No Action Except under Specified Documents or
Instructions.............................................................................15
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Section
6.06.
Restrictions........................................................................................................................................................15
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ARTICLE
VII
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CONCERNING
THE OWNER
TRUSTEE........................................................................................................................................15
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Section
7.01. Acceptance of Trusts and
Duties........................................................................................................................15
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Section
7.02. Furnishing of
Documents....................................................................................................................................16
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Section
7.03. Representations and
Warranties.........................................................................................................................17
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Section
7.04. Reliance; Advice of
Counsel...............................................................................................................................17
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Section
7.05. Not Acting in Individual
Capacity.......................................................................................................................17
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Section
7.06. Owner Trustee Not Liable for the Certificates, Notes or
Receivables..................................................................18
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Section
7.07. Owner Trustee May Own the Certificates and
Notes..........................................................................................18
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ARTICLE
VIII
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COMPENSATION
OF OWNER
TRUSTEE.....................................................................................................................................18
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Section
8.01. Owner Trustee's Fees and
Expenses..................................................................................................................18
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Section
8.02.
Indemnification...................................................................................................................................................19
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Section
8.03. Payments to the Owner
Trustee..........................................................................................................................19
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ARTICLE
IX
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TERMINATION
OF TRUST
AGREEMENT.....................................................................................................................................19
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Section
9.01. Termination of Trust
Agreement.........................................................................................................................19
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ARTICLE
X
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SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES............................................................................20
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Section
10.01. Eligibility Requirements for Owner
Trustee........................................................................................................20
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Section
10.02. Resignation or Removal of Owner
Trustee........................................................................................................20
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Section
10.03. Successor Owner
Trustee................................................................................................................................21
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Section
10.04. Merger or Consolidation of Owner
Trustee......................................................................................................22
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Section
10.05. Appointment of Co-Trustee or Separate
Trustee..............................................................................................22
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ARTICLE
XI
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MISCELLANEOUS...........................................................................................................................................................................23
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Section
11.01. Supplements and
Amendments.........................................................................................................................23
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Section
11.02. No Legal Title to Owner Trust Estate in the
Owner...........................................................................................24
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Section
11.03. Limitations on Rights of
Others.........................................................................................................................24
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Section
11.04.
Notices............................................................................................................................................................24
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Section
11.05.
Severability......................................................................................................................................................25
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Section
11.07. Successors and
Assigns...................................................................................................................................25
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Section
11.08. No
Petition......................................................................................................................................................25
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Section
11.09. No
Recourse...................................................................................................................................................25
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Section
11.10.
Headings.........................................................................................................................................................25
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Section
11.11. GOVERNING
LAW......................................................................................................................................25
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Section
11.12. Certificate Transfer
Restrictions........................................................................................................................26
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Section
11.13. Depositor Payment
Obligation..........................................................................................................................26
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ARTICLE
XII
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REGULATION
AB
COMPLIANCE..................................................................................................................................................27
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Section
12.01. Intent of the Parties;
Reasonableness................................................................................................................27
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Section
12.02. Additional Representation and Warranty of the Owner
Trustee.........................................................................27
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Section
12.03. Information to Be Provided by the Owner
Trustee............................................................................................27
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EXHIBITS
EXHIBIT
A – FORM OF CERTIFICATE A-1
EXHIBIT
B – CERTIFICATE OF TRUST B-1
EXHIBIT
C – CERTIFICATEHOLDER CERTIFICATIONC-1
THIS
AMENDED AND RESTATED TRUST AGREEMENT, dated as of September 27, 2007, is between
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as depositor,
and THE BANK OF NEW YORK (DELAWARE), a Delaware banking
corporation, 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 September 1,
2007, 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
Interest Rate Swap 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
Distribution Account" has the meaning specified in
Section 5.01.
"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"
means any registered holder of Certificates.
"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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or at such other address as the Owner Trustee
may designate by notice to the Certificateholders, 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 Certificateholders).
"Depositor"
means Caterpillar Financial Funding Corporation in its capacity as Depositor,
and its successors in such capacity.
"Depository
Agreement" means the agreement, dated September 26, 2007, 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 September 1, 2007, 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 2007-A, a Delaware statutory
trust created pursuant to the Original Trust Agreement.
"Original
Trust Agreement" means the Trust Agreement, dated as of August 1, 2007,
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 The Bank of New York (Delaware), a Delaware banking
corporation, 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 The Bank of New York (Delaware),
a Delaware banking corporation.
2
"Percentage
Interest" means, with respect
to any Certificate, the percentage set forth on the face of such Certificate;
provided,
however,
that the aggregate Percentage Interest
of the Certificates that may be authenticated and delivered under this Agreement
is limited to 100%.
"Record
Date" means,
with respect to any Distribution Date
and the Certificates, 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 September 1, 2007, 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 etseq., 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, 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.
3
(b) All
terms defined in this Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(c) As
used in this Agreement and in any certificate or other document made or
delivered pursuant hereto, 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 2007-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 and the Class
B
Notes pursuant to the Indenture and the Certificates pursuant to this Agreement,
and to sell $150,000,000 aggregate principal amount of the Class A-1 Notes,
$75,000,000 aggregate principal amount of Class A-2a Notes, $126,000,000
aggregate principal amount of the Class A-2b Notes, $134,050,000 aggregate
principal amount of Class A-3a Notes, $155,000,000 aggregate principal amount
of
the Class A-3b Notes and $19,798,000 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 Certificates 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 Certificateholders
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;
(vi) to
enter into and perform its obligations under any interest rate protection
agreement or agreements relating to the Notes between the Issuing Entity and
one
or more Swap Counterparties, including any confirmations, evidencing the
transactions thereunder (including the Interest Rate Swap Agreement);
and
(vii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Swap Counterparty, the Certificateholders
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 Certificateholders, 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 partnership among the Certificateholders. 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 partnership
for such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Statute with respect to accomplishing the purposes of the Trust.
5
Section
2.07. Liability
of the
Certificateholders. The Certificateholders 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.
6
(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.
(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
sole Certificateholder, the Depositor shall be the sole beneficiary of the
Trust. The Depositor may transfer all or any part of its right, title
and interest in and to the Certificates in accordance with this Article III
and
Section 11.12. 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 Certificates, which represent an
undivided beneficial interest in the Issuing Entity, shall be issued to or
upon
the written order of the Depositor. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a Trust
Officer of the Owner Trustee. The Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall,
when
duly authenticated pursuant to Section 3.03, be validly issued and
entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of the Certificates or did not hold such offices
at
the date of authentication and delivery of the Certificates.
7
Section
3.03. Authentication
of the
Certificates. Concurrently with the initial sale of the
Receivables to the Trust pursuant to the Sale and Servicing Agreement, the
Owner
Trustee shall cause the Certificates 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 Certificates shall not entitle their
holder to any benefit under this Agreement, or be valid for any purpose, unless
there shall appear on the Certificates 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 Certificates shall
have been duly authenticated and delivered hereunder. The Certificates shall
be
dated the date of their authentication.
Section
3.04. Registration
of Transfer of the
Certificates. The Certificate Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to
Section 3.08, a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Owner Trustee shall provide
for
the registration of the Certificates and of transfers of the Certificates as
herein provided. The Bank of New York (Delaware) shall be the initial
Certificate Registrar.
Upon
surrender for registration of transfer of the Certificates 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 Percentage Interest 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.
A
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
Certificates, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of the
Certificates.
The
Certificates have not been and will not be registered under the Securities
Act,
or any state securities laws and neither the Certificates 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.
8
Section
3.05. Mutilated,
Destroyed, Lost or Stolen
Certificate. If (a) a 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 a Certificate and (b) there shall be delivered to the Certificate
Registrar and the Owner Trustee such security or indemnity as may be required
by
them to save each of them harmless, then in the absence of notice that such
Certificate shall have been acquired by a 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.
Section
3.06. Persons
Deemed
Owner. Prior to due presentation of the Certificates 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 Certificateholders as of
the
most recent Record Date. Each Certificateholder, by receiving and
holding the Certificates, 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
Certificates and the Basic Documents may be served. The Owner Trustee
initially designates The Bank of New York (Delaware), ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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
Certificateholders from the Certificate Distribution Account pursuant to
Section 5.02 and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines
in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying
Agent shall initially be The Bank of New York (Delaware), and any co-paying
agent chosen by The Bank of New York (Delaware) and acceptable to the Owner
Trustee. The Bank of New York (Delaware) shall be permitted
to resign
as Paying Agent upon 30 days' written notice to the Owner Trustee and the
Administrator. In the event that The Bank of New York (Delaware)
shall
9
no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to
act
as Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying
Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an
instrument in which such successor Paying Agent or additional Paying Agent
shall
agree with the Owner Trustee that as Paying Agent, such successor Paying
Agent
or additional Paying Agent will hold all sums, if any, held by it for payment
to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to the
Certificateholders. The Paying Agent shall return all unclaimed funds
to the Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall
also return all funds in its possession to the Owner Trustee. The
provisions of Sections 7.01, 7.03, 7.04 and
8.01 shall apply to the Owner Trustee also in
its role as Paying Agent,
for so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section
3.10. 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 Certificateholders
with Respect to Certain Matters. With respect to the
following matters, the Owner Trustee shall not take action unless at least
30
days before the taking of such action, the Owner Trustee shall have notified
the
Certificateholders in writing of the proposed action and the Certificateholders
shall not have notified the Owner Trustee in writing prior to the 30th day
after
such notice is given that the Certificateholders evidencing Percentage Interests
aggregating more than 50% have withheld consent or provided alternative
direction:
(a) the
initiation of any claim or lawsuit by the Trust (other than an action to collect
on a Receivable) and the compromise of any action, claim or lawsuit brought
by
or against the Trust (other than an action to collect on a
Receivable);
(b) the
election by the Trust to file an amendment to the Certificate of
Trust;
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder or the Swap Counterparty is required;
10
(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 Certificateholders;
(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 Certificateholders;
or
(f) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Trustee or the appointment pursuant to this Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent or Trustee or Certificate Registrar of its obligations under the
Indenture or this Agreement, as applicable.
Section
4.02. Action
By the Certificateholders with
Respect to Certain Matters. The Owner Trustee shall not
have the power, except upon the direction of Certificateholders evidencing
Percentage Interests aggregating more than 50%, 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
Certificateholders evidencing Percentage Interests aggregating more than
50%.
Section
4.03. Action
By Certificateholders 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 Certificateholders and the delivery to the Owner Trustee
by Certificateholders evidencing Percentage Interests aggregating more than
50%
of a certificate certifying that such Certificateholders reasonably believe
that
the Trust is insolvent.
Section
4.04. Restrictions
on Certificateholders'
Power. The Certificateholders 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
Certificateholders, 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 Certificateholders.
11
The
Owner Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of
the Owner Trustee for the benefit of the Certificateholders. If, at
any time, the Certificate Distribution Account ceases to be an Eligible
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.
(a) On
each Distribution Date, the Owner Trustee will distribute amounts deposited
in
the Certificate Distribution Account pursuant to Sections 5.05 and
5.06 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 to the Certificateholders in accordance with their Percentage
Interests.
(b) On
each Distribution Date, the Administrator shall send to the Certificateholders
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 Certificateholders, such tax shall reduce the
amount otherwise distributable to the Certificateholders in accordance with
this
Section. The Owner Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders 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 Certificateholders shall be treated as cash distributed to the
Certificateholders 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 a 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 Certificateholders on any Distribution
Date shall be made to the Certificateholders of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of
such Certificateholders at a bank or other entity having appropriate facilities
therefor, if a 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.
12
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.
Section
5.05. Accounting
and Report to the
Noteholders, the Certificateholders, 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, 2007, and on the accrual method of
accounting, (b) deliver to the Certificateholders, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
to
enable the Certificateholders to prepare their 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 partnership
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 Certificateholders, 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.
13
Section
6.03. Action
Upon
Instruction.
(a) Subject
to Article IV, Certificateholders evidencing Percentage Interests
aggregating more than 50% 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 Certificateholders pursuant to
Article IV.
(b) The
Owner Trustee shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is likely to result in liability
on the part of the Owner Trustee or is contrary to the terms hereof or of any
Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or any Basic Document,
the
Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholders 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 given by
Certificateholders evidencing Percentage Interests aggregating more than 50%,
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 Certificateholders, 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 Certificateholders
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
Certificateholders 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 Certificateholders 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;
15
(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 Certificateholders;
(c) no
provision of this Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights or powers hereunder or under any Basic
Document, if the Owner Trustee shall have reasonable grounds for believing
that
repayment of such funds or adequate indemnity against such risk or liability
is
not reasonably assured or provided to it;
(d) under
no circumstances shall the Owner Trustee be liable for indebtedness evidenced
by
or arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(e) the
Owner Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the 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 Certificateholders,
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, the Swap Counterparty 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, the Servicer under the Sale and Servicing Agreement or the Swap
Counterparty under the Interest Rate Swap Agreement; and
(g) the
Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement
or
any Basic Document, at the request, order or direction of any Certificateholder,
unless such 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
Certificateholders 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.
16
Section
7.03. Representations
and
Warranties. The Owner Trustee hereby represents and
warrants to the Certificateholders 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.
(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, The Bank of New York
(Delaware) 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.
17
Section
7.06. Owner
Trustee Not Liable for the
Certificates, Notes or Receivables. The recitals contained
herein and in the Certificates (other than the signature and counter-signature
of the Owner Trustee on the Certificates and its representations and warranties
in Section 7.03 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
Certificates (other than the signature and countersignature of the Owner Trustee
on the Certificates), or the Notes or of any other Basic Document or of any
Receivable or related documents. The Owner Trustee shall at no time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and priority
of
any security interest created by any Receivable in any Financed Equipment or
the
maintenance of any such perfection and priority, or for or with respect to
the
sufficiency of the Owner Trust Estate or its ability to generate the payments
to
be distributed to the Certificateholders under this Agreement or the Noteholders
under the Indenture or the Swap Counterparty under the Interest Rate Swap
Agreement, 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.
Section
7.07. Owner
Trustee May Own the
Certificates and Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of the
Certificates 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.
18
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.
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 any 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 any 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
Certificateholders shall surrender the Certificates to the Paying Agent for
payment of the final distribution and cancellation, shall be given by the Owner
Trustee by letter to the Certificateholders mailed within five Business Days
of
receipt of notice of such termination from the Servicer given pursuant to
Section 9.01(c) of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent
at
the time such notice is given to the Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause
to
be distributed to the Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.02.
19
In the
event that a Certificateholder shall not surrender its 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 any 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 ▇▇▇▇▇'▇ 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 Certificateholders 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.
20
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.
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 Certificateholders 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.
21
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 Certificateholders, 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.
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;
22
(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 Certificateholders
and the Administrator.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor trustee.
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 Certificateholders to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions in this Agreement or of modifying in any manner the rights
of
the Noteholders or the Certificateholders; provided, however, that
such amendment shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or the
Certificateholders 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 Certificateholders or (b) reduce the
aforesaid percentage of the Outstanding Principal Amount of the Notes or the
Certificates required to consent to any such amendment, without the consent
of
the holders of all the outstanding Notes and Certificates.
23
Notwithstanding
the foregoing, no amendment to this Agreement shall materially and adversely
affect the rights or obligations of the Swap Counterparty under this Agreement
unless the Swap Counterparty shall have consented in writing to such amendment
(and such consent shall be deemed to have been given if the Swap Counterparty
does not object in writing within ten (10) Business Days after receipt of a
written request for such consent).
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, the Swap Counterparty and each of
the
Rating Agencies.
It
shall not be necessary for the consent of the Noteholders, the
Certificateholders 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.
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. No Certificateholder shall have legal title
to any part of the Owner Trust Estate. The Certificateholders shall
be entitled to receive distributions with respect to their 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 a 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 Certificateholders, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee, the Swap Counterparty 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.
24
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 Certificateholders shall be
given by first-class mail, postage prepaid, at the address of such
Certificateholders 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 a Certificateholder receives
such notice.
Section
11.05. Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
11.06. Separate
Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
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 Certificateholders and their successors
and
permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the
Certificateholders shall bind the successors and assigns of the
Certificateholders.
Section
11.08. No
Petition. Notwithstanding any prior termination of this
Agreement, the Owner Trustee, each Certificateholder (to the extent it is not
the Depositor), by accepting a Certificate, and the Indenture Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenant and
agree that they will not, prior to the date which is one year and one day after
the termination of the 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. Each Certificateholder by accepting a
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 Certificates or the other Basic Documents.
25
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
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to the provisions
of
Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code)
that 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, as modified by Section 3(42) of ERISA (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 a Certificate, each Certificateholder 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 Certificates then held in its general account by
the
end of the next following calendar quarter, and shall deliver to the Owner
Trustee at the time of acquisition of the Certificates a duly executed
Certificateholder Certification in the form set forth in Exhibit
C.
(b) The
Certificates may not be acquired or held by or for the account of an individual
or entity that is not a U.S. person as defined in Section 7701(a)(30) of the
Code. By accepting and holding a Certificate, each 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 and, as
long
as it may be a Certificateholder, will remain 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 5.05 of the Sale and Servicing
Agreement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
26
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.
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
September 17, 2007 and the final Prospectus Supplement dated September 17,
2007
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.
THE BANK OF NEW YORK (DELAWARE),
not
in its individual capacity but solely as Owner Trustee,
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice
President
as Depositor,
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
EXHIBIT
A
FORM
OF CERTIFICATE
|
Number
R-1
|
Percentage
Interest:
|
__________%
|
SEE
REVERSE FOR CERTAIN DEFINITIONS
THIS
CERTIFICATE 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")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I
OF
ERISA, (ii) A PLAN (AS DEFINED IN SECTION 4975(e)(1) OF THE CODE) THAT 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, AS MODIFIED BY SECTION 3(42) OF ERISA (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.
THIS
CERTIFICATE MAY NOT BE ACQUIRED OR HELD 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 AND, AS LONG AS IT MAY BE A HOLDER (OR
BENEFICIAL OWNER), WILL REMAIN 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.
CATERPILLAR
FINANCIAL ASSET TRUST 2007-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 [__]% nonassessable, fully-paid, undivided beneficial interest in Caterpillar
Financial Asset Trust 2007-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 September 27, 2007 (the "Trust Agreement"), between the Depositor
and The Bank of New York (Delaware), 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 September 1, 2007 (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 September 1, 2007, between the Trust and U.S. Bank
National Association, as trustee (the "Indenture Trustee"), are Notes designated
as "Class A-1 5.67225% Asset Backed Notes" (the "Class A-1 Notes"), "Class
A-2a
5.40% Asset Backed Notes" (the "Class A-2a Notes"), "Class A-2b Floating Rate
Asset Backed Notes" (the "Class A-2b Notes" and, together with the Class A-2a
Notes, the "Class A-2 Notes"), "Class A-3a 5.34% Asset Backed Notes" (the "Class
A-3a Notes"), "Class A-3b Floating Rate Asset Backed Notes" (the "Class A-3b
Notes" and, together with the Class A-3a Notes, the "Class A-3 Notes") and
"Class B 6.18% Asset Backed Notes" (the "Class B Notes"; together with the
Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound. The property of the Trust includes a pool of retail
installment sale contracts and finance leases secured by new and used equipment
(the "Receivables"), all monies received on or after September 1, 2007 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 September 1, 2007 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.
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 October 25, 2007 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 Certificateholders 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 The Bank of New York (Delaware), New York, New
York.
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 Certificates; 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")) that is subject to the provisions of Title I
of
ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code) that 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, as modified by Section 3(42) of ERISA (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.
This
Certificate may not be acquired or held 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 and, as long as it may
be
a Certificateholder (or beneficial owner), will remain 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.
IN
WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
|
|
CATERPILLAR
FINANCIAL ASSET TRUST 2007-A,
|
|
|
By: THE
BANK OF NEW YORK (DELAWARE), as Owner
Trustee
|
Dated: __________
By: ___________
Name:
Title:
CERTIFICATE
OF AUTHENTICATION
This
is the Certificate referred to in the within-mentioned Trust
Agreement.
|
THE
BANK OF NEW YORK (DELAWARE), as Owner Trustee
|
or
|
THE
BANK OF NEW YORK (DELAWARE), as Owner Trustee
|
|
By:
THE BANK OF NEW YORK (DELAWARE), as Authenticating
Agent
|
||
|
By:
|
By:
|
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 [__]% Percentage Interest of this Certificate on the books
of the Certificate Register, with full power of substitution in the
premises.
Dated: _________________________________________*
Signature
Guaranteed:
_________________________________________*
____________________
* NOTICE: The
signature to this assignment must correspond with the name as it appears upon
the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever.
EXHIBIT
B
CERTIFICATE
OF TRUST OF
CATERPILLAR
FINANCIAL ASSET TRUST 2007-A
THIS
Certificate of Trust of Caterpillar Financial Asset Trust 2007-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 2007-A.
Delaware
Trustee. The name and business address of the trustee of the Trust in
the State of Delaware are The Bank of New York (Delaware), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust
Administration.
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.
THE
BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as
Trustee
By:_________________________________
Name:
Title:
EXHIBIT
C
CERTIFICATEHOLDER
CERTIFICATION
This
Certificateholder Certification ("Certification") is delivered pursuant to
Section 11.12(b) of Caterpillar Financial Asset Trust 2007-A Amended and
Restated Trust Agreement, dated as of September 27, 2007 (the "Trust
Agreement"), between Caterpillar Financial Funding Corporation and The Bank
of
New York (Delaware), 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 2007-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);
|
|
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2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
_________________________________________
|
|
|
_________________________________________;
and
|
|
|
3.
|
The
Beneficial Owner's U.S. employer identification number (Social Security
Number) is _______________.
|
Part
II - Nominees
If
the undersigned is the nominee for the Beneficial Owner, the undersigned
certifies that this Certification has been made in reliance upon information
contained in:
_________
an IRS Form W-9
_________
a form such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with change in Beneficial
Owners, the undersigned agrees to submit a new Certification of Non-Foreign
Status to the Trust promptly after such change.
Part
III - Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this Certification
may be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or
both.
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
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*NOTE:
|
If
signed pursuant to a power of attorney, the power of attorney must
accompany this Certification.
|