PURCHASE AGREEMENT between CATERPILLAR FINANCIAL SERVICES CORPORATION Seller and CATERPILLAR FINANCIAL FUNDING CORPORATION Depositor Dated as of June 1, 2006
EXHIBIT
10.1
between
CATERPILLAR
FINANCIAL SERVICES CORPORATION
Seller
and
CATERPILLAR
FINANCIAL FUNDING CORPORATION
Depositor
Dated
as
of June 1, 2006
TABLE
OF CONTENTS
SECTION
1.01.
DEFINITIONS.....................................................................................................................................................................1
SECTION
1.02. OTHER DEFINITIONAL
PROVISIONS..........................................................................................................................3
ARTICLE
II
CONVEYANCE
OF
RECEIVABLES.............................................................................................................................4
SECTION
2.01. CONVEYANCE OF
RECEIVABLES................................................................................................................................4
SECTION
2.02. OWNERSHIP AND CUSTODY OF RECEIVABLES
FILES.........................................................................................5
SECTION
2.03. BOOKS AND
RECORDS..................................................................................................................................................5
SECTION
2.04. CUSTODY OF RECEIVABLE
FILES...............................................................................................................................5
SECTION
2.05. CERTIFICATIONS BY THE SERVICER AND THE
CUSTODIAN............................................................................5
SECTION
2.06. THE
CLOSING...................................................................................................................................................................6
ARTICLE
III
REPRESENTATIONS
AND
WARRANTIES.........................................................................................................6
SECTION
3.01. REPRESENTATIONS AND WARRANTIES OF
DEPOSITOR.................................................................................6
SECTION
3.02. REPRESENTATIONS AND WARRANTIES OF
SELLER.........................................................................................7
ARTICLE
IV
CONDITIONS...........................................................................................................................................................12
SECTION
4.01. CONDITIONS TO THE OBLIGATION OF THE
DEPOSITOR................................................................................12
SECTION
4.02. CONDITIONS TO OBLIGATION OF
SELLER.........................................................................................................13
SECTION
4.03. JUNIOR LIENS ON FINANCED EQUIPMENT AND OTHER
EQUIPMENT.......................................................13
ARTICLE
V
COVENANTS
OF THE SELLER AND THE
DEPOSITOR...................................................................................14
SECTION
5.01. PROTECTION OF RIGHT, TITLE AND
INTEREST.................................................................................................14
SECTION
5.02. OTHER LIENS OR
INTERESTS...................................................................................................................................14
SECTION
5.03. CHIEF EXECUTIVE
OFFICE.........................................................................................................................................15
SECTION
5.04. CORPORATE
EXISTENCE...........................................................................................................................................15
SECTION
5.05.
INDEMNIFICATION.....................................................................................................................................................17
SECTION
5.06. REGULATION AB
COMPLIANCE.............................................................................................................................18
ARTICLE
VI
MISCELLANEOUS
PROVISIONS.........................................................................................................................18
SECTION
6.01. OBLIGATIONS OF
SELLER.........................................................................................................................................18
SECTION
6.02. REPURCHASE
EVENTS...............................................................................................................................................18
SECTION
6.03. DEPOSITOR ASSIGNMENT OF REPURCHASED
RECEIVABLES......................................................................18
SECTION
6.04. ISSUING
ENTITY..........................................................................................................................................................18
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TABLE
OF CONTENTS
(continued)
SECTION
6.05.
AMENDMENT..............................................................................................................................................................18
SECTION
6.06.
WAIVERS......................................................................................................................................................................19
SECTION
6.07.
NOTICES.......................................................................................................................................................................19
SECTION
6.08. COSTS AND
EXPENSES............................................................................................................................................19
SECTION
6.09. REPRESENTATIONS OF SELLER AND
DEPOSITOR...........................................................................................19
SECTION
6.10. CONFIDENTIAL
INFORMATION............................................................................................................................20
SECTION
6.11.
HEADINGS...................................................................................................................................................................20
SECTION
6.12. GOVERNING
LAW.....................................................................................................................................................20
SECTION
6.13.
COUNTERPARTS......................................................................................................................................................,20
EXHIBIT
A ASSIGNMENT
OF RECEIVABLES
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PURCHASE
AGREEMENT, dated as of June 1, 2006, between CATERPILLAR FINANCIAL SERVICES
CORPORATION, a Delaware corporation, as seller (together with its successors
and
assigns, the "Seller"),
and
CATERPILLAR FINANCIAL FUNDING CORPORATION, a Nevada corporation, as purchaser
(together with its successors and assigns, the "Depositor").
WHEREAS
in the regular course of its business, the Seller has originated or purchased
certain fixed-rate retail installment sale contracts and finance lease contracts
secured by new and used machinery and equipment; and
WHEREAS
the Seller and the Depositor wish to set forth the terms pursuant to which
the
Receivables (as hereinafter defined) are to be sold by the Seller to the
Depositor, which Receivables will be transferred by the Depositor, pursuant
to
the Sale and Servicing Agreement (as hereinafter defined), to Caterpillar
Financial Asset Trust 2006-A, a Delaware statutory trust (the "Issuing Entity"),
and the Issuing Entity will issue (i) an Asset Backed Certificate (the
"Certificate") pursuant to the Trust Agreement (as hereinafter defined), which
will represent an undivided beneficial interest in the Issuing Entity and
(ii) the Notes (as hereinafter defined) pursuant to the Indenture (as
hereinafter defined), which will represent obligations of the Issuing
Entity.
NOW,
THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
SECTION
1.01. Definitions.
Except
as otherwise specified herein or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes
of
this Agreement.
"Administration
Agreement"
means
the Administration Agreement, dated as of June 1, 2006, among the Issuing
Entity, the Depositor, the Seller, as administrator, and U.S. Bank National
Association, as indenture trustee, as the same may be amended, modified or
supplemented from time to time.
"Affiliate"
means,
with respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, "control", when used with respect to any specified Person, means
the
power to direct the management and policies of such Person, directly or
indirectly, by contract or otherwise; and the terms "controlled by,"
"controlling" and "under common control with" have meanings correlative to
the
foregoing.
"Affiliate
Trust Security Interest"
has the
meaning specified in Section 4.03(b).
"Agreement"
means
this Purchase Agreement, as the same may be amended, modified or supplemented
from time to time.
"Assignment"
means
the document of assignment, a form of which is attached as
Exhibit A.
"Basic
Documents"
has the
meaning specified in the Indenture.
"Certificate"
has the
meaning specified in the Trust Agreement.
"Closing
Date"
means
June 28, 2006.
"Contract"
has the
meaning specified in the Sale and Servicing Agreement.
"Custodian"
means
U.S. Bank National Association, in its capacity as custodian under the Custodial
Agreement, and its successors in such capacity.
"Custodial
Agreement"
means
the Custodial Agreement, dated as of June 1, 2006, among the Seller, the
Depositor, the Issuing Entity and the Custodian, as the same may be amended,
modified or supplemented from time to time.
"Indenture"
means
the Indenture, dated as of June 1, 2006, between the Issuing Entity and U.S.
Bank National Association, as indenture trustee, as the same may be amended,
modified or supplemented from time to time.
"Notes"
means
the Class A-1 5.45498% Asset Backed Notes, the Class A-2 5.59% Asset Backed
Notes, the Class A-3 5.57% Asset Backed Notes, the Class A-4 5.62% Asset Backed
Notes and the Class B 5.71% Asset Backed Notes issued pursuant to the
Indenture.
"Other
Equipment"
has the
meaning specified in Section 4.03(b).
"Other
Obligation"
has the
meaning specified in Section 4.03(a).
"Other
Security Interest"
has the
meaning specified in Section 4.03(a).
"Person"
means
any individual, corporation, estate, partnership, joint venture, association,
joint stock company, trust, limited liability company, unincorporated
organization or government or any agency or political subdivision
thereof.
"Prospectus"
means
the Prospectus (which consists of a base prospectus dated June 19, 2006,
and a prospectus supplement dated June 20, 2006) pursuant to which the
Notes were offered.
"Receivable"
has the
meaning specified in the Sale and Servicing Agreement.
"Receivable
Security Interest"
has the
meaning specified in Section 4.03(a).
"Repurchase
Event"
has the
meaning specified in Section 6.02(a).
"Sale
and Servicing Agreement"
means
the Sale and Servicing Agreement, dated as of June 1, 2006, among the Issuing
Entity, the Depositor (in its capacity as seller thereunder) and the Seller
(in
its capacity as Servicer thereunder), as the same may be amended, modified
or
supplemented from time to time.
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"Schedule
of Receivables"
means
the list of Receivables annexed as Schedule A (which may be in the form of
microfiche), as the same may be amended, modified or supplemented from time
to
time.
"Trust
Agreement"
means
the Amended and Restated Trust Agreement, dated as of June 28, 2006,
between the Depositor and Chase Bank USA, National Association, as owner
trustee, as the same may be amended, modified or supplemented from time to
time.
"UCC"
means
the Uniform Commercial Code as in effect in the relevant jurisdiction, as
amended from time to time.
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, or if not defined therein, in the Trust Agreement.
(b) All
terms
defined in this Agreement shall have the meanings contained herein 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 document made or delivered pursuant hereto,
accounting terms not defined in this Agreement or in any such other document,
and accounting terms partly defined in this Agreement or in any such 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 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 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, Schedule and Exhibit references contained
in this Agreement are references to Sections, Schedules and Exhibits in or
to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; and the term "or" is not exclusive. Terms used
herein that are defined in the New York UCC and not otherwise defined herein
shall have the meanings set forth in the New York UCC, unless the context
requires otherwise. Any reference herein to the Administration Agreement, the
Custodial Agreement, the Indenture, the Sale and Servicing Agreement or the
Trust Agreement means such agreement as in effect on the Closing
Date.
(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.
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ARTICLE
II
CONVEYANCE
OF RECEIVABLES
SECTION
2.01. Conveyance
of Receivables.
In
consideration of the sale on the Closing Date of $979,999,737 in Contract
Balance of Receivables as of the Cut-off Date, the Depositor shall deliver
to or
upon the order of the Seller cash in an amount of $962,716,526.28. The Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Depositor, without recourse (subject to the obligations herein), all right,
title and interest in and to the following, whether now owned or hereafter
acquired:
(a) all
right, title and interest of the Seller in and to the Receivables, and all
monies (including accrued interest) due thereunder on or after the Cut-off
Date;
(b) the
interests of the Seller in the security interests in the Transaction Equipment
granted by Obligors pursuant to the Receivables and any other interest of the
Seller in such Transaction Equipment, including any Liquidation
Proceeds;
(c) the
interest and rights of the Seller in any proceeds with respect to the
Receivables from claims on any physical damage, credit life, liability or
disability insurance policies covering Financed Equipment or Obligors, as the
case may be;
(d) the
interest of the Seller in any proceeds of repossessed or returned Transaction
Equipment;
(e) the
interest of the Seller in any proceeds from recourse to, or other payments
by,
Dealers on Receivables; and
(f) the
proceeds of any and all of the foregoing.
It
is the
express intent of the parties hereto that the conveyance of the Receivables
and
the other property described above by the Seller to the Depositor as provided
in
this Agreement be, and be construed as, a sale of the Receivables by the Seller
to the Depositor. It is, further, not the intention of the parties that such
conveyance be deemed the grant of a security interest in the Receivables or
the
other property described above by the Seller to the Depositor to secure a debt
or other obligation of the Seller. However, in the event, notwithstanding the
intent of the parties, the Receivables or the other property described above
are
held to be property of the Seller, or if for any reason this Agreement is held
or deemed to create a security interest in the Receivables or the other property
described above then, (a) this Agreement shall be a security agreement
within the meaning of Article 9 of the New York UCC; and (b) the Seller
hereby grants to the Depositor a security interest in all of the Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to the
property described in clauses (a) through (f) above, as security for the
obligations of the Seller hereunder. In connection herewith, the Depositor
(or
its assignee) shall have all of the rights and remedies of a secured party
under
the UCC.
Any
assignment of the interest of the Depositor pursuant to this Section
2.01
shall
also be an assignment of the security interest created hereby. The Seller and
the Depositor shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement creates a security
interest in the Receivables, such security interest would be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
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SECTION
2.02. Ownership
and Custody of Receivables Files.
(a) Upon
the
acceptance by the Seller of the amount set forth in Section 2.01, the
ownership of each Receivable and the contents of the related Receivables File
shall be vested in the Depositor.
(b) In
connection with the sale of the Receivables pursuant to Section 2.01,
within 30 days of the Closing Date, the Seller shall deliver each Receivable
File to the Custodian on behalf of the Depositor.
SECTION
2.03. Books
and Records.
The
transfer of each Receivable shall be reflected on the Seller's balance sheets
and other financial statements prepared in accordance with generally accepted
accounting principles as a sale of assets by the Seller to the Depositor. The
Seller shall be responsible for maintaining, and shall maintain, a complete
and
accurate set of accounts, records and computer files for each Receivable which
shall be clearly marked to reflect the ownership of each Receivable by the
Depositor.
SECTION
2.04. Custody
of Receivable Files.
Pursuant to the Custodial Agreement the Depositor has appointed the Custodian,
and the Custodian accepted such appointment, to act as custodian of the
Receivables Files.
SECTION
2.05. Certifications
by the Servicer and the Custodian.
(a) In
accordance with the terms of the Sale and Servicing Agreement, the Servicer
will
review the Receivable Files and deliver the certification required by Section
3.05(a) of the Sale and Servicing Agreement.
(b) In
accordance with the terms of the Custodial Agreement, the Custodian will review
each of the Receivable Files and deliver the certifications or notices required
by Sections 3.1 and 4.1 of the Custodial Agreement. It is understood that the
scope of the Custodian's review of the Receivable Files is limited solely to
confirming that it has received each Receivable File. The Seller agrees to
use
reasonable efforts to cause to be delivered to the Custodian any Receivable
File
that the Custodian determines is missing and to cause to be remedied a material
defect in a document constituting part of a Receivables File. If, however,
within 60 days after it has delivered the Receivable Files to the Custodian
(A)
the Seller has not caused such missing Receivable File to be delivered or (B)
the Seller has not caused to be remedied any such material defect, and such
defect materially and adversely affects the interest of the Depositor in the
related Receivable, the Seller shall remit the Purchase Amount with respect
to
such Receivable to the Depositor and the Depositor shall reconvey such
Receivable to the Seller. The sole remedy of the Depositor, the Issuing Entity,
the Owner Trustee, the Indenture Trustee, the Noteholders or the
Certificateholder with respect to a breach shall be to require the Seller to
repurchase Receivables pursuant to this Section, subject to the conditions
contained herein. The Owner Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
repurchase of any Receivable pursuant to this Section.
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SECTION
2.06. The
Closing.
The
conveyance of the Receivables and the other property described in
Section 2.01 shall take place on the Closing Date, simultaneously with the
closing of the transactions contemplated by the Sale and Servicing Agreement,
the Indenture, the underwriting agreements related to the Notes and the other
Basic Documents.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties of Depositor.
The
Depositor hereby represents and warrants to the Seller as of the date hereof
and
as of the Closing Date:
(a) Organization
and Good Standing.
The
Depositor is duly organized, validly existing in good standing under the laws
of
the State of Nevada, and has the power and authority to own its properties
and
to conduct the business in which it is currently engaged, and had at all
relevant times, and has, the power, authority and legal right to acquire and
own
the Receivables.
(b) Due
Qualification.
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 ownership or lease of property or the conduct of
its
business requires such qualifications.
(c) Power
and Authority.
The
Depositor has the power and authority to execute and deliver this Agreement
and
to carry out its terms and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary corporate
action.
(d) No
Violation.
The
consummation by the Depositor of the transactions contemplated by this Agreement
and the fulfillment by the Depositor of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with
or without notice or lapse of time) a default under, the articles 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
the
Basic Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court, federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
-6-
(e) No
Proceedings.
There
are no proceedings or investigations pending or, to the Depositor's best
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, (ii) seek to prevent the consummation of any of the
transactions contemplated by this Agreement 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.
SECTION
3.02. Representations
and Warranties of Seller.
(a) The
Seller hereby represents and warrants to the Depositor of the date hereof and
as
of the Closing Date:
(i) Organization
and Good Standing.
The
Seller is duly organized, validly existing in good standing under the laws
of
the State of Delaware, and has the power and authority to own its properties
and
to conduct the business in which it is currently engaged, and had at all
relevant times, and has, the power, authority and legal right to acquire and
own
the Receivables.
(ii) Due
Qualification.
The
Seller 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 ownership or lease of property or the conduct of
its
business requires such qualifications.
(iii) Power
and Authority.
The
Seller has the power and authority to execute and deliver this Agreement and
to
carry out its terms; the Seller has full power and authority to sell and assign
the property sold and assigned to the Depositor hereby and has duly authorized
such sale and assignment to the Depositor by all necessary corporate action;
and
the execution, delivery and performance of this Agreement has been duly
authorized by the Seller by all necessary corporate action.
(iv) No
Violation.
The
consummation by the Seller of the transactions contemplated by this Agreement
and the fulfillment by the Seller of the terms hereof neither conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with
or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller 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
the
Basic Documents); nor violate any law or, to the best of the Seller's knowledge,
any order, rule or regulation applicable to the Seller of any court, federal
or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties.
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(v) No
Proceedings.
There
are no proceedings or investigations pending, or, to the best of Seller's
knowledge, threatened, before any court, federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Seller or its properties which (i) assert the invalidity of this
Agreement, (ii) seek to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seek any determination or ruling
that might materially and adversely affect the performance by the Seller of
its
obligations under, or the validity or enforceability of, this
Agreement.
(vi) No
Consents Required.
All
approvals, authorizations, consents, orders or other actions of any Person
or of
any Governmental Authority required in connection with the execution and
delivery by the Seller of this Agreement or any other Basic Document, the
performance by the Seller of the transactions contemplated by this Agreement
or
any other Basic Document and the fulfillment by the Seller of the terms hereof
or thereof, have been obtained or have been completed and are in full force
and
effect (other than approvals, authorizations, consents, orders or other actions
which if not obtained or completed or in full force and effect would not have
a
material adverse effect on the Seller or upon the collectability of any
Receivable or upon the ability of the Seller to perform its obligations under
this Agreement).
(b) The
Seller makes the following representations and warranties as to the Receivables
on which the Depositor relied in accepting the Receivables. The parties hereto
acknowledge that the representations and warranties below require the Seller
to
monitor conditions that it may not have the ability to monitor. Accordingly,
wherever the Seller makes, or is deemed to make, a representation that it cannot
monitor, such representation shall be made as if prefaced with the phrase "to
the best of the Seller's knowledge"; provided,
however,
that
the determination as to whether a Repurchase Event has occurred pursuant to
Section 6.02
shall be
made without reliance on whether the Seller actually had knowledge of the
accuracy of any of its representations. Such representations and warranties
speak as of the execution and delivery of this Agreement but shall survive
the
sale, transfer and assignment of the Receivables to the Depositor and the
subsequent assignments and transfers of the Receivables pursuant to the Sale
and
Servicing Agreement and the Indenture:
(i) Characteristics
of Receivables.
Each
Receivable (A) was originated in the United States of America by the Seller
in
the ordinary course of business or was originated by a Dealer in the ordinary
course of business, in each case in connection with the retail sale by a Dealer
of Financed Equipment in the ordinary course of such Dealer's business, was
fully and properly executed by the parties thereto, and if originated by such
Dealer, was purchased by the Seller from such Dealer and was validly assigned
by
such Dealer to the Seller in accordance with its terms, (B) has created a valid,
subsisting and enforceable (subject to paragraph (iv) below) first priority
security interest in favor of the Seller in the Financed Equipment, and if
applicable, a valid, subsisting and enforceable (subject to paragraph (iv)
below) security interest in favor of the Seller in the Cross-Collateralized
Equipment, which security interests are assignable by the Seller to the
Depositor, by the Depositor to the Issuing Entity and by the Issuing Entity
to
the Indenture Trustee, (C) contains customary and enforceable (subject to
paragraph (iv) below) provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of the benefits
of
the security and (D) provides for fixed payments (except as described below)
on
a periodic basis, yields interest at a fixed-rate (in the case of Receivables
related to an Installment Sales Contract) and is prepayable without premium
or
penalty at any time. The fixed payments provided for are sufficient to amortize
the Amount Financed of such Receivable by maturity and yield interest at the
APR.
-8-
(ii) Schedule
of Receivables.
The
information set forth in the Schedule of Receivables to this Agreement is true
and correct in all material respects as of the opening of business on the
Cut-off Date and no selection procedures believed to be adverse to the
Noteholders or the Certificateholder as assignees of the Depositor were utilized
in selecting the Receivables. The computer tape regarding the Receivables made
available to the Depositor and its assigns is true and correct in all
respects.
(iii) Compliance
with Law.
Each
Receivable and the sale or lease of the Financed Equipment complied at the
time
it was originated or made, and at the execution of this Agreement complies
in
all material respects, with all requirements of applicable federal, state and
local laws and regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations B and S and other equal credit opportunity and disclosure
laws.
(iv) Binding
Obligations.
Each
Receivable represents the genuine, legal, valid and binding payment obligation
in writing of the Obligor, enforceable by the holder thereof (which as of the
Closing Date is the Seller) in accordance with its terms, subject to bankruptcy,
insolvency and other laws relating to the enforcement of creditors' rights
generally and to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law). Such
enforceability has not been and is not adversely affected by whether or not
the
Seller was or is qualified to do business in the state in which the Obligor
was
or is located.
(v) Security
Interest in Financed Equipment.
Immediately prior to the sale, assignment and transfer thereof, each Receivable
shall be secured by a validly perfected first priority security interest in
the
Financed Equipment in favor of the Seller as secured party. As of the Cut-off
Date, such Financed Equipment is located in the United States of
America.
(vi) Receivables
in Force.
No
Receivable has been satisfied, subordinated or rescinded and no Financed
Equipment been released from the lien granted by the related Receivable in
whole
or in part. No Receivable is rescindable on the basis of whether or not the
Seller was or is qualified to do business in the state in which the Obligor
was
or is located.
-9-
(vii) Prospectus
Information.
As of
the Cut-off Date, each Receivable conforms and all Receivables in the aggregate
conform, in all material respects, to the description set forth in the
Prospectus, including all statistical data or otherwise.
(viii) No
Amendments.
No
Receivable has been amended such that the amount of the Obligor's Scheduled
Payments has been increased or decreased, except for increases or decreases
resulting from the inclusion of any premium for forced-placed physical damage
insurance covering the Financed Equipment.
(ix) No
Defenses.
No
right of rescission, setoff, counterclaim or defense has been asserted or
threatened with respect to any Receivable.
(x) No
Liens.
No
liens or claims have been filed for work, labor or materials relating to any
Financed Equipment that are liens prior to, or equal or coordinate with, the
security interest in the Financed Equipment granted by the
Receivable.
(xi) No
Default.
No
Receivable has a payment that is more than 31 days overdue as of the
Cut-off Date and, except as permitted in this paragraph, no default, breach,
violation or event permitting acceleration under the terms of any Receivable
has
occurred and is continuing; and (except for payment defaults continuing for
a
period of not more than 31 days) no continuing condition that with notice or
the
lapse of time would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable has arisen; and the Seller has
not waived and shall not waive any of the foregoing.
(xii) Insurance.
Each
Obligor is required to obtain and maintain physical damage insurance and/or
liability insurance, as applicable, covering the Financed Equipment in
accordance with the Seller's normal requirements.
(xiii) Title.
It is
the intention of the Seller that the transfer and assignment herein contemplated
constitute a sale of the Receivables from the Seller to the Depositor, and
that
the beneficial interest in and title to the Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other than the
Depositor. Immediately prior to the transfer and assignment herein contemplated,
the Seller has good and marketable title to each Receivable, free and clear
of
all Liens, encumbrances, security interests and rights of others and,
immediately upon the transfer thereof, the Depositor shall have good and
marketable title to each Receivable, free and clear of all Liens, tax,
governmental or similar liens, encumbrances, security interests and rights
of
others; and the transfer of the Receivables to the Depositor has been or will
be
within 10 days after the Closing Date perfected under the UCC.
-10-
(xiv) Lawful
Assignment.
No
Receivable has been originated in, or is subject to the laws of, any
jurisdiction under which the sale, transfer and assignment of such Receivable
or
any Receivable under this Agreement, the Sale and Servicing Agreement or the
Indenture is unlawful, void or voidable.
(xv) All
Actions Taken.
All
actions necessary to give the Depositor a first priority perfected ownership
interest in the Receivables pursuant to the UCC have been taken or will be
taken
within 10 days after the Closing Date.
(xvi) Leases.
Each
Lease, relating to any Receivable (A) creates a security interest rather
than a lease for purposes of Section 1-201 of the UCC, (B) is not a
"consumer lease" within the meaning of Article 2A of the UCC in any jurisdiction
where said Article 2A has been adopted and governs the construction
thereof, (C) to the best knowledge of Seller, the related Obligor has
accepted the related Financed Equipment leased to it and has not notified Seller
of any defects therein, (D) is by its terms an absolute and unconditional
obligation of the related Obligor and non-cancelable, (E) requires the
related Obligor to maintain the related Financed Equipment for its own account
except for any rental, (F) the rights with respect to such Lease are
assignable by the Seller thereunder without the consent of any Person,
(G) is net to the Seller of any maintenance, taxes, insurance or other
expenses, (H) contains provisions requiring the related Obligor to assume
all risk of loss or malfunction of the related Financed Equipment and (I) may
not be prepaid by its terms, although the Obligor may discharge its obligations
by prepaying the aggregate remaining lease scheduled payments.
(xvii) Maturity
of Receivables.
Each
Receivable has a final scheduled payment date due not later than the payment
date occurring in May 2011 as of the Cut-off Date and the weighted average
remaining term of the Receivables is 42 months as of the Cut-off
Date.
(xviii) Location
of Receivable Files.
The
Receivable Files are kept at the location listed in Schedule B to the Sale
and
Servicing Agreement.
(xix) Outstanding
Contract Balance.
Each
Receivable has an outstanding Contract Balance of at least $5,007 as of the
Cut-off Date.
(xx) No
Bankruptcies.
No
Obligor on any Receivable as of the Cut-off Date was noted in the related
Receivable File as having filed for bankruptcy or as being subject to a
bankruptcy proceeding and to the Seller's knowledge no such proceeding is
pending or threatened against any Obligor.
(xxi) No
Repossessions.
No
Financed Equipment securing any Receivable is in repossession
status.
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(xxii) Chattel
Paper.
Each
Receivable constitutes "tangible chattel paper" within the meaning of the UCC
of
the States of New York and Nevada;
(xxiii) Obligors.
None of
the Receivables is due from any Person which does not have a mailing address
in
the United States of America. No Receivable is due from the United States of
America or any State or from any agency, department, instrumentality or
political subdivision thereof.
(xxiv) One
Original.
There
is only one Original Contract related to each Receivable. With respect to each
Receivable, the Seller has a perfected, first priority ownership or security
interest in such Receivable, free and clear of all Liens, encumbrances, security
interests or rights of others.
(xxv) Payment
Frequency.
As of
the Cut-off Date and as shown on the books of the Seller, Receivables having
an
aggregate Contract Balance equal to approximately 87.8% of the aggregate
Contract Balance of all Receivables had monthly scheduled payments; and as
of
the Cut-off Date and as shown on the books of the Seller, Receivables having
an
aggregate Contract Balance equal to approximately 12.2% of the aggregate
Contract Balance of all Receivables had scheduled payments which have monthly
scheduled payments other than certain months specified therein for which payment
is skipped.
(xxvi) Interest
Accrual.
Each
Receivable related to an Installment Sales Contract is, as of the Closing Date,
accruing interest.
(xxvii) Notification
of Obligors.
With
respect to each Dealer Receivable, the related Obligor has been notified with
respect to the assignment of the related Contract to the Seller.
ARTICLE
IV
CONDITIONS
SECTION
4.01. Conditions
to the Obligation of the Depositor.
The
obligation of the Depositor to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Representations
and Warranties True.
The
representations and warranties of the Seller hereunder shall be true and correct
on the Closing Date with the same effect as if then made and the Seller shall
have performed all obligations to be performed by it hereunder on or prior
to
the Closing Date.
(b) Computer
Files Marked.
The
Seller shall, at its own expense on or prior to the Closing Date (i) indicate
in
its computer files that the Receivables have been sold to the Depositor pursuant
to this Agreement and sold by the Depositor to the Issuing Entity pursuant
to
the Sale and Servicing Agreement and (ii) deliver to the Depositor the
Schedule of Receivables certified by the Chairman, the President, a Vice
President, Secretary, the Treasurer or an Assistant Treasurer of the Seller
to
be true, correct and complete.
-12-
(c) Documents
to be Delivered by Seller at Closing.
(i) Assignment.
On the
Closing Date, the Seller will execute and deliver the Assignment. The Assignment
shall be substantially in the form of Exhibit A.
(ii) Other
Documents.
On the
Closing Date, the Seller will execute and deliver such other documents as the
Depositor may reasonably request.
(d) Other
Transactions.
The
transactions contemplated by the Basic Documents to be consummated on the
Closing Date shall be consummated on such date.
SECTION
4.02. Conditions
to Obligation of Seller.
The
obligation of the Seller to sell the Receivables to the Depositor is subject
to
the satisfaction of the following conditions:
(a) Representations
and Warranties True.
The
representations and warranties of the Depositor hereunder shall be true and
correct on the Closing Date with the same effect as if then made and the
Depositor shall have performed all obligations to be performed by it hereunder
on or prior to the Closing Date.
(b) Receivables
Purchase Price.
On the
Closing Date, the Depositor shall have delivered to the Seller the purchase
price specified in Section 2.01.
SECTION
4.03. Junior
Liens on Financed Equipment and Other Equipment.
(a) To
the
extent that any item of Financed Equipment is subject to a security interest
in
favor of the Seller (each, an "Other Security Interest") to secure an obligation
of the related Obligor that is not part of a Receivable that has been
transferred to the Depositor pursuant to Section 2.01 (each, an "Other
Obligation"), then the Seller agrees that, notwithstanding any other provision
of any document, instrument or agreement to the contrary, and until (i) the
related Receivable has been paid in full or (ii) the security interest in such
item of Financed Equipment that secures the Receivable (the "Receivable Security
Interest") has been discharged or released, (A) the Receivable Security Interest
in the Financed Equipment shall be prior and senior to the Other Security
Interest in the Financed Equipment, and the Other Security Interest in the
Financed Equipment shall be subordinate and junior to the Receivable Security
Interest in the Financed Equipment, (B) the Seller shall not transfer the Other
Obligation to an Affiliate of the Seller or a trust (other than the Issuing
Entity) established by the Depositor or any of its Affiliates unless the
documentation for such transaction provides that the Receivable Security
Interest in the Financed Equipment shall be prior and senior to the Other
Security Interest in the Financed Equipment, and the Other Security Interest
in
the Financed Equipment shall be subordinate and junior to the Receivable
Security Interest in the Financed Equipment, and (C) the Seller shall not
transfer the Other Obligation (other than as described in clause (B) of this
paragraph) unless the transferee agrees in writing that the Receivable Security
Interest in the Financed Equipment shall be prior and senior to the Other
Security Interest in the Financed Equipment, and the Other Security Interest
in
the Financed Equipment shall be subordinate and junior to the Receivable
Security Interest in the Financed Equipment.
-13-
(b) To
the
extent that any Receivable is secured by a security interest in any equipment
other than the Financed Equipment (the "Other Equipment") and such Other
Equipment is subject to a security interest (each, an "Affiliate Trust Security
Interest") in favor of the Seller that has been or will in the future be
assigned by the Seller to a trust (other than the Issuing Entity) established
by
the Depositor or any of its Affiliates, then the Seller and the Depositor agree
that the Affiliate Trust Security Interest in the Other Equipment shall be
prior
and senior to the security interest in the Other Equipment that secures the
Receivable, and the security interest in the Other Equipment that secures the
Receivable shall be subordinate and junior to the Affiliate Trust Security
Interest in the Other Equipment.
ARTICLE
V
COVENANTS
OF THE SELLER AND THE DEPOSITOR
The
Seller and the Depositor agree with each other as follows; provided,
however,
that to
the extent that any provision of this Article conflicts with any provision
of
the Sale and Servicing Agreement, the Sale and Servicing Agreement shall
govern:
SECTION
5.01. Protection
of Right, Title and Interest.
(a) Further
Assurances.
The
Seller shall take all actions to preserve and protect the right, title and
interest of the Depositor in and to the Receivables and the other property
transferred to the Depositor pursuant to Section 2.01. The Depositor shall
cooperate fully with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill
the
purpose of this paragraph.
(b) Name
Change.
Within
15 days after the Seller makes any change in its name or type or jurisdiction
of
organization, the Seller shall give the Depositor notice of any such
change.
(c) UCC
Financing Statements.
The
Seller shall file and maintain all appropriate financing statements (in the
proper filing office, in the appropriate jurisdiction), necessary to perfect,
and maintain the perfection of, the ownership interest or security interest
of
the Depositor in the Receivables.
SECTION
5.02. Other
Liens or Interests.
Except
for the conveyances hereunder and pursuant to the Sale and Servicing Agreement
and the other Basic Documents, the Seller shall not sell, pledge, assign or
transfer to any Person, or grant, create, incur, assume or suffer to exist
any
Lien arising through or under it or any Dealer on, any interest in, to and
under
the Receivables, and the Seller shall defend the right, title and interest
of
the Depositor in, to and under the Receivables against all claims of third
parties claiming through or under the Seller or any Dealer; provided,
however,
that
the Seller's obligations under this Section shall terminate one year and one
day
after the termination of the Issuing Entity pursuant to the Trust
Agreement.
-14-
SECTION
5.03. Chief
Executive Office.
During
the term of the Receivables, the Seller will maintain its chief executive office
in one of the States of the United States of America or the District of
Columbia.
SECTION
5.04. Corporate
Existence.
(a) During
the term of this Agreement, the Depositor will keep in full force and effect
its
existence, rights and franchises as a corporation under the laws of Nevada
and
will obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement, the Basic Documents and each other instrument
or agreement necessary or appropriate to the proper administration of this
Agreement and the Sale and Servicing Agreement and the transactions contemplated
hereby.
(b) The
Seller will not take any action or fail to take any action if such act or
omission would cause the Depositor not to observe the covenants set forth in
Section 5.04(c)
or to
violate the provisions of the Depositor's articles of
incorporation.
(c) The
Depositor and the Seller agree that each of their respective businesses shall
be
conducted as follows, and neither Depositor nor the Seller shall take any action
or fail to take any action if such act or omission would cause its respective
business not to be conducted as follows:
(i) The
Depositor will maintain both an office at which its business is and will be
conducted and a telephone number separate from the Seller or any of the Seller's
Affiliates.
(ii) At
least
two of the Depositor's directors are not and will not be directors, officers
or
employees of the Seller or any of the Seller's Affiliates. No employee of the
Depositor shall engage in any servicing functions with respect to the
Receivables and, with respect to the Depositor, shall only engage in corporate
governance and clerical functions. So long as the Depositor maintains an
employee at its office, the Depositor shall at all times maintain comprehensive
liability and workmen's compensation insurance (as is customary for commercial
enterprises) in an amount, when taking into account any available umbrella
policy, at least equal to $5,000,000.
(iii) The
Depositor will maintain corporate records and books and accounts separate from
those of the Seller or any of the Seller's Affiliates.
(iv) Except
as
expressly permitted by the Sale and Servicing Agreement with respect to
collections on the Receivables prior to the transfer of such collections to
the
Collection Account, the Depositor's funds will not be commingled with those
of
the Seller or any of the Seller's Affiliates, and the Depositor shall maintain
bank accounts separate from those of the Seller or any of the Seller's
Affiliates.
-15-
(v) As
long
as it is the Servicer, the Seller shall maintain records permitting a
determination on a daily basis of the amount and location of any of its funds
which are commingled as permitted under clause
(iv)
above.
(vi) The
Board
of Directors of the Depositor will take appropriate corporate action (including
holding meetings or acting by unanimous consent) to authorize all of the
Depositor's corporate actions, and minutes shall be maintained by the Depositor
separate and apart from those of the Seller or any of the Seller's
Affiliates.
(vii) The
Depositor shall at all times be adequately capitalized to engage in the
transactions contemplated at its formation. Without limiting the foregoing,
the
Depositor shall at all times maintain capital sufficient to pay its rent, salary
of any employee, and any required insurance from the Closing Date until the
termination of the Issuing Entity in accordance with the terms and conditions
of
the Trust Agreement.
(viii) The
Depositor shall not incur or guarantee any debt other than under the Sale and
Servicing Agreement, nor shall the Depositor make any loans, pledge its assets
for the benefit of any other entity or hold out its credit as being available
to
satisfy the obligations of others, other than as permitted by the Depositor's
articles of incorporation.
(ix) The
Depositor shall not engage in any transaction with the Seller or any of the
Seller's Affiliates on terms more favorable than in a similar transaction
involving a third party.
(x) The
Depositor shall at all times use its own stationery.
(xi) The
Depositor shall always be described as a separate corporation, and never as
a
department, division or otherwise of the Seller or any of the Seller's
Affiliates.
(xii) The
Depositor shall act solely in its own corporate name and through its own
authorized officers and agents. Neither the Depositor nor any of Depositor's
Affiliates shall be appointed agent of the Seller, except as expressly provided
for by the Sale and Servicing Agreement and the Administration
Agreement.
(xiii) The
data
and records (including computer records) used by the Depositor or the Seller
in
the collection and administration of the Receivables shall reflect the
Depositor's ownership interest therein.
(xiv) Other
than organizational expenses, the Depositor shall be responsible for the payment
of all expenses including the salaries of its employees, indebtedness and other
obligations incurred by it, including a fair and reasonable allocation for
shared office space.
-16-
(xv) The
Depositor shall at all times hold itself out to the public under the Depositor's
own name as a legal entity separate and distinct from the Seller and any of
the
Seller's Affiliates and shall correct any known misunderstanding regarding
its
separate identity.
(xvi) None
of
the Depositor's funds nor any of the funds held by the Seller on behalf of
the
Depositor or the holders of the Certificate or the Notes shall be invested
in
securities issued by the Seller or any of the Seller's Affiliates.
(xvii) The
Depositor shall at all times maintain a sufficient number of employees in light
of its contemplated business operations.
(xviii) At
any
time the Notes are outstanding, the Seller shall not (A) dissolve or
liquidate, (B) merge or consolidate with any other entity, (C) sell its assets
substantially in their entirety to any other entity or (D) amend its articles
of
incorporation, in each case unless the Rating Agency Condition is
satisfied.
(d) The
Depositor and the Seller will each furnish to the other on or before April
30 of
each year (commencing April 30, 2007) for so long as any Certificate or Note
remains outstanding an Officer's Certificate to the effect that all of its
respective obligations under this Section 5.04 have been fulfilled
throughout the preceding calendar year (or the period from the Closing Date
until December 31, 2006, as applicable), or, if there has been any default
in
the fulfillment of any such obligations, specifying each such default known
to
the signer thereof and the nature and status thereof.
(e) The
Seller will not transfer or assign any interest in the Depositor except pursuant
to an instrument under which the transferee or assignee of such interest
expressly assumes the performance of all covenants of the Seller to be performed
or observed under this Section 5.04.
(f) The
annual consolidated audited financial statements of the Depositor and the Seller
will reflect the results of the issuance of the Notes and Certificates in
accordance with generally accepted accounting principles and also disclose
that
the assets of the Depositor are not available to pay creditors of the Seller
or
any other Affiliate of the Seller.
SECTION
5.05. Indemnification.
The
Seller shall indemnify the Depositor for any liability as a result of the
failure of a Receivable to be originated in compliance with all requirements
of
law and for any breach of any of its representations and warranties contained
herein, other than the representations and warranties made pursuant to
Section 3.02(b)
for
which the sole remedy shall be provided by Section 6.02;
provided,
however,
that
the Seller shall indemnify the Depositor for any liability arising from a breach
of Section 3.02(b)(ii),
(iii)
and
(xxv).
These
indemnity obligations shall be in addition to any other obligation that the
Seller may otherwise have.
-17-
SECTION
5.06. Regulation
AB Compliance.
The
Seller shall provide to the Depositor such information and disclosure regarding
the Seller and the Receivables as is required to enable the Depositor to comply
with all of its obligations under Regulation AB under the Securities Act of
1933
and the Securities Exchange Act of 1934.
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
SECTION
6.01. Obligations
of Seller.
The
obligations of the Seller under this Agreement shall not be affected by reason
of any invalidity, illegality or irregularity of any Receivable.
SECTION
6.02. Repurchase
Events.
(a) The
Seller hereby covenants and agrees with the Depositor for the benefit of the
Depositor, the Indenture Trustee, the Noteholders, the Owner Trustee and the
Certificateholder that the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.02(b)
(other
than the representation and warranty contained in Section 3.02(b)(xxv))
in
respect of a Receivable shall constitute an event obligating the Seller to
repurchase such Receivable (each, a "Repurchase Event"), at the Purchase Amount
from the Depositor or from the Issuing Entity.
(b) These
repurchase obligations of the Seller shall constitute the sole remedies to
the
Depositor, the Indenture Trustee, the Noteholders, the Owner Trustee and the
Certificateholder against the Seller with respect to any Repurchase
Event.
(c) The
terms
and conditions of the Depositor's rights and obligations to enforce its right
of
repurchase pursuant to this Section 6.02 shall be governed by
Section 3.02 of the Sale and Servicing Agreement.
SECTION
6.03. Depositor
Assignment of Repurchased Receivables.
With
respect to all Receivables repurchased by the Seller pursuant to this Agreement,
the Depositor shall assign, without recourse, representation or warranty, to
the
Seller all the Depositor's right, title and interest in and to such Receivables,
and all security and documents relating thereto.
SECTION
6.04. Issuing
Entity.
The
Seller acknowledges and agrees that (a) the Depositor will, pursuant to the
Sale
and Servicing Agreement, sell the Receivables to the Issuing Entity and assign
its rights under this Agreement to the Issuing Entity, (b) the Issuing Entity
will, pursuant to the Indenture, assign such Receivables and such rights to
the
Indenture Trustee and (c) the representations and warranties contained in this
Agreement and the rights of the Depositor under this Agreement, including
Section 6.02,
are
intended to benefit the Issuing Entity, the Certificateholder and the
Noteholders (and may be enforced directly by the Indenture Trustee on behalf
of
the Noteholders and by the Owner Trustee on behalf of the Issuing Entity or
the
Certificateholder). The Seller hereby consents to all such sales and
assignments.
SECTION
6.05. Amendment.
This
Agreement may be amended from time to time, with prior written notice to the
Rating Agencies, by a written amendment duly executed and delivered by the
Seller and the Depositor, without the consent of the Noteholders or the
Certificateholder, for the purpose of adding any provisions to or changing
in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or Certificateholder;
provided that such amendment will not, as expressed in an Opinion of Counsel,
materially and adversely affect the interest of any Noteholder or the
Certificateholder or the federal tax characterization of the Notes. This
Agreement may also be amended by the Seller and the Depositor, with prior
written notice to the Rating Agencies, with the consent of the Noteholders
evidencing a majority in the Outstanding Principal Amount of the Notes and
the
Certificateholder for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of this Agreement or of modifying
in
any manner the rights of Noteholders or the Certificateholder; provided,
however,
that no
such amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, any payment by Seller hereunder or
collections of payments on Receivables or distributions that are required to
be
made for the benefit of Noteholders or the Certificateholder or (ii) reduce
the
aforesaid percentage of the Notes and the Certificate which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and the holder of the Certificate.
-18-
SECTION
6.06. Waivers.
No
failure or delay on the part of the Depositor in exercising any power, right
or
remedy under this Agreement or the Assignment shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy.
SECTION
6.07. Notices.
All
demands, notices and communications under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return receipt requested,
and
shall be deemed to have been duly given upon receipt (a) in the case of the
Seller, to Caterpillar Financial Services Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇; (b) in the case of the Depositor,
to
Caterpillar Financial Funding Corporation, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (702) 735-2514; (c) in the case of Moody's, to
▇▇▇▇▇'▇ Investors Service, Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and (d) in the case of Standard & Poor's, to
Standard & Poor's Ratings Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Asset Backed Surveillance Department; or as to
each
of the foregoing, at such other address as shall be designated by written notice
to the other parties.
SECTION
6.08. Costs
and Expenses.
The
Seller will pay all expenses incident to the performance of its obligations
under this Agreement, and the Seller agrees to pay all reasonable out-of-pocket
costs and expenses of the Depositor, excluding fees and expenses of counsel,
in
connection with the perfection as against third parties of the Depositor's
right, title and interest in and to the Receivables and the enforcement of
any
obligation of the Seller hereunder.
SECTION
6.09. Representations
of Seller and Depositor.
The
respective agreements, representations, warranties and other statements by
the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under
Section 2.02.
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SECTION
6.10. Confidential
Information.
The
Depositor agrees that it will neither use nor disclose to any Person the names
and addresses of the Obligors, except in connection with the enforcement of
the
Depositor's rights hereunder, under the Receivables, under the Sale and
Servicing Agreement or any other Basic Document or as required by any of the
foregoing or by law.
SECTION
6.11. Headings
. The
various headings in this Agreement are included for convenience only and shall
not affect the meaning or interpretation of any provision of this Agreement.
SECTION
6.12. Governing
Law.
THIS
AGREEMENT AND THE ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF
LAW
PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS, REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION
6.13. Counterparts.
This
Agreement may be executed in two or more counterparts and by different parties
on separate counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers duly authorized as of the date first above
written.
CATERPILLAR
FINANCIAL FUNDING CORPORATION, as Depositor
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: Treasurer
CATERPILLAR
FINANCIAL SERVICES
CORPORATION,
as Seller
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: Treasurer
SCHEDULE
A
SCHEDULE
OF RECEIVABLES
Schedule
A-1
EXHIBIT
A
ASSIGNMENT
OF RECEIVABLES
June
28,
2006
For
value
received, in accordance with the Purchase Agreement, dated as of June 1, 2006
(the "Purchase Agreement"), between the undersigned, as seller, and Caterpillar
Financial Funding Corporation, as purchaser (the "Depositor"), the undersigned
does hereby sell, assign, transfer and otherwise convey unto the Depositor,
without recourse, (i) all right, title and interest of the undersigned in
and to the Receivables, and all monies (including accrued interest) due
thereunder on and after the Cut-off Date; (ii) the interests of the
undersigned in the security interests in the Transaction Equipment granted
by
Obligors pursuant to the Receivables and any other interest of the undersigned
in such Transaction Equipment, including any Liquidation Proceeds;
(iii) the interest and rights of the undersigned in any proceeds with
respect to the Receivables from claims on any physical damage, credit life,
liability or disability insurance policies covering Financed Equipment or
Obligors, as the case may be; (iv) the interest of the undersigned in any
proceeds from recourse to, or other payment by, Dealers on Receivables; and
(v) the proceeds of any and all of the foregoing.
This
Assignment is made pursuant to and upon the representations, warranties and
agreements on the part of the undersigned contained in the Purchase Agreement
and is to be governed by the Purchase Agreement.
Capitalized
terms used herein and not otherwise defined shall have the meaning assigned
to
them in the Purchase Agreement.
IN
WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed
as of the date first set forth above.
CATERPILLAR
FINANCIAL SERVICES
CORPORATION
By: _________________________________
Name:
Title:
1