Cat 2004-a Custodial Agreement

CUSTODIAL AGREEMENT THIS CUSTODIAL AGREEMENT is made as of May 1, 2004, by and amongCATERPILLAR FINANCIAL SERVICES CORPORATION (the "Originator"), CATERPILLARFINANCIAL SERVICES CORPORATION, as servicer (the "Servicer"), CATERPILLARFINANCIAL FUNDING CORPORATION (the "Seller"), CATERPILLAR FINANCIAL ASSETTRUST 2004-A (the "Trust"), U.S. BANK NATIONAL ASSOCIATION, as indenturetrustee (the "Indenture Trustee") and U.S. BANK NATIONAL ASSOCIATION, ascustodian (the "Custodian"). RECITALS WHEREAS, before the Closing Date the Originator is the owner ofthe Receivables. WHEREAS, pursuant to the Purchase Agreement, the Originator willsell the Receivables to the Seller. WHEREAS, pursuant to the Sale and Servicing Agreement, the Sellerwill sell the Receivables acquired pursuant to the Purchase Agreement to theTrust. WHEREAS, pursuant to the Indenture, the Trust will Grant to theIndenture Trustee, as trustee all of the Trust's right, title and interestin, to and under the Receivables and the other assets of the Trust. WHEREAS, during such time as the Originator, the Seller, theTrust or the Indenture Trustee owns or has an interest in the Receivables,such Person or Persons shall be referred to herein as the "ReceivablesHolder," and the Custodian shall hold all Receivables for the benefit of theOriginator, the Seller, the Trust and the Indenture Trustee during such timeas such Person is a Receivables Holder. WHEREAS, in connection with the foregoing, the parties heretodesire to provide for the custody and management of the Receivablestransferred pursuant to the Purchase Agreement, the Sale and ServicingAgreement and the Indenture (each, a "Transfer"). WHEREAS, the Custodian is a financial institution regulated bythe Comptroller of the Currency of the United States. WHEREAS, the Originator, the Seller, the Trust and the IndentureTrustee, during such time as each such Person is a Receivables Holder, desireto have the Custodian (i) hold the Receivables as custodian for each suchparty, (ii) take possession of the Contracts and the Receivable Files relatedto the Receivables, along with certain other documents specified in thisAgreement, as the custodian for, and bailee of, such Receivables Holder inaccordance with the terms and conditions of this Agreement, and (iii) retainpossession of the Contracts and Receivable Files and such other documents ascustodian for and bailee of the Indenture Trustee; and the Custodian iswilling and able to perform the duties and obligations of a custodian andbailee as set forth herein. WHEREAS, the Servicer will act as servicer of the Receivablespursuant to the Sale and Servicing Agreement. NOW, THEREFORE, in consideration of the premises and the mutualagreements hereinafter set forth, the Originator, the Servicer, the Seller,the Trust, the Indenture Trustee and the Custodian hereby agree as follows: Article I DEFINITIONSSection 1.1. Definitions . Certain capitalized terms used in thisAgreement and not otherwise defined herein shall have the respective meaningsassigned them in Article I of the Sale and Servicing Agreement dated as ofMay 1, 2004 (the "Sale and Servicing Agreement") among the Trust, the Sellerand the Servicer or in Article I of the Indenture dated as of May 1, 2004(the "Indenture") between the Trust and the Indenture Trustee. Allreferences in this Agreement to Articles, Sections, Subsections and Exhibitsare to the same contained in or attached to this Agreement unless otherwisespecified. All terms defined in this Agreement shall have the definedmeanings when used in any certificate, notice or other document made ordelivered pursuant hereto unless otherwise defined therein.Section 1.2. Interpretation of the Agreement . In interpreting anymistake or ambiguity contained herein, the parties hereto agree to resolveany such mistakes or ambiguities in favor of the Indenture Trustee. Article II CUSTODIAL ARRANGEMENTSection 2.1. Appointment as Custodian . Subject to the terms andconditions hereof, the Seller, the Trust and the Indenture Trustee, as theirinterests may appear, hereby appoint U.S. Bank National Association, and U.S.Bank National Association hereby accepts such appointment, as Custodian tomaintain custody of the Receivables, the Contracts and the Receivable Filesduring such time as each such Person is a Receivables Holder.Section 2.2. Maintenance of Office . The Custodian agrees to maintaineach Receivable File identified in Section 3.03 of the Sale and ServicingAgreement and Section 2.04 of the Purchase Agreement at its office located at4040 S. Eastern Avenue, Suite 344, Las Vegas, Nevada 89119, or at such ofits other offices in Nevada as Custodian shall designate from time to timeafter giving the Originator, the Seller, the Trust, each of the RatingAgencies and the Indenture Trustee prior written notice, which office shallbe maintained separate from the offices of the Originator, the Seller and theServicer and shall be at all times under the exclusive dominion of theCustodian. None of the Custodian's employees shall be employees of theOriginator, the Seller, the Servicer or any of the Servicer's Affiliates. Article III CUSTODIAL ARRANGEMENTSection 3.1. Transfer of Receivables; Delivery of Documents . Withinthirty (30) days of the Closing Date, the Originator shall deliver, or causeto be delivered, to the Custodian, the Receivable Files, including withoutlimitation, the Original Contract evidencing each Receivable. On the date on which the Originator delivers the Receivable Filesto the Custodian (the "Delivery Date"), the Originator shall deliver to theCustodian a transfer certificate in form of Exhibit C hereto (a "TransferCertificate"), evidencing the Transfer of the Receivables from the Originatorto the Seller pursuant to the Purchase Agreement. Upon its receipt of suchTransfer Certificate, the Custodian shall acknowledge such TransferCertificate (as provided thereon) and deliver to the Seller a CustodianCertification (as defined in Section 3.2 below) (the "Seller's CustodianCertification") certifying that it is holding the Receivable Files deliveredto it by the Originator on behalf of the Seller. Upon receipt of the Seller's Custodian Certification, the Sellershall deliver to the Custodian a Transfer Certificate evidencing the Transferof the Receivables from the Seller to the Trust pursuant to the Sale andServicing Agreement. Upon its receipt of such Transfer Certificate, theCustodian shall acknowledge such Transfer Certificate as provided thereon anddeliver to the Trust a Custodian Certification (the "Trust's CustodianCertification") certifying that it is holding the Receivable Files deliveredto it by the Originator on behalf of the Trust. Upon receipt of the Trust's Custodian Certification, the Trustshall deliver to the Custodian a Transfer Certificate evidencing the Transferof the Receivables from the Trust to the Indenture Trustee pursuant to theIndenture. Upon its receipt of such Transfer Certificate, the Custodianshall acknowledge such Transfer Certificate as provided thereon and deliverto the Indenture Trustee a Custodian Certification (the "Trustee's CustodianCertification") certifying that it is holding the Receivable Files deliveredto it by the Originator on behalf of the Indenture Trustee. Custodian hereby acknowledges receipt of the Purchase Agreement,the Sale and Servicing Agreement and the Indenture. Custodian furtheracknowledges that, on the Delivery Date and pursuant to this Agreement, thePurchase Agreement, the Sale and Servicing Agreement and the Indenture,Custodian will be given possession of the Receivable Files relating to theReceivables constituting a portion of the Collateral, each of whichReceivables will be described specifically on Schedule A to each of thePurchase Agreement, the Sale and Servicing Agreement and the Indenture, acopy of which will be delivered to Custodian simultaneously with the deliveryof the Receivable Files relating thereto. On and after the Delivery Date andthe completion of the Transfers described above, and so long as thisAgreement shall remain in effect, Custodian shall hold the Receivable Filesnow and thereafter, from time to time, in its sole custody and control ascustodian for and bailee of the Indenture Trustee, as trustee, unless anduntil released from the lien of the Indenture and otherwise in accordancewith the Sale and Servicing Agreement, in which event, Custodian shall holdthe Receivables and the Receivable Files as trustee and bailee for thebenefit of the applicable Receivables Holder.Section 3.2. Certification . Custodian shall hold all documents in eachReceivable File on behalf of the Indenture Trustee pursuant to thisAgreement. Upon consummation of a Transfer in accordance with terms hereof,Custodian shall, with respect to the Receivables transferred to a ReceivablesHolder in connection with a Transfer, number, execute and deliver to theapplicable Receivables Holder (with a copy to the Servicer) one or morecertifications (each, a "Custodian Certification") in the form attachedhereto as Exhibit A . Upon issuance of a Custodian Certification with respectto any Transfer, the Custodian Certification relating to such Receivablepreviously delivered shall be deemed and marked cancelled with respect tosuch Receivable.Section 3.3. Release of Receivable Files . From time to time and asprovided in the Sale and Servicing Agreement, Custodian is hereby authorized,upon written request of Servicer (with the approval of the Indenture Trustee,which approval shall not be unreasonably withheld) in the form annexed heretoas Exhibit B , to release to the Servicer the Receivable File related to anyReceivable or the specific documents identified in such request to theServicer. All documents so released to the Servicer shall be held by it intrust for the benefit of the Indenture Trustee. Servicer shall return theReceivable File, or such other documents which have been released toServicer, to Custodian when Servicer's need therefor in connection with aforeclosure, modification, termination or repossession no longer exists,unless the Receivable shall be satisfied in full or liquidated, in whichcase, upon receipt of a certification to such effect from Servicer toCustodian in the form annexed hereto as Exhibit B , the related ReceivableFile shall be released by Custodian to Servicer, and Custodian shallthereupon reflect any such liquidation on the related Receivable. Pursuantto Section 4.07 of the Sale and Servicing Agreement, (i) the Servicer shallreturn a Receivable File released to it within five (5) Business Days of suchrelease and (ii) if such Receivable File has not been returned to theCustodian within such five (5) Business Day period, the Servicer shallrepurchase the related Receivable. Notwithstanding anything herein or in any other Basic Document tothe contrary, (i) the Servicer shall return any Receivable File released toit in connection with a modification or extension of a Receivable to theCustodian on the same day such file is released and (ii) the Custodian shallnot release a Receivable File to the Servicer in connection with amodification or extension of a Receivable if, after giving effect to therelease of such Receivable File, the aggregate Principal Balance of allReceivables having released Receivable Files in connection with modificationsand extensions exceeds $500,000.Section 3.4. Purchase; Payment In Full . Upon the purchase of anyReceivable pursuant to Section 3.02, 3.05 or 4.07 of the Sale and ServicingAgreement or Section 6.02 of the Purchase Agreement, or upon the payment infull of any Receivable, which shall be evidenced by Custodian's receipt ofthe request for release in the form annexed hereto as Exhibit B , Custodianshall promptly release the related Receivable File to Servicer and thesecurity interest in such Receivable and related Receivable File granted bythe Trust to the Indenture Trustee pursuant to the Indenture shall terminatewithout any further action by the Custodian, the Originator, the Seller orthe Indenture Trustee.Section 3.5. Other Duties of Custodian . The Custodian shall have andperform the other following powers and duties:(a) Safekeeping . To segregate the Receivables and Receivable Files from all other receivables, leases and installment sale contracts and similar records in its possession, to identify the Receivable Files as being held and to hold the Receivable Files for and on behalf of the Receivables Holders (which, on and after the Closing Date, shall be the Indenture Trustee), to maintain accurate records pertaining to each Contract and Receivable in the Receivable Files, to provide monthly a list of all Receivable Files held by it, together with a current exception report, and to provide such information as is necessary to enable the Servicer to deliver the reports and notifications required by Section 4.09 of the Sale and Servicing Agreement. Custodian will promptly report to the Indenture Trustee any failure on its part to hold the Receivable Files as herein provided and promptly take appropriate action to remedy any such failure.(b) Administration; Reports . In general, to attend to all non-discretionary details in connection with maintaining custody of the Receivable Files on behalf of the Receivables Holders as may be expressly provided herein or as may be required or customary for a custodian or bailee. In addition, Custodian shall assist the Indenture Trustee and the Servicer (at Servicer's cost) generally in the preparation of reports to holders or to regulatory bodies to the extent necessitated by Custodian's custody of the Receivable Files.Section 3.6. Access to Records . Custodian shall permit the IndentureTrustee and its duly authorized agents, attorneys or auditors to inspect theReceivable Files and the books and records maintained by the Custodianpursuant hereto at such reasonable times as they may reasonably request,subject only to compliance with the terms of the Sale and Servicing Agreement.Section 3.7. Instructions; Authority to Act . The Custodian shall bedeemed to have received proper instructions with respect to the ReceivableFiles upon its receipt of written instructions signed by a ResponsibleOfficer of the Indenture Trustee and may conclusively rely on suchinstructions. In addition, the Custodian may conclusively rely upon anyrelease request delivered to it in the form attached as Exhibit B hereto dulyexecuted by an authorized officer of the Servicer as set forth on Annex 1 toExhibit B and, if required by the terms thereof, by the Indenture Trustee. Article IV OWNERSHIP AND TRANSFER OF RECEIVABLESSection 4.1. Transfer of Receivables . The delivery of Receivables inconnection with any Transfer shall occur in the following manner:(i) Upon receipt of a Transfer Certificate, Custodian shall deliver a Custodian Certification certifying that it is holding the Receivable Files delivered to it on behalf of the transferee referred to in such Transfer Certificate;(ii) Custodian shall within fifteen (15) days of its receipt of the delivery of the Receivable Files:(a) determine whether each Receivable File listed on the Schedule of Receivables has been delivered to Custodian, and whether Custodian is able to deliver a Custodian Certification certifying that it is in possession of each Receivable File;(b) promptly advise the applicable Receivables Holder, the Indenture Trustee, the Originator, the Servicer, the Seller and each of the Rating Agencies by telephone or by facsimile transmission if it determines that any Receivable File referred to in clause (a) above has not been so delivered and take no further action under this Section 4.1 until it determines that such Receivable File has been so delivered; and(c) upon determining that such Receivable File has been so delivered, Custodian shall issue and deliver to applicable Receivables Holder a Custodian Certification certifying that it is in possession of each Receivable File.Section 4.2. Substitution and Purchase of Receivables . The purchase ofReceivables pursuant to Section 6.02 of the Purchase Agreement andSection 3.02, Section 3.05(b) or Section 4.07 of the Sale and ServicingAgreement shall occur in the following manner:(i) On or before the date of such purchase, the Servicer shall send the Indenture Trustee notice, with a copy to Custodian, indicating the Receivables to be purchased and the aggregate purchase prices to be paid on such date.(ii) Upon receiving written confirmation in the form annexed hereto as Exhibit B , from the Seller and the Trust that they have received the applicable Purchase Amount, Custodian shall return to the applicable party (as identified to the Custodian by the Indenture Trustee) Receivable Files related to the Receivables purchased on such date.Section 4.3. No Service Charge for Transfer of Receivables . No servicecharge shall be made for any transfer of Receivables, but Custodian mayrequire payment from the relevant transferor (other than the IndentureTrustee) of a sum sufficient to cover any tax or governmental charge that maybe imposed in connection with any transfer of Receivables.Section 4.4. Defeasance . When a Receivable is purchased by theServicer, the Seller or the Originator pursuant to the terms of the PurchaseAgreement and the Sale and Servicing Agreement, the applicable ReceivablesHolder's interest in such Receivable and all Collateral with respect to suchReceivable shall terminate, such Receivable and related Collateral shall beconveyed to the Servicer, the Seller or the Originator, as applicable, andthe Receivables Holder's rights, title and interest therein shall cease, andthe Indenture Trustee shal ...