exv10w3



 






Exhibit 10.3




CUSTODIAL AGREEMENT




          THIS CUSTODIAL AGREEMENT is made as of April 1, 2005 (as amended, modified or supplemented
from time to time, this “Agreement”), by and among CATERPILLAR FINANCIAL SERVICES CORPORATION, as
originator and as servicer (the “Originator” and the “Servicer”, respectively), CATERPILLAR
FINANCIAL FUNDING CORPORATION, as seller (the “Seller”), CATERPILLAR FINANCIAL ASSET TRUST 2005-A
(the “Trust”), U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Indenture Trustee”), and U.S. BANK
NATIONAL ASSOCIATION, as custodian (the “Custodian”).




RECITALS




          WHEREAS, before the Closing Date the Originator is the owner of the Receivables;




          WHEREAS, pursuant to the Purchase Agreement, the Originator will sell the Receivables to the
Seller;




          WHEREAS, pursuant to the Sale and Servicing Agreement, the Seller will sell the Receivables
acquired pursuant to the Purchase Agreement to the Trust;




          WHEREAS, pursuant to the Indenture, the Trust will Grant to the Indenture Trustee, as trustee
all of the Trust’s right, title and interest in, to and under the Receivables and the other assets
of the Trust;




          WHEREAS, during such time as the Originator, the Seller, the Trust or the Indenture Trustee
owns or has an interest in the Receivables, such Person or Persons shall be referred to herein as
the “Receivables Holder,” and the Custodian shall hold all Receivables for the benefit of the
Originator, the Seller, the Trust and the Indenture Trustee during such time as such Person is a
Receivables Holder;




          WHEREAS, in connection with the foregoing, the parties hereto desire to provide for the
custody and management of the Receivables transferred pursuant to the Purchase Agreement, the Sale
and Servicing Agreement and the Indenture (each, a “Transfer”);




          WHEREAS, the Custodian is a financial institution regulated by the Comptroller of the Currency
of the United States;




          WHEREAS, the Originator, the Seller, the Trust and the Indenture Trustee, during such time as
each such Person is a Receivables Holder, desire to have the Custodian (i) hold the Receivables as
custodian for each such party, (ii) take possession of the Contracts and the Receivable Files
related to the Receivables, along with certain other documents specified in this Agreement, as the
custodian for, and bailee of, such Receivables Holder in accordance with the terms and conditions
of this Agreement, and (iii) retain possession of the Contracts and Receivable Files and such other
documents as custodian for and bailee of the Indenture Trustee; and the Custodian is willing and
able to perform the duties and obligations of a custodian and bailee as set forth herein; and




 









 








          WHEREAS, the Servicer will act as servicer of the Receivables pursuant to the Sale and
Servicing Agreement.




          NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set
forth, the Originator, the Servicer, the Seller, the Trust, the Indenture Trustee and the Custodian
hereby agree as follows:




ARTICLE I




DEFINITIONS




          Section 1.1. Definitions. Certain capitalized terms used in this Agreement and not
otherwise defined herein shall have the respective meanings assigned them in the Sale and Servicing
Agreement, dated as of April 1, 2005 (as amended, modified or supplemented from time to time, the
“Sale and Servicing Agreement”), among the Trust, the Seller and the Servicer or in the Indenture,
dated as of April 1, 2005 (as amended, modified or supplemented from time to time, the
“Indenture”), between the Trust and the Indenture Trustee. All references in this Agreement to
Articles, Sections, Subsections and Exhibits are to the same contained in or attached to this
Agreement unless otherwise specified. All terms defined in this Agreement shall have the defined
meanings when used in any certificate, notice or other document made or delivered pursuant hereto
unless otherwise defined therein. As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, 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. 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; the term “including” shall mean “including without limitation”; and
the term “or” is not exclusive. 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.




          Section 1.2. Interpretation of the Agreement. In interpreting any mistake or
ambiguity contained herein, the parties hereto agree to resolve any such mistakes or ambiguities in
favor of the Indenture Trustee.




ARTICLE II




CUSTODIAL ARRANGEMENT




          Section 2.1. Appointment as Custodian. Subject to the terms and conditions hereof,
the Seller, the Trust and the Indenture Trustee, as their interests may appear, hereby appoint U.S.
Bank National Association, and U.S. Bank National Association hereby accepts




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such appointment, as Custodian to maintain custody of the Receivables, the Contracts
and the Receivable Files during such time as each such Person is a Receivables Holder.




          Section 2.2. Maintenance of Office. The Custodian agrees to maintain each Receivable
File identified in Section 3.03 of the Sale and Servicing Agreement and Section
2.04 of the Purchase Agreement at its office located at 4040 S. Eastern Avenue, Suite 344, Las
Vegas, Nevada 89119, or at such of its other offices in Nevada as Custodian shall designate from
time to time after giving the Originator, the Seller, the Trust, each of the Rating Agencies and
the Indenture Trustee prior written notice, which office shall be maintained separate from the
offices of the Originator, the Seller and the Servicer and shall be at all times under the
exclusive dominion of the Custodian. None of the Custodian’s employees shall be employees of the
Originator, the Seller, the Servicer or any of the Servicer’s Affiliates.




ARTICLE III




CUSTODIAL ARRANGEMENT




          Section 3.1. Transfer of Receivables; Delivery of Documents. Within 30 days of the
Closing Date, the Originator shall deliver, or cause to be delivered, to the Custodian, the
Receivable Files, including the Original Contract evidencing each Receivable.




          On the date on which the Originator delivers the Receivable Files to the Custodian (the
“Delivery Date”), the Originator shall deliver to the Custodian a transfer certificate in
form of Exhibit C (a “Transfer Certificate”), acknowledging the Transfer of the
Receivables from the Originator to the Seller pursuant to the Purchase Agreement. Upon its receipt
of such Transfer Certificate, the Custodian shall acknowledge such Transfer Certificate (as
provided thereon) and deliver to the Seller a Custodian Certification (as defined in Section
3.2) (the “Seller’s Custodian Certification”) certifying that it is holding the
Receivable Files delivered to it by the Originator on behalf of the Seller.




          Upon receipt of the Seller’s Custodian Certification, the Seller shall deliver to the
Custodian a Transfer Certificate acknowledging the Transfer of the Receivables from the Seller to
the Trust pursuant to the Sale and Servicing Agreement. Upon its receipt of such Transfer
Certificate, the Custodian shall acknowledge such Transfer Certificate as provided thereon and
deliver to the Trust a Custodian Certification (the “Trust’s Custodian Certification”)
certifying that it is holding the Receivable Files delivered to it by the Originator on behalf of
the Trust.




          Upon receipt of the Trust’s Custodian Certification, the Trust shall deliver to the Custodian
a Transfer Certificate acknowledging the Transfer of the Receivables from the Trust to the
Indenture Trustee pursuant to the Indenture. Upon its receipt of such Transfer Certificate, the
Custodian shall acknowledge such Transfer Certificate as provided thereon and deliver to the
Indenture Trustee a Custodian Certification (the “Trustee’s Custodian Certification”)
certifying that it is holding the Receivable Files delivered to 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 further acknowledges that, on the Delivery




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Date and pursuant to this Agreement, the Purchase Agreement, the Sale and Servicing Agreement
and the Indenture, Custodian will be given possession of the Receivable Files relating to the
Receivables constituting a portion of the Collateral, each of which Receivables will be described
specifically on Schedule A to each of the Purchase Agreement, the Sale and Servicing Agreement and
the Indenture, a copy of which will be delivered to Custodian simultaneously with the delivery of
the Receivable Files relating thereto. On and after the Delivery Date and the completion of the
Transfers described above, and so long as this Agreement shall remain in effect, Custodian shall
hold the Receivable Files now and thereafter, from time to time, in its sole custody and control as
custodian for and bailee of the Indenture Trustee, as trustee, unless and until released from the
lien of the Indenture and otherwise in accordance with the Sale and Servicing Agreement, in which
event, Custodian shall hold the Receivables and the Receivable Files as trustee and bailee for the
benefit of the applicable Receivables Holder.




          Section 3.2. Certification. Custodian shall hold all documents in each Receivable
File on behalf of the Indenture Trustee pursuant to this Agreement. Upon consummation of a
Transfer in accordance with terms hereof, Custodian shall, with respect to the Receivables
transferred to a Receivables Holder in connection with a Transfer, number, execute and deliver to
the applicable Receivables Holder (with a copy to the Servicer) one or more certifications (each, a
“Custodian Certification”) in the form attached as Exhibit A. Upon issuance of a
Custodian Certification with respect to any Transfer, the Custodian Certification relating to such
Receivable previously delivered shall be deemed and marked cancelled with respect to such
Receivable.




          Section 3.3. Release of Receivable Files. From time to time and as provided in the
Sale and Servicing Agreement, Custodian is hereby authorized, upon written request of Servicer
(with the approval of the Indenture Trustee, which approval shall not be unreasonably withheld) in
the form annexed as Exhibit B, to release to the Servicer the Receivable File related to
any Receivable or the specific documents identified in such request to the Servicer. All documents
so released to the Servicer shall be held by it in trust for the benefit of the Indenture Trustee.
Servicer shall return the Receivable File, or such other documents which have been released to
Servicer, to Custodian when Servicer’s need therefor in connection with a foreclosure,
modification, termination or repossession no longer exists, unless the Receivable shall be
satisfied in full or liquidated, in which case, upon receipt of a certification to such effect from
Servicer to Custodian in the form annexed as Exhibit B, the related Receivable File shall
be released by Custodian to Servicer, and Custodian shall thereupon reflect any such liquidation on
the related Receivable. Pursuant to Section 4.07 of the Sale and Servicing Agreement, (i)
the Servicer shall return a Receivable File released to it within five Business Days of such
release and (ii) if such Receivable File has not been returned to the Custodian within such five
Business Day period, the Servicer shall repurchase the related Receivable.




          Notwithstanding anything herein or in any other Basic Document to the contrary, (i) the
Servicer shall return any Receivable File released to it in connection with a modification or
extension of a Receivable to the Custodian on the same day such file is released and (ii) the
Custodian shall not release a Receivable File to the Servicer in connection with a modification or
extension of a Receivable if, after giving effect to the release of such Receivable File, the
aggregate Principal Balance of all Receivables having released Receivable Files in connection with
modifications and extensions exceeds $500,000.




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          Section 3.4. Purchase; Payment In Full. Upon the purchase of any Receivable pursuant
to Section 3.02, 3.05 or 4.07 of the Sale and Servicing Agreement or
Section 6.02 of the Purchase Agreement, or upon the payment in full of any Receivable,
which shall be evidenced by Custodian’s receipt of the request for release in the form annexed
hereto as Exhibit B, Custodian shall promptly release the related Receivable File to
Servicer and the security interest in such Receivable and related Receivable File granted by the
Trust to the Indenture Trustee pursuant to the Indenture shall terminate without any further action
by the Custodian, the Originator, the Seller or the Indenture Trustee.




          Section 3.5. Other Duties of Custodian. The Custodian shall have and perform the
other following powers and duties:





     (a) Safekeeping. To segregate the Receivables and 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 Delivery 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 Indenture Trustee and its
duly authorized agents, attorneys or auditors to inspect the Receivable Files and the books and
records maintained by the Custodian pursuant hereto at such reasonable times as they may reasonably
request, subject only to compliance with the terms of the Sale and Servicing Agreement.




          Section 3.7. Instructions; Authority to Act. The Custodian shall be deemed to have
received proper instructions with respect to the Receivable Files upon its receipt of written
instructions signed by a Responsible Officer of the Indenture Trustee and may conclusively rely on
such instructions. In addition, the Custodian may conclusively rely upon any release request
delivered to it in the form attached as Exhibit B duly executed by an authorized officer of
the Servicer as set forth on Annex 1 to Exhibit B and, if required by the terms thereof, by the
Indenture Trustee.




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ARTICLE IV




OWNERSHIP AND TRANSFER OF RECEIVABLES




          Section 4.1. Transfer of Receivables. The delivery of Receivables in connection 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 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 of Receivables
pursuant to Section 6.02 of the Purchase Agreement and Section 3.02, Section
3.05(b) or Section 4.07 of the Sale and Servicing Agreement shall occur in the
following manner:





     (i) On or before the date of such purchase, the Servicer shall send the
Indenture Trustee notice, with a copy to Custodian, indicating the Receivables to be
purchased and the aggregate purchase prices to be paid on such date.




     (ii) Upon receiving written confirmation in the form annexed 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 service charge shall
be made for any transfer of Receivables, but Custodian may require payment
from the




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relevant transferor (other than the Indenture Trustee) of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any transfer of Receivables.




          Section 4.4. Defeasance. When a Receivable is purchased by the Servicer, the Seller
or the Originator pursuant to the terms of the Purchase Agreement and the Sale and Servicing
Agreement, the applicable Receivables Holder’s interest in such Receivable and all Collateral with
respect to such Receivable shall terminate, such Receivable and related Collateral shall be
conveyed to the Servicer, the Seller or the Originator, as applicable, and the Receivables Holder’s
rights, title and interest therein shall cease, and the Indenture Trustee shall execute such
instruments acknowledging termination and discharge of such pledge and security interest as are
required by applicable law.




ARTICLE V




CUSTODIAN




          Section 5.1. Representations, Warranties and Covenants of Custodian. Custodian hereby
represents and warrants to, and covenants with, the Originator, the Seller, the Servicer, the Trust
and the Indenture Trustee, that as of the date of each Custodian Certification:





     (i) Custodian is duly organized, validly existing and in good standing under
the laws of the United States;




     (ii) Custodian has the full power and authority to hold each Receivable, to
hold title to the Receivables as custodian on behalf of the Receivables Holders, and
to execute, deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of Custodian,
enforceable against it in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally and by the availability of equitable
remedies;




     (iii) Neither the execution and delivery of this Agreement, the delivery of
Receivables to Custodian, the issuance of the Custodian Certifications, the
consummation of the transactions contemplated hereby or thereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement will conflict with
or result in a breach of any of the terms, conditions or provisions of Custodian’s
charter or bylaws or any agreement or instrument to which Custodian is now a party
or by which it is bound, or constitute a default or result in an acceleration under
any of the foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Custodian or its property is subject; except that
no representation or warranty is made as to compliance with laws and regulations,
other than those of the United States and the State of
Illinois, relating to qualifications, licensure or regulation of custodians of
receivables originated in states other than Illinois;



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     (iv) Custodian does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this Agreement;




     (v) To Custodian’s knowledge after due inquiry, there is no litigation pending
or threatened, which if determined adversely to Custodian, would adversely affect
the execution, delivery or enforceability of this Agreement, or any of the duties or
obligations of Custodian hereunder, or which would have a material adverse effect on
the financial condition of Custodian;




     (vi) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by Custodian
of or compliance by Custodian with this Agreement or the consummation of the
transactions contemplated hereby; except that no representation or warranty is made
as to consents, approvals, authorizations or orders of any courts or governmental
agencies or bodies, other than those of the United States and the State of Illinois,
relating to qualifications, licensure or regulation of custodians of receivables
originated in states other than Illinois;




     (vii) Upon written request of the Indenture Trustee, Custodian shall take such
steps as requested by the Indenture Trustee to protect or maintain any interest in
any Receivable; and




     (viii) The Custodian has not been notified by any party other than the
Originator, the Seller, the Trust and the Indenture Trustee that any such third
party claims an interest in the Receivables or the Receivable Files nor is any such
party requesting the Custodian to act as a bailee with respect to the Receivables or
the Receivable Files.



          Custodian makes no representations or warranties as to the validity, legality, sufficiency,
enforceability, perfection, genuineness or prior recorded status of any of the documents contained
in each Receivable File or the collectability, insurability, effectiveness or suitability of any
Receivable.




          Section 5.2. Charges and Expenses. The Seller will pay all fees of Custodian in
connection with the performance of its duties hereunder in accordance with written agreements to be
entered into from time to time between the parties hereto and Custodian, including fees and
expenses of counsel incurred by Custodian in the performance of its duties hereunder; provided,
however, that (i) Custodian shall in no event acquire any lien upon any Receivable deposited under
this Agreement or the Purchase Agreement or the Sale and Servicing Agreement, or any claim against
any Receivables Holder by reason of the failure of the Seller to pay any of such charges or
expenses and (ii) in the event the Seller fails to pay the fees and expenses of Custodian as set
forth in such written agreements, Custodian shall have no obligation to take actions or incur costs
in connection with this Agreement unless the Seller or
another Person has made adequate provision for payment of Custodian’s fees and expenses. The
Seller shall indemnify the Custodian against payment of any documentary stamp taxes, intangible
taxes and





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other similar taxes, penalties and interest incurred in connection with the Receivables
and the transactions contemplated hereby.




          Section 5.3. No Adverse Interests. Custodian covenants and warrants to the
Originator, the Seller, the Servicer, the Trust and the Indenture Trustee, that as of the date of
each Custodian Certification: (i) it holds no adverse interest, by way of security or otherwise,
in any Receivable; and (ii) the execution of this Agreement and the creation of the custodial
relationship hereunder does not create any interest, by way of security or otherwise, of Custodian
in or to any Receivable, other than Custodian’s rights as custodian hereunder.




          Section 5.4. Inspections. Upon reasonable prior written notice to Custodian, the
Servicer, the Seller, the Indenture Trustee, the Trust and such Person’s agents, accountants,
attorneys and auditors will be permitted during normal business hours to examine Custodian’s
documents, records and other papers in possession of or under the control of Custodian relating to
the Receivables.




          Section 5.5. Insurance. Custodian shall, at its own expense, maintain at all times
during the existence of this Agreement and keep in full force and effect, (1) fidelity insurance,
(2) theft of documents insurance, and (3) forgery insurance subject to deductibles, all as is
customary for amounts and with insurance companies reasonably acceptable to the Servicer and the
Indenture Trustee. A certificate of the respective insurer as to each such policy or a blanket
policy for such coverage shall be furnished to the Servicer or the Indenture Trustee, upon request,
containing the insurer’s statement or endorsement that such insurance shall not terminate prior to
receipt by such party, by registered mail, of 10 days advance notice thereof.




          Section 5.6. Limitation of Liability. Custodian assumes no obligation, and shall be
subject to no liability, under this Agreement, except for its negligence or willful misconduct in
the performance of the obligations and duties as are specifically set forth herein. Custodian
shall not be liable for any action or non-action by it in reliance on advice of counsel believed by
it in good faith to be competent to give such advice. Custodian may rely and shall be protected in
acting upon any written notice, order, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties. Except with respect
to the willful misconduct of the Custodian, neither the Custodian nor its directors, officers and
agents shall be held liable for any indirect or consequential damages resulting from any action
taken or omitted to be taken by it or them under or in connection with this Agreement, even if
advised of the possibility of such damages. The provisions of this Section 5.6 shall survive the
termination of this Agreement.




          Section 5.7. Indemnification. Servicer agrees to indemnify Custodian against, and to
hold it harmless from, any liabilities, and any related out-of-pocket expenses, which it may incur
in connection with this Agreement, the Sale and Servicing Agreement, the Purchase Agreement or the
Custodian Certifications, other than any liabilities and expenses arising out of Custodian’s
negligence or willful misconduct. The Custodian agrees to indemnify, defend and hold harmless the
Indenture Trustee against any liability to Noteholders
or Certificateholder arising out of the negligence or willful misconduct of the Custodian (a)
in the preparation or execution of any Custodian Certification or (b) resulting in the loss of
Receivable Files in the custody of the Custodian. This indemnity shall include indemnification as
to reasonable




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attorneys’ fees and costs, whether or not suit be brought, and including such fees
and costs on appeal. The Indenture Trustee shall give prompt written notice to the Custodian of
any claim for which indemnity is or may be sought and shall afford to the Custodian the opportunity
to defend such claim.




          Section 5.8. Further Rights of Custodian.





     (a) If the Custodian is at any time uncertain of its obligations hereunder, the
Custodian, upon prior written notice to the Indenture Trustee, the Trust, the Originator,
the Seller and the Servicer, may refrain from taking any action with respect to such matter
until such uncertainty is removed. If conflicting demands are made on the Custodian with
respect to any matter, the Indenture Trustee’s demand shall control, except during the
period prior to the issuance of the Trustee’s Custodian Certification pursuant to Section
3.1 hereof, when the applicable Receivables Holder’s demand shall control and the Custodian
shall have the right to rely on such controlling demand. The Custodian shall have the right
in any such case to interplead any or all of the documents contained in the Receivable Files
in a court of competent jurisdiction and, upon delivery thereof, shall have no further
obligations thereunder with respect to such documents.




     (b) The obligations of the Custodian shall be determined solely by the express
provisions of this Agreement. No representation, warranty, covenant or obligation of the
Custodian shall be implied with respect to this Agreement or the Custodian’s service
hereunder. Without limiting the generality of the foregoing statement, except as
specifically required herein, the Custodian shall be under no obligation to inspect, review
or examine the Receivable Files to determine that the contents thereof are complete,
genuine, enforceable or appropriate for the represented purpose or that they have been
actually recorded or filed in required offices or that they are other than what they purport
to be on their face.




     (c) No provision of this Agreement shall require the Custodian to spend or risk its own
funds or otherwise incur financial liability in performance of its duties under this
Agreement unless, pursuant to Section 5.2 hereof, adequate provision has been made for the
reimbursement of the Custodian’s expenses hereunder.



ARTICLE VI




MISCELLANEOUS PROVISIONS




          Section 6.1. Amendment. This Agreement may be amended from time to time by Custodian,
the Originator, the Seller, the Servicer, the Trust and the Indenture Trustee by written agreement
signed by such parties and upon satisfaction of the Rating Agency Condition.




          Section 6.2. Governing Law. THIS AGREEMENT SHALL BE 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 SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS OF LAW), AND





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THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.




          Section 6.3. Notices. All demands, notices and communication hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at or mailed by
overnight mail, certified mail or registered mail, postage prepaid, to (i) in the case of the
Servicer and the Originator, Caterpillar Financial Services Corporation, 2120 West End Avenue,
Nashville, Tennessee 37203-0001, (ii) in the case of the Seller, Caterpillar Financial Funding
Corporation, 4040 S. Eastern Avenue, Suite 344, Las Vegas, Nevada 89119, (iii) in the case of the
Trust, c/o Chase Bank USA, National Association, as Owner Trustee, c/o JPMorgan Chase, N.A., 500
Stanton Christiana Road, OPS4, 3rd Floor, Newark, Delaware 19713, with a copy to the Administrator,
Caterpillar Financial Services Corporation, 2120 West End Avenue, Nashville, Tennessee 37203-0001,
(iv) in the case of the Indenture Trustee, U.S. Bank National Association, 209 South LaSalle
Street, Suite 300, Chicago, Illinois 60604, (v) in the case of the Custodian, U.S. Bank National
Association, 209 South LaSalle Street, Suite 300, Chicago, Illinois 60604, and (vi) in the case of
the Rating Agencies, at their respective addresses set forth in the Sale and Servicing Agreement,
and, in each such case, at such other addresses as may hereafter be furnished to each party hereto
in writing.




          Section 6.4. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other covenants, agreements, provisions or terms of this
Agreement.




          Section 6.5. No Partnership. Nothing herein contained shall be deemed or construed to
create a co-partnership or joint venture between Custodian and the other parties hereto.




          Section 6.6. Termination of Agreement. This Agreement shall be terminated upon
termination of the Sale and Servicing Agreement or at the option of Indenture Trustee on 30 days
written notice to Custodian, the Servicer, the Seller, the Trust and the Originator. Concurrently
with, or as soon as practicable after, the termination of this Agreement, Custodian shall redeliver
the Receivable Files to the Indenture Trustee at such place as the Indenture Trustee may reasonably
designate and until such redelivery, Custodian shall hold such Receivable Files in its sole custody
and control as custodian for and bailee of the Indenture Trustee. In connection with the
administration of this Agreement, Custodian and the Indenture Trustee may agree from time to time
upon the interpretation of the provisions of this Agreement, as such interpretation may in their
opinion be consistent with the general tenor and purposes of this Agreement, any such
interpretation to be signed and annexed hereto.




          Section 6.7. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.






11









 








          Section 6.8. Assignment. No party hereto shall sell, pledge, assign or otherwise
transfer this Agreement without the prior written consent of the other parties hereto and
satisfaction of the Rating Agency Condition.




          Section 6.9. Headings. Section headings are for reference purposes only and shall not
be construed as a part of this Agreement.




          Section 6.10. Advice of Counsel. Custodian shall be entitled to rely and act upon
advice of counsel with respect to its performance hereunder as Custodian and shall be without
liability for any action reasonably taken pursuant to such advice, provided that such action is not
in violation of application federal or state law. This paragraph shall not negate Custodian’s
obligations under Section 5.7.




          Section 6.11. No Petition. Custodian, by entering into this Agreement, hereby
covenants and agrees that it will not at any time (whether or not this Agreement has been
terminated) institute against the Seller or the Trust, or join in any institution against the
Seller or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligations relating to the Certificate, the Notes, this Agreement or
any of the other Basic Documents.




          Section 6.12. Resignation of Custodian.





     (a) The Custodian may at any time resign and terminate its obligations under this
Agreement upon at least 90 days’ prior written notice to the Servicer and the Indenture
Trustee. The Custodian may be removed at any time at the written request of the Indenture
Trustee. In the event of such resignation or removal, the Indenture Trustee shall appoint a
successor custodian acceptable to the Servicer, which appointment must satisfy the Rating
Agency Condition. If the Indenture Trustee fails to appoint a successor custodian within 30
days, the Servicer shall appoint a successor custodian. In no event shall the resignation
of the Custodian be effective until a successor custodian is duly appointed hereunder. One
original counterpart of such instrument of appointment shall be delivered to each of the
Servicer, the Custodian and the successor custodian. The Servicer shall notify the Rating
Agencies of any such resignation or removal and the appointment of a successor custodian.




     (b) In the event of any resignation, the Custodian shall promptly transfer to the
successor custodian (or to the Indenture Trustee if no successor custodian has been
appointed) all of the Receivables (including the Receivable Files) in its possession under
this Agreement and take such other action as may be requested by the Indenture Trustee to
effect the transfer of the Custodian’s Receivable Files to the successor custodian, which
shall provide a written receipt for all such transferred documents and instruments.
On completion of such transfer, the Custodian shall be relieved of all further
responsibilities and obligations hereunder.



12









 





          Section 6.13. Limitation of Liability of Indenture Trustee and Owner Trustee.





     (a) Notwithstanding anything contained herein to the contrary, in no event shall U.S.
Bank National Association in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the Issuer.




     (b) Notwithstanding anything contained herein to the contrary, this instrument has been
countersigned by Chase Bank USA, National Association, not in its individual capacity but
solely as Owner Trustee, and in no event shall Chase Bank USA, National Association have any
liability for the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder or in any of the certificates, notices or agreements delivered pursuant
hereto, as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations of the
Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Article VI, VII and VIII of the Trust Agreement.



[Signature Pages Follow]




13









 





          IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their
respective officers thereunto duly authorized, all as of the day and year first above written.




	 	 	 	 	 
	 	 	ORIGINATOR
	 
	 	 	 	 
	 	 	CATERPILLAR FINANCIAL SERVICES
	 	 	CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	     Name:
	

	 	 	 	     Title:
	 
	 	 	 	 
	 	 	SERVICER
	 
	 	 	 	 
	 	 	CATERPILLAR FINANCIAL SERVICES
	 	 	CORPORATION, as Servicer
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	     Name:
	

	 	 	 	     Title:
	 
	 	 	 	 
	 	 	SELLER
	 
	 	 	 	 
	 	 	CATERPILLAR FINANCIAL FUNDING
	 	 	CORPORATION, as Seller
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	 	 	     Name:
	

	 	 	 	     Title:






Custodial Agreememt




 









 








	 	 	 	 	 
	 	 	TRUST
	 
	 	 	 	 
	 	 	CATERPILLAR FINANCIAL ASSET TRUST
	 	 	2005-A
	 
	 	 	 	 
	

	 	By:
	 	CHASE BANK USA, NATIONAL ASSOCIATION, not

in its individual capacity but solely as

Owner Trustee under the Trust Agreement
	 
	 	 	 	 
	

	 	By:
	 	/s/ John Cashin
	

	 	 	 	 
	

	 	 	 	     Name: John Cashin
	

	 	 	 	     Title: Vice President
	 
	 	 	 	 
	 	 	INDENTURE TRUSTEE
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as
	 	 	Indenture Trustee
	 
	 	 	 	 
	

	 	By:
	 	/s/ Melissa Rosal
	

	 	 	 	 
	

	 	 	 	     Name: Melissa Rosal
	

	 	 	 	     Title: Vice President
	 
	 	 	 	 
	 	 	CUSTODIAN
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as
	 	 	Custodian
	 
	 	 	 	 
	

	 	By:
	 	/s/ Melissa Rosal
	

	 	 	 	 
	

	 	 	 	     Name: Melissa Rosal
	

	 	 	 	     Title: Vice President






Custodial Agreememt





 










 






EXHIBIT A




CUSTODIAN CERTIFICATION




Certification No.          




[DATE]




	 	 	 
	To:

	 	[SELLER]
	

	 	[TRUST]
	

	 	[INDENTURE TRUSTEE]






	 	 	 	 	 
	

	 	Re:
	 	Custodial Agreement, dated as of April 1, 2005 (the
“Custodial Agreement”), by and among Caterpillar Financial Services
Corporation (the “Originator”), Caterpillar Financial Services Corporation, as
Servicer (the “Servicer”), Caterpillar Financial Funding Corporation (the
“Seller”), Caterpillar Financial Asset Trust 2005-A (the “Trust”), U.S. Bank
National Association, as Indenture Trustee (the “Indenture Trustee”) and
U.S. Bank National Association, as Custodian (the “Custodian”)






Gentlemen:




          [In accordance with the provisions of Section 4.1 of the above-referenced Custodial
Agreement, the Custodian hereby certifies (i) that it has received the Receivable Files delivered
to it by the Originator, and (ii) that as to each Receivable, Custodian holds such Receivable and
the other documents in the related Receivable File in its name as custodian solely on behalf of and
for the benefit of [the Seller] [the Trust] [the Indenture Trustee], without written notice (a) of
any adverse claims, liens or encumbrances, (b) that any Receivable was overdue or has been
dishonored, (c) of evidence on the face of any Receivable or other document in the Receivable File
of any security interest therein, or (d) of any defense against or claim to the Receivable by any
other party.] [In accordance with the provisions of Section 4.1 of the above-referenced
Custodial Agreement, the Custodian hereby certifies that it has received all of the Receivable
Files identified on the Receivable Schedule (the “Receivable Schedule”) attached hereto dated as of
April 1, 2005. The undersigned, as Custodian, confirms that the Receivable number in each
Receivable File conforms to the respective Receivable number listed on the Receivable Schedule.]
Capitalized terms used herein without definition shall have the meanings ascribed to them in the
Custodial Agreement.



          Custodian makes no representations or warranties as to the validity, legality, sufficiency,
enforceability, genuineness or prior recorded status of any of the documents contained in each
Receivable File or the collectability, insurability, effectiveness or suitability of any
Receivable.



A-1









 





          [Upon repurchase of the Receivables to which this Custodian Certification relates and payment
of the applicable repurchase price, the Receivables to which this Custodian Certification relates
shall be returned and released by Custodian to the Person paying such repurchase price, and this
Custodian Certification shall be and be deemed to be canceled by Custodian and of no force and
effect.]



	 	 	 	 	 
	 	 	 
	 	 	as Custodian
	 
	 	 	 	 
	

	 	By	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:






A-2









 






EXHIBIT B




REQUEST FOR RELEASE OF DOCUMENTS




[DATE]




To:     [Custodian]




	 	 	 	 	 
	

	 	Re:
	 	Custodial Agreement, dated as of April 1, 2005, by and among
Caterpillar Financial Services Corporation (the “Originator”), Caterpillar
Financial Services Corporation, as Servicer (the “Servicer”), Caterpillar
Financial Funding Corporation (the “Seller”), Caterpillar Financial Asset Trust
2005-A (the “Trust”), U.S. Bank National Association, as Indenture Trustee (the
“Indenture Trustee”) and U.S. Bank National Association, as Custodian (“Custodian”)                              






          In connection with the administration of the Receivables held by you as Custodian under the
above-referenced Custodial Agreement, [___], on behalf of [___], requests the release,
and acknowledges receipt, of the following for the Receivable described below, for the reason
indicated:



	 	 	 	 	 	 	 	 	 	 	 
	A.	 	Documents Released	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	1a.	 	 	Installment Sale Contract or Lease   b.      Principal Balance          
	

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	2.	 	 	Other documents:	 	 
	

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 
	B.	 	Obligor’s Name, Address & Zip Code:
	 
	 	 	 	 	 	 	 	 
	C.	 	Receivable Number:
	 
	 	 	 	 	 	 	 	 
	D.	 	Reason for Requesting Documents (check one)
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	1.	 	 	Receivable Paid in Full.
	

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	2.	 	 	Receivable Repurchased Pursuant to the Purchase Agreement or the Sale and
Servicing Agreement.
	

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	3.	 	 	Receivable Liquidated.
	

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	4.	 	 	Receivable in Foreclosure or Repossession Proceedings.
	

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	5.	 	 	Receivable to be modified or extended.
	

	 	 	 	 	 	 	 	 







          If box 1, 2 or 3 above is checked, and if all or part of Receivable File was
previously released to us, please release to us our previous receipt on file



B-1









 






with you, as well as any additional documents in your possession relating to
the above specified Receivable. If box 1, 2 or 3 is checked, evidence of receipt of
payment by the Indenture Trustee is required prior to release.




          If box 4 or 5 above is checked, upon our return of all of the above documents
to you as Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form.




          If box 5 above is checked, after giving effect to such release, the aggregate
Principal Balance of all Receivables released in connection with modifications and
extensions shall not exceed $500,000. In addition, upon return of the Receivable
File, we are deemed to certify that the Receivable File as returned contains the
related Receivable as so modified and extended.




          If box 1, 2 or 3 above is checked, this request is only valid if also executed
by the Seller and the Indenture Trustee.



          Documents released hereby in connection with a modification or extension must be returned to
the Custodian on the same Business Day of release.



	 	 	 	 	 
	 	 	CATERPILLAR FINANCIAL SERVICES
	 	 	CORPORATION, as Servicer
	 
	 	 	 	 
	

	 	By	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:
	

	 	 	 	Date:
	 
	 	 	 	 
	 	 	[                                                                                                    ]
	 
	 	 	 	 
	 	 	 
	

	 	By	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:
	

	 	 	 	Date:






	 	 	 	 	 
	Documents returned to Custodian:	 	 
	 
	 	 	 	 
	 	 	 
	as Custodian	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	

	 	 	 	 
	

	 	Name:	 	 
	

	 	Title:	 	 
	

	 	Date:	 	 






B-2









 






ANNEX 1




Authorized Officers of Servicer





B-3










 






EXHIBIT C




TRANSFER CERTIFICATE




	 	 	 
	U.S. Bank National Association,
	 	 
	as Custodian under the
	 	 
	Custodial Agreement (defined below)

	 	[DATE]
	209 South LaSalle Street, Suite 300,
	 	 
	Chicago, Illinois 60604
	 	 






	 	 	 
	Re:

	 	Custodial Agreement, dated as of April 1, 2005 (the “Custodial
Agreement”), by and among Caterpillar Financial Services Corporation (the
“Originator”), Caterpillar Financial Services Corporation, as Servicer (the
“Servicer”), Caterpillar Financial Funding Corporation (the “Seller”),
Caterpillar Financial Asset Trust 2005-A (the “Trust”), U.S. Bank National
Association, as Indenture Trustee (the “Indenture Trustee”) and U.S. Bank
National Association, as Custodian (“Custodian”)






To whom it may concern:




          Pursuant to Sections 3.1 and 4.1 of the above-referenced Custodial Agreement (capitalized
terms used herein but not otherwise defined shall have the same meanings assigned to such terms in
the Custodial Agreement), we hereby advise you of the Transfer by the undersigned to [the
Seller][the Trust][the Indenture Trustee] of the Receivables identified on the Receivable
Schedule[s] attached [hereto] [to the [Seller’s Custodian Certification] [Trust’s Custodian
Certification] with respect to the undersigned which we are delivering to you for cancellation].
You are instructed to hold such Receivables for [the Seller] [the Trust] [the Indenture Trustee]
and to deliver to [the Seller][the Trust][the Indenture Trustee] a [Seller’s] [Trust’s] [Trustee’s]
Custodian Certification acknowledging that you hold such Receivables.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	

	 	By	 	 
	

	 	 	 	 
	

	 	 	 	Name:
	

	 	 	 	Title:





The Custodian hereby acknowledges receipt of the foregoing
instructions and agrees to hold such Receivables solely for
[the Seller] [the Trust] [the Indenture Trustee] pursuant to
the Custodial Agreement.




	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	

	 	

	 	 
	

	 	Name:	 	 
	

	 	Title:	 	 






C-1









 












CUSTODIAL AGREEMENT




among




CATERPILLAR FINANCIAL SERVICES CORPORATION




Originator and Servicer




CATERPILLAR FINANCIAL FUNDING CORPORATION




Seller




CATERPILLAR FINANCIAL ASSET TRUST 2005-A




Issuer




and




U.S. BANK NATIONAL ASSOCIATION




Indenture Trustee and Custodian




Dated as of April 1, 2005











 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	2	 
	Section 1.1. Definitions
	 	 	2	 
	Section 1.2. Interpretation of the Agreement
	 	 	2	 
	ARTICLE II CUSTODIAL ARRANGEMENT
	 	 	2	 
	Section 2.1. Appointment as Custodian
	 	 	2	 
	Section 2.2. Maintenance of Office
	 	 	2	 
	ARTICLE III CUSTODIAL ARRANGEMENT
	 	 	3	 
	Section 3.1. Transfer of Receivables; Delivery of Documents
	 	 	3	 
	Section 3.2. Certification
	 	 	4	 
	Section 3.3. Release of Receivable Files
	 	 	4	 
	Section 3.4. Purchase; Payment In Full
	 	 	5	 
	Section 3.5. Other Duties of Custodian
	 	 	5	 
	Section 3.6. Access to Records
	 	 	6	 
	Section 3.7. Instructions; Authority to Act
	 	 	6	 
	ARTICLE IV OWNERSHIP AND TRANSFER OF RECEIVABLES
	 	 	6	 
	Section 4.1. Transfer of Receivables
	 	 	6	 
	Section 4.2. Substitution and Purchase of Receivables
	 	 	7	 
	Section 4.3. No Service Charge for Transfer of Receivables
	 	 	7	 
	Section 4.4. Defeasance
	 	 	7	 
	ARTICLE V CUSTODIAN
	 	 	7	 
	Section 5.1. Representations, Warranties and Covenants of Custodian
	 	 	7	 
	Section 5.2. Charges and Expenses
	 	 	9	 
	Section 5.3. No Adverse Interests
	 	 	9	 
	Section 5.4. Inspections
	 	 	9	 
	Section 5.5. Insurance
	 	 	9	 
	Section 5.6. Limitation of Liability
	 	 	10	 
	Section 5.7. Indemnification
	 	 	10	 
	Section 5.8. Further Rights of Custodian
	 	 	10	 
	ARTICLE VI MISCELLANEOUS PROVISIONS
	 	 	11	 






i









 





TABLE OF CONTENTS
(continued)



	 	 	 	 	 
	 	 	Page	 
	Section 6.1. Amendment
	 	 	11	 
	Section 6.2. Governing Law
	 	 	11	 
	Section 6.3. Notices
	 	 	11	 
	Section 6.4. Severability of Provisions
	 	 	11	 
	Section 6.5. No Partnership
	 	 	12	 
	Section 6.6. Termination of Agreement
	 	 	12	 
	Section 6.7. Counterparts
	 	 	12	 
	Section 6.8. Assignment
	 	 	12	 
	Section 6.9. Headings
	 	 	12	 
	Section 6.10. Advice of Counsel
	 	 	12	 
	Section 6.11. No Petition
	 	 	12	 
	Section 6.12. Resignation of Custodian
	 	 	12	 
	Section 6.13. Limitation of Liability of Indenture Trustee and Owner Trustee
	 	 	13	 






	EXHIBIT A CUSTODIAN CERTIFICATION
	 	 	A-1	 
	EXHIBIT B REQUEST FOR RELEASE OF DOCUMENTS
	 	 	B-1	 
	EXHIBIT C TRANSFER CERTIFICATE
	 	 	C-1	 
	 	 	 	 	 






ii









 





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you plan to add text after the Table of Contents/Authorities. Deleting this break will cause Table
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