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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-K
____________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: 22 June 1999
(Date of earliest event reported)
JOHN DEERE OWNER TRUST 1999-A
(Issuer of the Notes and the Certificates)
JOHN DEERE RECEIVABLES, INC.
(Originator of the Trust described herein)
(Exact name of registrant as specified in charter)
DELAWARE
(State or other jurisdiction of incorporation)
33-99294
(Commission File Number)
(36-3837230)
(IRS Employer Identification No.)
c/o John Deere Capital Corporation
Suite 600 First Interstate Bank Building
1 East First Street
Reno, Nevada 89501
(Address of principal executive offices and zip code)
(702) 786-5527
(Registrant's telephone number, including area code)
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Item 5. Other Events.
The agreements attached as exhibits hereto define the
rights of the security holders of the John Deere Owner Trust
1999-A.
The statements attached as exhibits hereto are filed
in accordance with letters submitted to the Division of
Corporation Finance of the Securities and Exchange Commission
on behalf of similar Trusts by the Servicer and Depositor of
the Trust.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
4.1 Purchase Agreement
4.2 Trust Agreement
4.3 Sale and Servicing Agreement
4.4 Administration Agreement
99.1 Statement to Certificateholder
99.2 Statement to Noteholders
99.3 Servicer's Certificate
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SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JOHN DEERE OWNER TRUST 1999-A
JOHN DEERE RECEIVABLES, INC.
By: John Deere Capital Corporation
(Servicer)
By: /s/ James R. Jabanoski
----------------------------
James R. Jabanoski, Treasurer
Dated: 22 June 1999
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EXHIBIT INDEX
Exhibit No.
4.1 Purchase Agreement
4.2 Trust Agreement
4.3 Sale and Servicing Agreement
4.4 Administration Agreement
99.1 Statement to Certificateholder
99.2 Statement to Noteholders
99.3 Servicer's Certificate
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EXHIBIT 4.1
PURCHASE AGREEMENT, dated as of May 15, 1999, between JOHN
DEERE CAPITAL CORPORATION, a Delaware corporation (the
"Seller"), and JOHN DEERE RECEIVABLES, INC., a Nevada
corporation (the "Purchaser").
WHEREAS, Deere & Company and other affiliates of the
Seller have purchased in the ordinary course of business
certain agricultural and construction equipment retail
installment sale and loan contracts secured by new and used
agricultural equipment and construction equipment and, in
turn, have sold such contracts to the Seller on a daily basis
pursuant to intercompany agreements; and
WHEREAS, the Seller and the Purchaser wish to set forth
the terms pursuant to which the Receivables (as hereinafter
defined) are to be sold by the Seller to the Purchaser, which
Receivables will be transferred by the Purchaser, pursuant to
the Sale and Servicing Agreement (as hereinafter defined), to
John Deere Owner Trust 1999-A (the "Trust"), which Trust will
issue Asset Backed Certificate representing fractional
undivided interests in, and Class A-1 4.9988% Asset Backed
Notes, Class A-2 5.466% Asset Backed Notes, Class A-3 5.94%
Asset Backed Notes, Class A-4 6.12% Asset Backed Notes and
Class B 6.10% Asset Backed Notes collateralized by, such
Receivables and the other property of the Trust.
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
Capitalized terms not defined in this Agreement shall have
the meaning set forth in the Sale and Servicing Agreement. As
used in this Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural
forms of the terms defined):
"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, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlled by" and "controlling" have meanings
correlative to the foregoing.
"Agreement" shall mean this Purchase Agreement, as the
same may be amended, modified or supplemented from time to
time.
"Assignment" shall mean the document of assignment
attached to this Agreement as Exhibit A.
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"Basic Documents" has the meaning given such term in the
Indenture.
"Certificate" shall have the meaning assigned to the term
"Certificate" in the Trust Agreement.
"Closing Date" shall mean May 27, 1999.
"Collections" shall mean all amounts collected by the
Servicer (from whatever source other than any amounts
collected in respect of dealer reserves) on or with respect to
the Receivables other than Purchased Receivables and
Liquidated Receivables.
"Indenture" shall mean the Indenture, dated as of May 15,
1999, between the Trust and The Bank of New York, as trustee,
as the same may be amended, modified or supplemented from time
to time.
"Person" means any individual, corporation, limited
liability company, estate, partnership, joint venture,
association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Prospectus" shall mean the Prospectus and Prospectus
Supplement, each dated May 20, 1999, relating to the Notes.
"Purchaser" shall mean John Deere Receivables, Inc., a
Nevada corporation, its successors and assigns.
"Receivable" shall mean any Contract listed on Schedule A
(which Schedule may be in the form of microfiche).
"Repurchase Event" shall have the meaning specified in
Section 6.02.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of May 15, 1999, among the
Trust, the Purchaser and the Seller, as the same may be
amended, modified or supplemented from time to time.
"Sales Branches" means the equipment sales branches and
sales regions in the United States operated by Deere &
Company, a Delaware corporation, and its wholly-owned
subsidiaries.
"Schedule of Receivables" shall mean the list of
Receivables annexed hereto as Schedule A.
"Seller" shall mean John Deere Capital Corporation, a
Delaware corporation, its successors and assigns.
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"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant
jurisdiction, as amended from time to time.
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables. In
consideration of the Purchaser's delivery to or upon the order
of the Seller of $760,071,023.00, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (subject to the obligations
herein):
(a) all right, title and interest of the Seller in and
to the Receivables, and all monies due thereon on and after
the Cutoff Date;
(b) the interest of the Seller in the security
interests in the Financed Equipment granted by Obligors
pursuant to the Receivables and any other interest of the
Seller in such Financed Equipment;
(c) the interest of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed
Equipment or Obligors; and
(d) the proceeds of any and all of the foregoing.
SECTION 2.02. The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at
the offices of Shearman & Sterling, 599 Lexington Avenue, New
York, New York 10022 on the Closing Date, simultaneously with
the closings under (a) the Sale and Servicing Agreement, (b)
the Trust Agreement and (c) the Indenture.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants to
the Seller as of the date hereof and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser 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, own and sell
the Receivables.
(b) Due Qualification. The Purchaser is duly qualified
to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals, in all
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jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualification.
(c) Power and Authority. The Purchaser 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 have been duly authorized by the
Purchaser by all necessary corporate action.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Purchaser, or any indenture,
agreement or other instrument to which the Purchaser 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 Sale and Servicing Agreement and the
Indenture); nor violate any law or, to the best of the
Purchaser's knowledge, any order, rule or regulation
applicable to the Purchaser of any court or of any federal or
state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Purchaser or its properties.
(e) No Proceedings. There are no proceedings or
investigations pending or, to the Purchaser's best knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Purchaser 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
Purchaser of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.02. Representations and Warranties of the
Seller.
(a) The Seller hereby represents and warrants to the
Purchaser as 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) 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
Purchaser hereby and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action;
and the execution, delivery and performance of this Agreement
have been duly authorized by the Seller by all necessary
corporate action.
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(iii) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment 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 this Agreement); 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 or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties.
(iv) No Proceedings. To the Seller's best
knowledge, there are no proceedings or investigations pending,
or threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties which
(A) assert the invalidity of this Agreement, (B) seek to
prevent the consummation of any of the transactions
contemplated by this Agreement or (C) 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.
(b) The Seller makes the following representations and
warranties as to the Receivables on which the Purchaser 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 the phrase described above. Except as provided
below, 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
Purchaser and the subsequent assignments and transfers of the
Receivables pursuant to the Sale and Servicing Agreement and
pursuant to the Indenture:
(i) Characteristics of Receivables. Each
Receivable (A) was originated in the United States of America
by the Sales Branches 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, was purchased by the Seller from such Sales Branch or
such Dealer under an existing agreement with the Sales
Branches or the Dealers, as the case may be, and was validly
assigned by such Sales Branch or Dealer, as the case may be,
to the Seller in accordance with its terms, (B) has created a
valid, subsisting and enforceable first priority security
interest in favor of the Seller in the Financed Equipment,
which security interest is assignable by the Seller to the
Purchaser, by the Purchaser to the Issuer and by the Issuer to
the Indenture Trustee, (C) contains customary and enforceable
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 on a periodic basis, yields interest at a fixed rate
and is prepayable without premium or penalty at any time. The
fixed payments provided for are
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sufficient to amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set
forth in Schedule A 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 were
utilized in selecting the Receivables. The computer tape
regarding the Receivables made available to the Purchaser and
its assigns is true and correct in all respects.
(iii) Compliance with Law. Each Receivable and the
sale 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 Magnuson-Moss 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 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 security interest in the Financed Equipment in
favor of the Seller as secured party or all necessary and
appropriate actions have been commenced that would result in
the valid perfection of a first security interest in the
Financed Equipment in favor of the Seller as secured party.
(vi) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any 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 is qualified to do
business in the state in which the Obligor is located.
(vii) No Waiver. No provision of a Receivable has
been waived.
(viii) No Amendments. No Receivable has been
amended such that the amount of the Obligor's Scheduled
Payments has been increased except for increases 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.
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(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 89 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 89
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. The Seller, in accordance with
its customary procedures, has determined that the Obligor has
obtained physical damage insurance covering the Financed
Equipment and under the terms of the Receivable the Obligor is
required to maintain such insurance.
(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
Purchaser 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. 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 Purchaser
shall have good and marketable title to each Receivable, free
and clear of all Liens, encumbrances, security interests and
rights of others; and the transfer has been perfected under
the UCC.
(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 Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Purchaser a
first perfected ownership interest in the Receivables have
been made.
(xvi) One Original. There is only one original
executed copy of each Receivable.
(xvii) Maturity of Receivables. Each Receivable
has a final scheduled payment date due not later than May 1,
2005; the weighted average remaining term of the Receivables
is 41.1 months as of the Cut-off Date.
(xviii) Location of Receivable Files. The
Receivable Files are kept at the location listed in Schedule 1
hereto.
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(xix) Outstanding Principal Balance. As of the
Cut-off Date, each Receivable has an outstanding principal
balance of at least $500.
(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.
(xxi) No Repossessions. No Financed Equipment
securing any Receivable is in repossession status.
(xxii) Chattel Paper. Each Receivable constitutes
"chattel paper" within the meaning of the UCC of the State of
Nevada and the State of Delaware.
(xxiii) U.S. Obligors. None of the Receivables is
due from any Person which does not have a mailing address in
the United States of America.
(xxiv) Agreement. The representations and
warranties in this Agreement are true.
(xxv) Payment Frequency. As of the Cut-off Date
and as shown on the books of the Seller and rounded to the
nearest tenth, Receivables having an aggregate balance equal
to approximately 39.99% of the aggregate balance of all
Receivables had annual scheduled payments; as of the Cut-off
Date and as shown on the books of the Seller, Receivables
having an aggregate balance equal to approximately 2.04% of
the aggregate balance of all Receivables had semi-annual
scheduled payments; as of the Cut-off Date and as shown on the
books of the Seller, Receivables having an aggregate balance
equal to approximately 0.44% of the aggregate balance of all
Receivables had quarterly scheduled payments; as of the Cut-
off Date and as shown on the books of the Seller, Receivables
having an aggregate balance equal to approximately 57.54% of
the aggregate 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 balance equal
to 0.0% of the aggregate balance of all Receivables had
scheduled payments which occur at various intervals during the
calendar year other than intervals described above and/or
which have various scheduled payment amounts.
(xxvi) Interest Accruing. Each Receivable is, as
of the Cut-off Date, accruing interest.
(xxvii) Sole Receivables. As of the Closing Date,
the Receivables listed in Schedule A are the only contracts
owned by the Seller.
(xxviii) Certificate of Title. As of the Closing
Date, the only states which may require a certificate of title
in order to perfect a security interest in the Financed
Equipment are Massachusetts and New Jersey, which respectively
constitute approximately 1.16% and 0.84% of the initial
aggregate balance of all Receivables.
(xxix) Concentrations. As of the Closing Date, no
single obligor represents more than 1.50% of the initial
aggregate balance of all Receivables.
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(xxx) Normal Course of Business. The Receivables
were acquired by the Seller in accordance with its normal
underwriting procedures.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to the Obligation of the
Purchaser. The obligation of the Purchaser 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 indicate in its
computer files that the Receivables have been sold to the
Purchaser pursuant to this Agreement and shall deliver to the
Purchaser the Schedule of Receivables certified by the
Chairman, the President, a Vice President or the Treasurer of
the Seller to be true, correct and complete.
(c) Documents to Be Delivered by the Seller at the
Closing.
(i) The Assignment. At the Closing, the Seller
will execute and deliver the Assignment. The Assignment shall
be substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller shall record and file, at its own
expense, a UCC-1 financing statement in each jurisdiction in
which required by applicable law, executed by the Seller, as
seller or debtor, and naming the Purchaser, as purchaser or
secured party, describing the Receivables and the other
property included in the Owner Trust Estate as collateral,
meeting the requirements of the laws of each such jurisdiction
and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of such Receivables to the
Purchaser. The Seller shall deliver a file-stamped copy, or
other evidence satisfactory to the Purchaser of such filing,
to the Purchaser on or prior to the Closing Date.
(iii) Other Documents. Such other documents as the
Purchaser may reasonably request.
(d) Other Transactions. The transactions contemplated
by the Sale and Servicing Agreement to be consummated on the
Closing Date shall be consummated on such date.
SECTION 4.02. Conditions to Obligation of the Seller.
The obligation of the Seller to sell the Receivables to the
Purchaser is subject to the satisfaction of the following
conditions:
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(a) Representations and Warranties True. The
representations and warranties of the Purchaser 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) Receivables Purchase Price. On the Closing Date,
the Purchaser shall have delivered to the Seller the purchase
price specified in Section 2.01.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Purchaser 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) Filings. The Seller shall cause all financing
statements and continuation statements and any other necessary
documents covering the right, title and interest of the
Purchaser in and to the Receivables and the other property
included in the Owner Trust Estate to be promptly filed, and
at all times to be kept, recorded, registered and filed, all
in such manner and in such places as may be required by law
fully to preserve and protect the right, title and interest of
the Purchaser hereunder to the Receivables and the other
property included in the Owner Trust Estate. The Seller shall
deliver to the Purchaser stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided
above, as soon as available following such recordation,
registration or filing. The Purchaser 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, identity or corporate structure which
would make any financing statement or continuation statement
filed in accordance with paragraph (a) above seriously
misleading within the applicable provisions of the UCC or any
title statute, the Seller shall give the Purchaser notice of
any such change, and no later than 5 days after the effective
date thereof, shall file such financing statements or
amendments as may be necessary to continue the perfection of
the Purchaser's interest in the property included in the Owner
Trust Estate.
SECTION 5.02. Other Liens or Interests. Except for the
conveyances hereunder and pursuant to the Sale and Servicing
Agreement, the Indenture and the other Basic Documents, the
Seller will not sell, pledge, assign or transfer to any
Person, or grant, create, incur, assume or suffer to exist any
Lien on, any interest in, to and under the Receivables, and
the Seller shall defend the right, title and interest of the
Purchaser in, to and under the Receivables against all claims
of third parties claiming through or under the Seller, any
Sales Branch or any Dealer; provided, however, that the
Seller's obligations under this Section shall terminate upon
the termination of the Trust pursuant to the Trust Agreement.
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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,
except Louisiana or Vermont.
SECTION 5.04. Indemnification. The Seller shall
indemnify the Purchaser 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 remedy provided by Section
6.02 shall not apply to the representations and warranties
contained in Section 3.02(b)(xxv); provided further that the
Seller shall indemnify the Purchaser for any liability arising
from a breach of Section 3.02(b)(iii). These indemnity
obligations shall be in addition to any obligation that the
Seller may otherwise have.
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. The Seller hereby
covenants and agrees with the Purchaser for the benefit of the
Purchaser, the Indenture Trustee, the Noteholders, the Owner
Trustee and the Certificateholder that as of the last day of
the second month following the discovery by or notice to the
Seller of the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.02(b)
(other than the representations and warranties contained in
subsections 3.02(b)(xxiv) and (xxv)) in respect of a
Receivable shall constitute an event obligating the Seller to
repurchase such Receivable ("Repurchase Events"), at the
Purchase Amount from the Purchaser or from the Trust. The
repurchase obligation of the Seller shall constitute the sole
remedy to the Purchaser, the Indenture Trustee, the
Noteholders, the Owner Trustee or the Certificateholder
against the Seller with respect to any Repurchase Event.
SECTION 6.03. Purchaser Assignment of Repurchased
Receivables. With respect to all Receivables repurchased by
the Seller pursuant to this Agreement, the Purchaser shall
assign, without recourse, representation or warranty, to the
Seller all the Purchaser's right, title and interest in and to
such Receivables, and all security and documents relating
thereto.
SECTION 6.04. Trust. The Seller acknowledges and agrees
that (a) the Purchaser will, pursuant to the Sale and
Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Agreement to the Trust, (b) the
Trust 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 Purchaser under this Agreement, including
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under Section 6.02, are intended to benefit the Trust, the
Certificateholder and the Noteholders. The Seller hereby
consents to all such sales and assignments.
SECTION 6.05. Amendment. This Agreement may be amended
from time to time by a written amendment duly executed and
delivered by the Seller and the Purchaser, 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, however, that such amendment will
not, in the Opinion of Counsel satisfactory to the Indenture
Trustee, materially and adversely affect the interest of any
Noteholder or the Certificateholder; provided further that 10
days' prior written notice of any such amendment be given to
each Rating Agency and, if a Rating Agency notifies the Owner
Trustee that such amendment will result in a downgrading or
withdrawal of the then current rating of the Class A Notes,
such amendment shall become effective with the consent of the
Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Class A Notes. This Agreement may
also be amended by the Seller and the Purchaser, with prior
written notice to the Rating Agencies, with the consent of the
holders of Notes evidencing at least a majority in the
Outstanding Amount of the Notes and the holder of the
Certificate 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, 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 which are required to consent to any such amendment
or eliminate the consent of the Certificateholder, without the
consent of the holders of all the outstanding Notes and the
holder of the Certificate.
SECTION 6.06. Accountants' Letters. (a) Deloitte &
Touche LLP will review the characteristics of the Receivables
described in the Schedule of Receivables set forth as a
Schedule hereto and will compare those characteristics to the
information with respect to the Receivables contained in the
Prospectus; (b) the Seller will cooperate with the Purchaser
and Deloitte & Touche LLP in making available all information
and taking all steps reasonably necessary to permit such
accountants to complete the review set forth in clause (a)
above and to deliver the letters required of them under the
Underwriting Agreement; and (c) Deloitte & Touche LLP will
deliver to the Purchaser a letter, dated the date of the
Prospectus, in the form previously agreed to by the Seller and
the Purchaser, with respect to the financial and statistical
information contained in the Prospectus and with respect to
such other information as may be agreed in the form of letter.
SECTION 6.07. Waivers. No failure or delay on the part
of the Purchaser 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 6.08. Notices. All demands, notices and
communications under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return
receipt
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requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller, to John Deere Capital
Corporation, Suite 600, First Interstate Bank Building, 1 East
First Street, Reno, Nevada 89501, Attention: Manager, (702)
786-5527; (b) in the case of the Purchaser, to John Deere
Receivables, Inc., First Interstate Bank Building, 1 East
First Street, Reno, Nevada 89501, Attention: Manager, Asset
Securitization, (702) 786-5914, with a copy to Deere &
Company, One John Deere Place, Moline, Illinois 61265,
Attention: Treasury Department, Asset Securitization, (309)
765-4184; (c) in the case of Moody's, to Moody's Investors
Service, Inc., ABS Monitoring Department, 99 Church Street,
New York, New York 10007; (d) in the case of Standard &
Poor's, to Standard & Poor's Ratings Group, a division of
McGraw-Hill Inc., 55 Water Street (40th Floor), New York, New
York 10041, Attention: Asset Backed Surveillance Department;
and (e) in the case of Fitch, to Fitch IBCA, One State Street
Plaza, New York, New York 10004, Attention: Structured
Finance Surveillance; or as to each of the foregoing, at such
other address as shall be designated by written notice to the
other parties.
SECTION 6.09. 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 Purchaser,
excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right,
title and interest in and to the Receivables and the
enforcement of any obligation of the Seller hereunder.
SECTION 6.10. Representations of the Seller and the
Purchaser. The respective agreements, representations,
warranties and other statements by the Seller and the
Purchaser 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.
SECTION 6.11. Confidential Information. The Purchaser
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 Purchaser's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement or under
the Indenture or any other Basic Document or as required by
any of the foregoing or by law.
SECTION 6.12. Headings and Cross-References. 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. References in this Agreement to
Section names or numbers are to such Sections of this
Agreement.
SECTION 6.13. GOVERNING LAW. THIS AGREEMENT AND THE
ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6.14. 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.
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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 and year first above written.
JOHN DEERE RECEIVABLES, INC.
By: ____________________________
Assistant Secretary
JOHN DEERE CAPITAL CORPORATION
By: ____________________________
Assistant Secretary
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<PAGE>
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase
Agreement, dated as of May 15, 1999 (the "Purchase
Agreement"), between the undersigned and John Deere
Receivables, Inc. (the "Purchaser"), the undersigned does
hereby sell, assign, transfer and otherwise convey unto the
Purchaser, without recourse, all right, title and interest of
the undersigned in and to (i) the Receivables and all monies
received thereon on and after Cutoff Date; (ii) the security
interest of the Seller in the Financed Equipment granted by
the Obligors pursuant to the Receivables; (iii) the interest
of the Seller in any proceeds from claims on any physical
damage, credit life or disability insurance policies relating
to the Financed Equipment or Obligors; and (iv) the proceeds
of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by
the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the
Receivables, Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
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 May 27, 1999.
JOHN DEERE CAPITAL CORPORATION
By: _______________________________
Assistant Secretary
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SCHEDULE A
Schedule of Receivables
[Delivered to the Trust at Closing]
Page 16
<PAGE>
SCHEDULE 1
Location of Receivable Files
First Interstate Bank Building
1 East First Street
Reno, Nevada 89501
Page 17
16
EXHIBIT 4.2
JOHN DEERE OWNER TRUST 1999-A
TRUST AGREEMENT
between
JOHN DEERE RECEIVABLES, INC.
and
BANKERS TRUST (DELAWARE)
Owner Trustee
Dated as of May 15, 1999
<PAGE>
Table of Contents Page
ARTICLE I Definitions
SECTION 1.01. Capitalized Terms 1
SECTION 1.02. Other Definitional Provisions 3
ARTICLE II Organization
SECTION 2.01. Name 4
SECTION 2.02. Office 4
SECTION 2.03. Purposes and Powers 3
SECTION 2.04. Appointment of Owner Trustee 5
SECTION 2.05. Initial Capital Contribution of Trust
Estate 5
SECTION 2.06. Declaration of Trust 5
SECTION 2.07. Liability of the Owner 6
SECTION 2.08. Title to Trust Property 6
SECTION 2.09. Situs of Trust 6
SECTION 2.10. Representations and Warranties of the
Depositor 6
ARTICLE III Certificate and Transfer of Interests
SECTION 3.01. Initial Ownership 7
SECTION 3.02. The Certificate 7
SECTION 3.03. Authentication of the Certificate 8
SECTION 3.04. Exchange of the Certificate 8
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen
Certificate 8
SECTION 3.06. Persons Deemed Owners 9
SECTION 3.07. Access to Certificateholder's Name
and Address 9
SECTION 3.08. Maintenance of Office or Agency 9
SECTION 3.09. Appointment of Paying Agent 9
SECTION 3.10. Depositor as Certificateholder 10
ARTICLE IV Actions by Owner Trustee
SECTION 4.01. Prior Notice to Owner with Respect
to Certain Matters 10
SECTION 4.02. Action by the Owner with Respect
to Certain Matters 11
SECTION 4.03. Action by the Owner with Respect
to Bankruptcy 11
SECTION 4.04. Restrictions on the Owner's Power 11
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ARTICLE V Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account 11
SECTION 5.02. Application of Trust Funds 12
SECTION 5.03. Method of Payment 12
SECTION 5.04. No Segregation of Monies; No Interest 12
SECTION 5.05. Accounting and Reports to the Noteholders,
the Owner, the Internal Revenue Service
and Others 12
ARTICLE VI Authority and Duties of Owner Trustee
SECTION 6.01. General Authority 12
SECTION 6.02. General Duties 13
SECTION 6.03. Action upon Instruction 13
SECTION 6.04. No Duties Except as Specified in This
Agreement or in Instructions 14
SECTION 6.05. No Action Except Under Specified
Documents or Instructions 14
SECTION 6.06. Restrictions 14
ARTICLE VII Concerning the Owner Trustee
SECTION 7.01. Acceptance of Trusts and Duties 15
SECTION 7.02. Furnishing of Documents 16
SECTION 7.03. Representations and Warranties 16
SECTION 7.04. Reliance; Advice of Counsel 16
SECTION 7.05. Not Acting in Individual Capacity 17
SECTION 7.06. Owner Trustee Not Liable for Certificate
or Receivables 17
SECTION 7.07. Owner Trustee May Own Notes 17
ARTICLE VIII Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses 18
SECTION 8.02. Indemnification 18
SECTION 8.03. Payments to the Owner Trustee 18
ARTICLE IX Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement 18
SECTION 9.02. Dissolution upon Bankruptcy of the
Depositor 19
ARTICLE X Successor Owner Trustees and Additional
Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner
Trustee 20
SECTION 10.02. Resignation or Removal of Owner Trustee 20
SECTION 10.03. Successor Owner Trustee 21
SECTION 10.04. Merger or Consolidation of Owner Trustee 21
SECTION 10.05. Appointment of Co-Trustee or Separate
Trustee 21
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ARTICLE XI Miscellaneous
SECTION 11.01. Supplements and Amendments 23
SECTION 11.02. No Legal Title to Owner Trust Estate
in the Owner 24
SECTION 11.03. Limitations on Rights of Others 24
SECTION 11.04. Notices 24
SECTION 11.05. Severability 24
SECTION 11.06. Separate Counterparts 25
SECTION 11.07. Successors and Assigns 25
SECTION 11.08. Covenant of the Depositor 25
SECTION 11.09. No Petition 25
SECTION 11.10. No Recourse 25
SECTION 11.11. Headings 26
SECTION 11.12. GOVERNING LAW 26
SECTION 11.13. Depositor Payment Obligation 26
SECTION 11.14. Administrator 26
EXHIBIT A Asset Backed Certificate 28
EXHIBIT B Certificate of Trust of John Deere
Owner Trust 1999-A 33
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<PAGE>
TRUST AGREEMENT, dated as of May 15, 1999, between John
Deere Receivables, Inc., a Nevada corporation, as Depositor,
and Bankers Trust (Delaware), a Delaware banking corporation,
as Owner Trustee.
ARTICLE I
Definitions
SECTION 1.01. Capitalized Terms. For all purposes of
this Agreement, the following terms shall have the meanings
set forth below:
"Administration Agreement" means the Administration
Agreement dated as of May 15, 1999, among the Administrator,
the Trust and the Indenture Trustee, as the same may be
amended, modified or supplemented from time to time.
"Administrator" means John Deere Capital Corporation, a
Delaware corporation, or any successor Administrator under the
Administration Agreement.
"Agreement" shall mean this Trust Agreement, as the same
may be amended and supplemented from time to time.
"BofA" shall have the meaning assigned to such term in
Section 2.03(i).
"Basic Documents" shall mean the Purchase Agreement, the
Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Depository Agreement and the
other documents and certificates delivered in connection
therewith.
"Benefit Plan" shall have the meaning assigned to such
term in Section 11.13.
"Business Trust Statute" shall mean Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as the same
may be amended from time to time.
"Certificate" shall mean a certificate evidencing the
beneficial interest of the Owner in the Trust, substantially
in the form attached hereto as Exhibit A.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of
Trust in the form of Exhibit B to be filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall
mean the register mentioned and the registrar appointed
pursuant to Section 3.04.
"Certificateholder" shall mean the Depositor.
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<PAGE>
"Chase" shall have the meaning assigned to such term in
Section 2.03(i).
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Corporate Trust Office" shall mean, with respect to the
Owner Trustee, the principal corporate trust office of the
Owner Trustee located at E.A. Delle Donne Corporate Center,
Montgomery Building, 1011 Centre Road, Suite 200, Wilmington,
Delaware 19805, with a copy to Bankers Trust Company, Four
Albany Street, 10th Floor, New York, New York 10006, Attention:
Corporate Trust & Agency Group; or at such other address as
the Owner Trustee may designate by notice to the Owners and
the Depositor, or the principal corporate trust office of any
successor Owner Trustee (the address of which the successor
owner trustee will notify the Owners and the Depositor).
"CSFB" shall have the meaning assigned to such term in
Section 2.03(i).
"Depositor" shall mean John Deere Receivables, Inc., in
its capacity as Depositor hereunder.
"Depository Agreement" means the agreement among the
Trust, the Indenture Trustee and The Depository Trust Company,
dated as of the Closing Date, substantially in the form of
Exhibit C to the Indenture.
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Goldman" shall have the meaning assigned to such term in
Section 2.03(i).
"Indenture" shall mean the Indenture, dated as of May 15,
1999, between the Trust and the Indenture Trustee, as the same
may be amended and supplemented from time to time.
"Indenture Trustee" shall mean The Bank of New York, not
in its individual capacity but solely as Indenture Trustee
under the Indenture.
"JDCC" shall mean John Deere Capital Corporation, a
Delaware corporation.
"Morgan" shall have the meaning assigned to such term in
section 2.03(i).
"Owner" shall mean the Certificateholder.
"Owner Trust Estate" shall mean all right, title and
interest of the Trust in and to the property and rights
assigned to the Trust pursuant to Article II of the Sale and
Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and the Certificate Distribution Account
and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust
pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
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<PAGE>
"Owner Trustee" shall mean Bankers Trust (Delaware), a
Delaware banking corporation, not in its individual capacity
but solely as owner trustee under this Agreement, and any
successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.09 and shall initially
be Bankers Trust Company.
"Purchase Agreement" shall mean the Purchase Agreement,
date May 15, 1999, between JDCC and the Depositor, as the same
may be amended, modified or supplemented from time to time.
"Record Date" shall mean, with respect to any Payment
Date, the close of business on the last day of the calendar
month immediately preceding the calendar month in which the
Payment Date occurs.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement among the Trust, the Depositor, as seller,
and JDCC, as servicer, dated as of May 15, 1999, as the same
may be amended, modified or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of
the State of Delaware.
"SSB" shall have the meaning assigned to such term in
Section 2.03(i).
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code.
References herein to specific provisions of proposed or
temporary regulations shall include analogous provisions of
final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this
Agreement.
"Underwriters" shall have the meaning assigned to such
term in Section 2.03(i).
SECTION 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined have the meanings assigned to them in the Sale and
Servicing Agreement or, if not defined therein, in the
Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein.
(c) 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
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<PAGE>
definitions of accounting terms in this Agreement or in any
such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and
words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and
neuter genders of such terms.
ARTICLE II
Organization
SECTION 2.01. Name. The Trust created hereby shall be
known as "John Deere Owner Trust 1999-A" in which name the
Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.02. Office. The office of the Trust shall be
in care of the Owner Trustee at the Corporate Trust Office or
at such other address in Delaware as the Owner Trustee may
designate by written notice to the Owners and the Depositor.
SECTION 2.03. Purposes and Powers. The purpose of the
Trust is to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture
and the Certificate pursuant to this Agreement, and to sell
$761,425,000 aggregate principal amount of the Class A Notes
to Credit Suisse First Boston ("CSFB"), Banc of America
Securities L.L.C. ("BofA"), Chase Securities Inc. ("Chase"),
Goldman, Sachs & Co. ("Goldman"), J.P. Morgan Securities Inc.
("Morgan") and Salomon Smith Barney Inc. ("SSB" and, together
with CSFB, BofA, Chase, Goldman and Morgan, the
"Underwriters") upon the written order of the Depositor,
$32,230,000 aggregate principal amount of the Class B Notes to
the Depositor upon the written order of the Depositor, and
$12,086,832 aggregate principal amount of the Certificate to
the Depositor upon the written order of the Depositor;
(ii) with the proceeds of the sale of the Class A
Notes and the issuance of the Class B Notes and the
Certificate, to pay the Depositor the amounts owed pursuant to
Section 2.01 of the Sale and Servicing Agreement, by directing
CSFB to wire transfer such proceeds in accordance with
instructions received from the Depositor;
(iii) with the proceeds from capital contributions
from the Depositor, to fund the Reserve Account and to pay
organizational and transactional expenses of the Trust;
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<PAGE>
(iv) to assign, grant, transfer, pledge, mortgage
and convey the Trust Estate pursuant to the Indenture and to
hold, manage and distribute to the Owner pursuant to the terms
of the Sale and Servicing Agreement any portion of the Trust
Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(v) to enter into and perform its obligations under
the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including
entering into agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and
(vii) subject to compliance with the Basic
Documents, to engage in such other activities as may be
required in connection with conservation of the Owner Trust
Estate and the making of distributions to the Owner and the
Noteholders.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.04. Appointment of Owner Trustee. The
Depositor hereby appoints the Owner Trustee as trustee of the
Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein.
SECTION 2.05. Initial Capital Contribution of Trust
Estate. The Depositor hereby sells, assigns, transfers,
conveys and sets over to the Owner Trustee, as of the date
hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the
date hereof, of the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.06. Declaration of Trust.
(a) The Owner Trustee hereby declares that it will hold
the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Owner, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing
instrument of business trust. It is the intention of the
parties that the Trust will be disregarded as an entity
separate from the Owner for U.S. federal income tax purposes
as permitted by Treasury Regulation Section 301.7701-3(c). In
the event, however, that during its term the Trust has more
than one owner then the parties agree that, for U.S. federal
income tax purposes, they will treat the Trust as a
partnership and take no action inconsistent with the treatment
of the Trust as a partnership. In such event, the parties
agree that, unless otherwise required by appropriate tax
authorities, the Trust will elect to be treated as a
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partnership and will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and
in the Business Trust Statute with respect to accomplishing
the purposes of the Trust. In no event shall the Trust elect
to be treated as an association taxable as a corporation.
(b) The Depositor shall make an election on Internal
Revenue Service Form 8832, Entity Classification Election, for
the Trust to be disregarded as a separate entity from the
Owner.
SECTION 2.07. Liability of the Owner.
(a) The Depositor shall be liable directly to and will
indemnify the injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including Expenses, to
the extent not paid out of the Owner Trust Estate) to the
extent that the Depositor would be liable if the Trust were a
partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Depositor were a general partner;
provided, however, that the Depositor shall not be liable for
any losses incurred by a Certificateholder in the capacity of
an investor in the Certificate or a Noteholder in the capacity
of an investor in the Notes. In addition, any third party
creditors of the Trust (other than in connection with the
obligations described in the preceding proviso for which the
Depositor shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The obligations of the
Depositor under this paragraph shall be evidenced by the
Certificate described in Section 3.10.
(b) The Owner, other than to the extent set forth in
paragraph (a), shall not have any personal liability for any
liability or obligation of the Trust.
SECTION 2.08. Title to Trust Property. Legal title to
all the Owner Trust Estate shall be vested at all times in the
Trust as a separate legal entity except where applicable law
in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located
in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the
State of Delaware or the State of New York. The Trust shall
not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or
without the State of Delaware. Payments will be received by
the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in
Delaware.
SECTION 2.10. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to
the Owner Trustee that:
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(i) the Depositor is duly organized and validly
existing as a corporation in good standing under the laws of
the State of Nevada, with power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted;
(ii) the Depositor is duly qualified to do business
as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in
which the failure to so qualify or to obtain such license or
approval would render any Receivable unenforceable that would
otherwise be enforceable by the Depositor, the Sub-Servicer or
the Owner Trustee;
(iii) the Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms;
the Depositor has full power and authority to sell and assign
the property to be sold and assigned to and deposited with the
Trust and the Depositor shall have duly authorized such sale
and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance
of this Agreement has been duly authorized by the Depositor by
all necessary corporate action; and
(iv) the consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or any indenture,
agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Depositor's knowledge, any order,
rule or regulation applicable to the Depositor of any court or
of any Federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over
the Depositor or its properties.
ARTICLE III
Certificate and Transfer of Interests
SECTION 3.01. Initial Ownership. Upon the formation of
the Trust by the contribution by the Depositor pursuant to
Section 2.05 and until the termination of the Trust, the
Depositor shall be the sole beneficiary of the Trust.
SECTION 3.02. The Certificate. The Certificate shall be
issued in denominations of $100,000 and integral multiples of
$1,000 in excess thereof; provided, however, that one
Certificate may be issued in a denomination that includes any
remaining portion of the initial Certificate Balance of the
Certificate. The Certificate shall be executed on behalf of
the Trust by manual or facsimile signature of a Trust Officer
of the Owner Trustee. The Certificate bearing the manual or
facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall, when authenticated pursuant to
Section 3.03, be validly issued and entitled to the benefits
of this Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior
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to the authentication and delivery of the Certificate or did
not hold such offices at the date of authentication and
delivery of the Certificate.
SECTION 3.03. Authentication of the Certificate.
Concurrently with the initial sale of the Receivables to the
Trust pursuant to the Sale and Servicing Agreement, the Owner
Trustee shall cause the Certificate in an aggregate principal
amount equal to the initial Certificate Balance to be executed
on behalf of the Trust, authenticated and delivered to or upon
the written order of the Depositor, signed by its Chairman of
the Board, its President, any Vice President, its Treasurer or
any Assistant Treasurer, without further corporate action by
the Depositor, in authorized denominations. The Certificate
shall not entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit
A, executed by the Owner Trustee or the Owner Trustee's
authentication agent, by manual signature; such authentication
shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder.
The Certificate shall be dated the date of its authentication.
SECTION 3.04. Exchange of the Certificate. The
Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall
provide for the registration of the Certificate and of
exchanges of the Certificate as herein provided. Bankers
Trust Company shall be the initial Certificate Registrar.
At the option of the Certificateholder, the Certificate
may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender of the
Certificate to be exchanged at the office or agency maintained
pursuant to Section 3.08.
Every Certificate presented or surrendered for exchange
shall be accompanied by a written instrument of exchange in
form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Certificateholder or its
attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of the Certificate, but the Owner Trustee
or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the
Certificate.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen
Certificate. If (a) any mutilated Certificate shall be
surrendered to the Certificate Registrar, or if the
Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any
Certificate and (b) there shall be delivered to the
Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate
shall have been acquired by a protected purchaser, the Owner
Trustee on behalf of the Trust shall execute and the Owner
Trustee, or the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or
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stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new
Certificate under this Section, the Owner Trustee or the
Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as
if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer,
the Owner Trustee or the Certificate Registrar or any Paying
Agent may treat the Person in whose name any Certificate shall
be registered in the Certificate Register as the owner of such
Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate
Registrar or any Paying Agent shall be bound by any notice to
the contrary.
SECTION 3.07. Access to Certificateholder's Name and
Address. The Owner Trustee shall furnish or cause to be
furnished to the Servicer and the Depositor, within 15 days
after receipt by the Owner Trustee of a request therefor from
the Servicer or the Depositor in writing the name and address
of the Certificateholder as of the most recent Record Date.
SECTION 3.08. Maintenance of Office or Agency. The Owner
Trustee shall maintain in the Borough of Manhattan, The City
of New York, an office or offices or agency or agencies where
the Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificate and the Basic
Documents may be served. The Owner Trustee initially
designates Bankers Trust Company, 4 Albany Street, 10th Floor,
New York, New York 10006, Attention: Corporate Trust & Agency
Group, as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice
to the Depositor and to the Certificateholder of any change in
the location of the Certificate Register or any such office or
agency.
SECTION 3.09. Appointment of Paying Agent. The Paying
Agent shall make distributions to the Certificateholder from
the Certificate Distribution Account pursuant to Section 5.02
and shall report the amounts of such distributions to the
Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution
Account for the purpose of making the distributions referred
to above. The Owner Trustee may revoke such power and remove
the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform
its obligations under this Agreement in any material respect.
The Paying Agent shall initially be Bankers Trust Company, and
any co-paying agent chosen by Bankers Trust Company, and
acceptable to the Owner Trustee. Bankers Trust Company shall
be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee and the Depositor. In the event
that Bankers Trust Company shall no longer be the Paying
Agent, the Owner Trustee shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the
Certificateholder
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in trust for the benefit of the Certificateholder until such
sums shall be paid to the Certificateholder. The Paying Agent
shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Owner Trustee. The
provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply
to the Owner Trustee also in its role as Paying Agent, for so
long as the Owner Trustee shall act as Paying Agent, and to
the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 3.10. Depositor as Certificateholder. On the
Closing Date, the Depositor shall acquire the Certificate
representing 100% of the initial Certificate Balance and,
thereafter, shall retain beneficial and record ownership of
the Certificate representing 100% of the Certificate Balance.
Any attempted transfer of any Certificate that would reduce
such interest of the Depositor below 100% of the Certificate
Balance shall be void. The Owner Trustee shall cause any
Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
ARTICLE IV
Actions by Owner Trustee
SECTION 4.01. Prior Notice to Owner with Respect to
Certain Matters. With respect to the following matters, the
Owner Trustee shall not take action unless at least 30 days
before the taking of such action, the Owner Trustee shall have
notified the Certificateholder in writing of the proposed
action and the Owner shall not have notified the Owner Trustee
in writing prior to the 30th day after such notice is given
that the Owner has withheld consent or provided alternative
direction:
(i) the initiation of any claim or lawsuit by the
Trust (other than an action to collect on a Receivable) and
the compromise of any action, claim or lawsuit brought by or
against the Trust (other than an action to collect on a
Receivable);
(ii) the election by the Trust to file an amendment
to the Certificate of Trust;
(iii) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of
any Noteholder is required;
(iv) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of
any Noteholder is not required and such amendment materially
adversely affects the interest of the Owner;
(v) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Owner; or
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(vi) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or
pursuant to this Agreement of a successor Certificate
Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.02. Action by the Owner with Respect to Certain
Matters. The Owner Trustee shall not have the power, except
upon the written direction of the Owner, to (a) remove the
Administrator under the Administration Agreement pursuant to
Section 8 thereof, (b) appoint a successor Administrator
pursuant to Section 8 of the Administration Agreement, (c)
remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 8.01 thereof or (d) except as expressly
provided in the Basic Documents, sell the Receivables after
the termination of the Indenture. The Owner Trustee shall
take the actions referred to in the preceding sentence only
upon written instructions signed by the Owner.
SECTION 4.03. Action by the Owner with Respect to
Bankruptcy. The Owner Trustee shall not have the power to
commence a voluntary proceeding in bankruptcy relating to the
Trust without the prior written approval of the Owner and the
delivery to the Owner Trustee by the Owner of a certificate
certifying that the Owner reasonably believes that the Trust
is insolvent.
SECTION 4.04. Restrictions on the Owner's Power. The
Owner shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the Basic Documents or would be
contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account. The Owner
Trustee, for the benefit of the Certificateholder, shall
establish and maintain in the name of the Trust an Eligible
Deposit Account (the "Certificate Distribution Account"),
bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the
Certificateholder.
The Owner Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the
Certificate Distribution Account and in all proceeds thereof.
Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the
Certificateholder. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account,
the Owner Trustee (or the Depositor on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then
held by the Owner Trustee or an affiliate thereof) shall
within 10 Business Days following notification of such
occurrence (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a
new Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
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SECTION 5.02. Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee will
distribute to the Certificateholder, amounts deposited in the
Certificate Distribution Account pursuant to Sections 5.04 and
5.05 of the Sale and Servicing Agreement on such Payment Date.
(b) On each Payment Date, the Owner Trustee shall send
to the Certificateholder the statement provided to the Owner
Trustee by the Servicer pursuant to Section 5.06(a) of the
Sale and Servicing Agreement on such Payment Date.
SECTION 5.03. Method of Payment. Subject to Section
9.01(c), distributions required to be made to the
Certificateholder on any Payment Date shall be made to the
Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to
the account of the Certificateholder at a bank or other entity
having appropriate facilities therefor, if the
Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five
Business Days prior to such Payment Date or, if not, by check
mailed to the Certificateholder at the address of the
Certificateholder appearing in the Certificate Register.
SECTION 5.04. No Segregation of Monies; No Interest.
Subject to Sections 5.01 and 5.02, monies received by the
Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law or the Sale and Servicing
Agreement and may be deposited under such general conditions
as may be prescribed by law, and the Owner Trustee shall not
be liable for any interest thereon.
SECTION 5.05. Accounting and Reports to the Noteholders,
the Owner, the Internal Revenue Service and Others. The Owner
Trustee shall (a) maintain (or cause to be maintained) the
books of the Trust on a fiscal year basis ending October 31
(or such other period as may be required by applicable law),
with the first year being a short year ending October 31,
1999, and on the accrual method of accounting, (b) deliver to
the Owner, as may be required by the Code and applicable
Treasury Regulations, such information as may be required to
enable the Owner to prepare its federal and state income tax
returns, and (c) file such tax returns relating to the Trust
as directed by the Owner and make such elections as directed
by the Owner as may from time to time be required or
appropriate under any applicable state or federal statute or
rule or regulation thereunder so as to maintain the Trust's
characterization as disregarded as a separate entity from the
Owner for federal income tax purposes.
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each
certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to
be a party, or any amendment thereto or other agreement, in
each case, in such
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form as the Depositor shall approve as evidenced conclusively
by the delivery of such certificates and documents to the
Owner Trustee for the Owner Trustee's execution thereof. In
addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take all actions required of
the Trust pursuant to the Basic Documents. The Owner Trustee
is further authorized from time to time to take such action as
the Administrator directs in writing with respect to the Basic
Documents and shall, upon the written direction of the
Administrator, execute and deliver any amendments to this
Agreement or any Basic Documents presented by the
Administrator for execution and delivery by the Owner Trustee.
SECTION 6.02. General Duties. It shall be the duty of
the Owner Trustee to discharge (or cause to be discharged) all
of its responsibilities pursuant to the terms of this
Agreement and the Basic Documents and to administer the Trust
in the interest of the Owner, subject to the Basic Documents
and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to
perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the
Administrator to carry out its obligations under the
Administration Agreement.
SECTION 6.03. Action upon Instruction.
(a) Subject to Article IV, the Owner may, by written
instruction, direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written
instruction of the Owner pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any
action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to
the terms hereof or of any Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by
the terms of this Agreement or any Basic Document, the Owner
Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Owner requesting
instruction as to the course of action to be adopted, and to
the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Owner received, the Owner
Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in
the best interest of the Owner, and shall have no liability to
any Person for such action or inaction.
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(d) In the event that the Owner Trustee is unsure as to
the application of any provision of this Agreement or any
Basic Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is
silent or is incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular
set of facts, the Owner Trustee may give notice (in such form
as shall be appropriate under the circumstances) to the Owner
requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in
the best interests of the Owner, and shall have no liability
to any Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in This
Agreement or in Instructions. The Owner Trustee shall not
have any duty or obligation to manage, make any payment with
respect to, register, record, sell, dispose of, or otherwise
deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Owner Trustee is
a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 6.03; and no implied
duties or obligations shall be read into this Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to prepare or file
any Securities and Exchange Commission filing for the Trust or
to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to
discharge any liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the Owner Trustee
that are not related to the ownership or the administration of
the Owner Trust Estate.
SECTION 6.05. No Action Except Under Specified Documents
or Instructions. The Owner Trustee shall not manage, control,
use, sell, dispose of or otherwise deal with any part of the
Owner Trust Estate except (a) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (b) in accordance with the Basic
Documents and (c) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section
6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not
take any action (a) that is inconsistent with the purposes of
the Trust set forth in Section 2.03 or (b) that, to the actual
knowledge of the Owner Trustee, would result in the Trust's
becoming taxable as a corporation for federal income tax
purposes. The Owner shall not direct the Owner Trustee to
take action that would violate the provisions of this Section.
In no event shall the Trust elect to be treated as an
association taxable as a corporation.
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ARTICLE VII
Concerning the Owner Trustee
SECTION 7.01. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but
only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of
the Basic Documents and this Agreement. The Owner Trustee
shall not be answerable or accountable hereunder or under any
Basic Document under any circumstances, except for (i) its own
willful misconduct or negligence or (ii) the inaccuracy of any
representation or warranty contained in Section 7.03 expressly
made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the
preceding sentence):
(i) the Owner Trustee shall not be liable for any
error of judgment made by a responsible officer of the Owner
Trustee;
(ii) the Owner Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
accordance with the instructions of the Administrator, the
Depositor, the Indenture Trustee or any Owner;
(iii) no provision of this Agreement or any Basic
Document shall require the Owner Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under
any Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured or provided to it;
(iv) under no circumstances shall the Owner Trustee
be liable for indebtedness evidenced by or arising under any
of the Basic Documents, including the principal of and
interest on the Notes;
(v) the Owner Trustee shall not be responsible for
or in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity
of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Certificate, and the
Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to the Owner, other
than as expressly provided for herein and in the Basic
Documents;
(vi) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Indenture
Trustee or the Servicer under any of the Basic Documents or
otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement; and
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(vii) the Owner Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or
direction of the Owner, unless the Owner has offered to the
Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by
the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a
duty, and the Owner Trustee shall not be answerable for other
than its negligence or willful misconduct in the performance
of any such act.
SECTION 7.02. Furnishing of Documents. The Owner Trustee
shall furnish to the Owner promptly upon receipt of a written
reasonable request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner
Trustee and in its possession under the Basic Documents.
SECTION 7.03. Representations and Warranties. The Owner
Trustee hereby represents and warrants to the Depositor, for
the benefit of the Owner, that:
(i) it is a banking corporation duly organized and
validly existing in good standing under the laws of the State
of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement;
(ii) it has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement,
and this Agreement will be executed and delivered by one of
its officers who is duly authorized to execute and deliver
this Agreement on its behalf; and
(iii) neither the execution nor the delivery by it
of this Agreement, nor the consummation by it of the
transactions contemplated hereby nor compliance by it with any
of the terms or provisions hereof will contravene any federal
or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee, or constitute
any default under its charter documents or by-laws.
SECTION 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body
of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter
the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in
good faith in reliance thereon.
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(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations
under this Agreement or the Basic Documents, the Owner Trustee
(i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with
reasonable care and employed by it. The Owner Trustee shall
not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such persons and not
contrary to this Agreement or any Basic Document.
SECTION 7.05. Not Acting in Individual Capacity. Except
as provided in this Article VII, in accepting the trusts
hereby created Bankers Trust (Delaware) acts solely as Owner
Trustee hereunder and not in its individual capacity and all
Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any
Basic Document shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Certificate or
Receivables. The recitals contained herein and in the
Certificate (other than the signature and counter-signature of
the Owner Trustee on the Certificate and its representations
and warranties in Section 7.03) shall be taken as the
statements of the Depositor and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of
this Agreement, of any Basic Document or of the Certificate
(other than the signature and countersignature of the Owner
Trustee on the Certificate) or the Notes, or of any Receivable
or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or
the perfection and priority of any security interest created
by any Receivable in any Financed Equipment or the maintenance
of any such perfection and priority, or for or with respect to
the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to the
Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Equipment;
the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or
other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Depositor or the
Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of
any such warranty or representation or any action of the
Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
SECTION 7.07. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Servicer in
banking transactions with the same rights as it would have if
it were not Owner Trustee.
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ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before
the date hereof between the Depositor and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by
the Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and
counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties
hereunder.
SECTION 8.02. Indemnification. The Depositor shall be
liable as primary obligor for, and shall indemnify the Owner
Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees
and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party
in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of
the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Depositor shall not be
liable for or required to indemnify the Owner Trustee from and
against Expenses arising or resulting from any of the matters
described in the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the
termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal
counsel shall be subject to the approval of the Depositor,
which approval shall not be unreasonably withheld.
SECTION 8.03. Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article VIII shall
be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.
(a) The Trust shall dissolve (i) upon the final
distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture, the Sale and Servicing
Agreement and Article V or (ii) at the time provided in
Section 9.02. Any money or other property held as part of the
Owner Trust Estate following such distribution (and following
a final distribution of proceeds from a sale under Section
9.02) shall be distributed to the Depositor.
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(b) Except as provided in Section 9.01(a), neither the
Depositor nor the Owner shall be entitled to revoke or
terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying
the Payment Date upon which the Certificateholder shall
surrender its Certificate to the Paying Agent for payment of
the final distribution and cancellation, shall be given by the
Owner Trustee by letter to the Certificateholder mailed within
five Business Days of receipt of notice of such termination
from the Servicer given pursuant to Section 9.01(c) of the
Sale and Servicing Agreement, stating (i) the Payment Date
upon or with respect to which final payment of the Certificate
shall be made upon presentation and surrender of the
Certificate at the office of the Paying Agent therein
designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon
presentation and surrender of the Certificate at the office of
the Paying Agent therein specified. The Owner Trustee shall
give such notice to the Certificate Registrar (if other than
the Owner Trustee) and the Paying Agent at the time such
notice is given to the Certificateholder. Upon presentation
and surrender of the Certificate, the Paying Agent shall cause
to be distributed to the Certificateholder amounts
distributable on such Payment Date pursuant to Section 5.02.
In the event that the Certificateholder shall not
surrender its Certificate for cancellation within six months
after the date specified in the above mentioned written
notice, the Owner Trustee shall give a second written notice
to the Certificateholder to surrender its Certificate for
cancellation and receive the final distribution with respect
thereto. If within one year after the second notice, the
Certificate shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the
Certificateholder concerning surrender of its Certificate, and
the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall
be distributed by the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and satisfaction
of all obligations in accordance with Section 3808 of the
Business Trust Statute, as amended, the Owner Trustee shall
cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business
Trust Statute and the Trust shall terminate and this Agreement
(other than Article VIII) shall be of no further force or
effect.
SECTION 9.02. Dissolution upon Bankruptcy of the
Depositor. In the event that an Insolvency Event shall occur
with respect to the Depositor, the Trust shall be dissolved in
accordance with Section 9.01 90 days after the date of such
Insolvency Event, unless, before the end of such 90-day
period, the Owner Trustee shall have received written
instructions from each of the Noteholders, to the effect that
each such party disapproves of the liquidation of the
Receivables and termination of the Trust. Promptly after the
occurrence of any Insolvency Event with respect to the
Depositor, (i) the Depositor shall give the Indenture Trustee
and the Owner Trustee written notice of such Insolvency Event,
(ii) the Owner Trustee shall, upon the receipt of such written
notice from the Depositor, give prompt written notice to the
Certificateholder and the Indenture Trustee, of the occurrence
of such event and (iii) the Indenture Trustee shall, upon
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receipt of written notice of such Insolvency Event from the
Owner Trustee or the Depositor, give prompt written notice to
the Noteholders of the occurrence of such event; provided,
however, that any failure to give a notice required by this
sentence shall not prevent or delay, in any manner, a
dissolution of the Trust pursuant to the first sentence of
this Section 9.02. Upon a dissolution pursuant to this
Section, the Owner Trustee shall direct the Indenture Trustee
promptly to sell the assets of the Trust (other than the Trust
Accounts and the Certificate Distribution Account) in a
commercially reasonable manner and on commercially reasonable
terms. The proceeds of such a sale of the assets of the Trust
shall be treated as collections under the Sale and Servicing
Agreement.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times be a
corporation satisfying the provisions of Section 3807(a) of
the Business Trust Statute; authorized to exercise corporate
trust powers; and having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such corporation shall
publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at
any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the
effect specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged
from the trusts hereby created by giving written notice
thereof to the Administrator; provided, however, that such
resignation and discharge shall only be effective upon the
appointment of a successor Owner Trustee. Upon receiving such
notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been
so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning
Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 10.01
and shall fail to resign after written request therefor by the
Administrator, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take
charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee
by written instrument, in duplicate, one copy of
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which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee
and payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section shall not become effective
until acceptance of appointment by the successor Owner Trustee
pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The
Administrator shall provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03. Successor Owner Trustee. Any successor
Owner Trustee appointed pursuant to Section 10.02 shall
execute, acknowledge and deliver to the Administrator and to
its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Administrator
and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance
such successor Owner Trustee shall be eligible pursuant to
Section 10.01.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail
notice of the successor of such Owner Trustee to all
Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator shall fail to mail
such notice within 10 days after acceptance of appointment by
the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.04. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the
successor of the Owner Trustee hereunder, provided that such
corporation shall be eligible pursuant to Section 10.01,
without the execution or filing of any instrument or any
further act on the part of any of the parties hereto;
anything herein to the contrary notwithstanding; provided
further that the Owner Trustee shall mail notice of such
merger or consolidation to the Rating Agencies.
SECTION 10.05. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal
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requirements of any jurisdiction in which any part of the
Owner Trust Estate or any Financed Equipment may at the time
be located, the Administrator and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the
Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or
any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.01
and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties, and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of
the then separate trustees and co-trustees, as effectively as
if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time
appoint the Owner Trustee, its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law,
to do
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any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Owner Trustee, to the
extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments. This
Agreement may be amended by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder or the
Certificateholder.
This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee, with prior written notice
to the Rating Agencies, with the consent of the Holders of
Notes evidencing not less than a majority of the Outstanding
Amount of the Notes and the consent of 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
the Certificateholder; provided, however, that no such
amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the
Certificateholder or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes required to consent to any
such amendment or eliminate the consent of the
Certificateholder to any such amendment, without the consent
of the holders of all the outstanding Notes and the
Certificate.
Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to the
Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of the
Certificateholder, the Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if
such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of the
Certificateholder provided for in this Agreement or in any
other Basic Document) and of evidencing the authorization of
the execution thereof by the Certificateholder shall be
subject to such reasonable requirements as the Owner Trustee
may prescribe.
Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing
of such amendment with the Secretary of State.
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Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be
entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent
have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.02. No Legal Title to Owner Trust Estate in
the Owner. The Owner shall not have legal title to any part
of the Owner Trust Estate. The Owner shall be entitled to
receive distributions with respect to its undivided ownership
interest therein only in accordance with Articles V and IX.
No transfer, by operation of law or otherwise, of any right,
title, and interest of the Owner to and in its ownership
interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Except
for Section 2.07, the provisions of this Agreement are solely
for the benefit of the Owner Trustee, the Depositor, the
Owner, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders and nothing
in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.04. Notices.
(a) Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall
be deemed given upon receipt by the intended recipient or
three Business Days after mailing if mailed by certified mail,
postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate
Trust Office; if to the Depositor, addressed to John Deere
Receivables, Inc., First Interstate Bank Bldg., 1 East First
Street, Reno, Nevada 89501, Attention of Manager, with a copy
to Deere & Company, One John Deere Place, Moline, Illinois
61265, Attention: Treasury Department, Asset Securitization;
or, as to each party, at such other address as shall be
designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to the
Certificateholder shall be given by first-class mail, postage
prepaid, at the address of the Certificateholder as shown in
the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
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SECTION 11.06. Separate Counterparts. This Agreement may
be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure
to the benefit of, the Depositor, the Owner Trustee and its
successors and the Owner and its successors and permitted
assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by
the Owner shall bind the successors and assigns of the Owner.
SECTION 11.08. Covenant of the Depositor. In the event
that (a) the Certificate Balance shall be reduced by Realized
Losses and (b) any litigation with claims in excess of
$1,000,000 to which the Depositor is a party which shall be
reasonably likely to result in a material judgment against the
Depositor that the Depositor will not be able to satisfy shall
be commenced by the Owner, during the period beginning nine
months following the commencement of such litigation and
continuing until such litigation is dismissed or otherwise
terminated (and, if such litigation has resulted in a final
judgment against the Depositor, such judgment has been
satisfied) the Depositor shall not pay any dividend to JDCC,
or make any distribution on or in respect of its capital stock
to JDCC, or repay the principal amount of any indebtedness of
the Depositor held by JDCC, unless (i) after giving effect to
such payment, distribution or repayment, the Depositor's
liquid assets shall not be less than the amount of actual
damages claimed in such litigation or (ii) the Rating Agency
Condition shall have been satisfied with respect to any such
payment, distribution or repayment. The Depositor further
agrees that prior to the termination of the Trust it shall not
revoke, modify or otherwise amend any agreements with JDCC in
effect on the Closing Date in any manner that would adversely
affect the rights of the Depositor to receive from JDCC
contributions of capital or payments on demand pursuant to
such agreements. The Depositor further covenants and agrees
that it will not enter into any transaction or take any action
(other than any transaction or action contemplated by this
Agreement or any of the Basic Documents) if, as a result of
such transaction or action, any rating of either the Notes or
the Certificate by any of the Rating Agencies would be
downgraded or withdrawn.
SECTION 11.09. No Petition. The Owner Trustee on behalf
of the Trust, the Certificateholder, by accepting a
Certificate, and the Indenture Trustee and each Noteholder by
accepting the benefits of this Agreement, hereby covenant and
agree that they will not at any time institute against the
Depositor, or join in any institution against the Depositor
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 Basic Documents.
SECTION 11.10. No Recourse. The Certificateholder by
accepting a Certificate acknowledges that such
Certificateholder's Certificate represents beneficial
interests in the Trust only and do not represent interests in
or obligations of the Seller, the Servicer, the Administrator,
the Owner Trustee, the Indenture Trustee or any Affiliate
thereof and no recourse may be had
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against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the
Certificate or the Basic Documents.
SECTION 11.11. Headings. The headings of the various
Articles and Sections herein are for convenience of reference
only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
SECTION 11.13. Depositor Payment Obligation. The
Depositor shall be responsible for payment of the
Administrator's fees under the Administration Agreement and
shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
SECTION 11.14. Administrator. The Administrator is
authorized to execute on behalf of the Trust all such
documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust to prepare, file
or deliver pursuant to the Basic Documents. Upon request, the
Owner Trustee shall execute and deliver to the Administrator a
power of attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports,
filings, instruments, certificates and opinions.
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IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year
first above written.
BANKERS TRUST (DELAWARE)
not in its individual capacity
but solely as Owner Trustee,
By: ____________________________
Name:
Title:
JOHN DEERE RECEIVABLES, INC.,
Depositor,
By: ____________________________
Name: Timur Gok
Title: Assistant Secretary
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EXHIBIT A
NUMBER $
R- CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
JOHN DEERE OWNER TRUST 1999-A
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of
equipment retail installment sale and loan contracts secured
by new and used agricultural equipment and industrial
equipment and sold to the Trust (as defined below) by John
Deere Receivables, Inc.
(This Certificate does not represent an interest in or
obligation of John Deere Receivables, Inc., John Deere Capital
Corporation, Deere & Company or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT __________________ is the
registered owner of ________DOLLARS_______ nonassessable,
fully-paid, fractional undivided interest in John Deere Owner
Trust 1999-A (the "Trust") formed by John Deere Receivables,
Inc., a Nevada corporation (the "Seller").
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-
mentioned Trust Agreement.
Bankers Trust (Delaware) Bankers Trust (Delaware)
as Owner Trustee or as Owner Trustee
By Bankers Trust Company,
Authenticating Agent
By: ___________________ By: ____________________
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The Trust was created pursuant to a Trust Agreement
dated as of May 15, 1999 (the "Trust Agreement"), between the
Seller and Bankers Trust (Delaware), as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Trust Agreement or
the Sale and Servicing Agreement dated as of May 15, 1999 (the
"Sale and Servicing Agreement"), among the Trust, the Seller
and John Deere Capital Corporation, as servicer (the
"Servicer"), as applicable.
This Certificate is the duly authorized Certificate
designated as the "Asset Backed Certificate" (herein called
the "Certificate"). Also issued under the Indenture, dated as
of May 15, 1999, between the Trust and The Bank of New York,
as indenture trustee, are the Class A-1 4.9988% Asset Backed
Notes, the Class A-2 5.466% Asset Backed Notes, the Class A-3
5.94% Asset Backed Notes, the Class A-4 6.12% Asset Backed
Notes and the Class B 6.10% Asset Backed Notes (collectively,
the "Notes"). This Certificate is issued under and is subject
to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The property of the Trust
includes a pool of retail installment sale and loan contracts
for agricultural and construction equipment (the
"Receivables"), all monies received on or after April 30, 1999
from payments on the Receivables, security interests in the
equipment financed thereby, certain bank accounts and the
proceeds thereof, proceeds from claims on certain insurance
policies and certain other rights under the Trust Agreement
and the Sale and Servicing Agreement, all right, title, and
interest of the Seller in and to the Purchase Agreement, dated
as of May 15, 1999, between John Deere Capital Corporation and
the Seller and all proceeds of the foregoing. The rights of
the holders of the Certificate are subordinated to the rights
of the holders of the Notes, as set forth in the Sale and
Servicing Agreement.
Under the Trust Agreement, there will be distributed
on the 15th day of each month or, if such day is not a
Business Day, the next Business Day (the "Payment Date"),
commencing on June 15, 1999, to the person in whose name this
Certificate is registered at the close of business on the last
day of the month (the "Record Date") immediately preceding the
month in which such Payment Date occurs the
Certificateholder's fractional undivided interest in the
amount to be distributed to the Certificateholder on such
Payment Date.
The holder of this Certificate acknowledges and agrees
that its rights to receive distributions in respect of this
Certificate are subordinated to the rights of the Class A
Noteholders as described in the Sale and Servicing Agreement
and the Indenture.
It is the intention of the parties that the Trust will
be disregarded as an entity separate from the Owner for U.S.
federal income tax purposes.
The Certificateholder, by its acceptance of a
Certificate, covenants and agrees that the Certificateholder
will not at any time institute against the Seller, or join in
any institution against the Seller 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, the
Trust Agreement or any of the Basic Documents.
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Distributions on this Certificate will be made as
provided in the Trust Agreement by the Owner Trustee by wire
transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender
of this Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee
of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office
or agency maintained for the purpose by the Owner Trustee in
the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect
as if set forth at this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Owner
Trustee, by manual signature, this Certificate shall not
entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of
the Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
JOHN DEERE OWNER TRUST 1999-A
By BANKERS TRUST (DELAWARE)
as Owner Trustee
Dated: By: _________________________
Page 30
<PAGE>
[Reverse of Certificate]
The Certificate does not represent an obligation of,
or an interest in, the Seller, the Servicer, Deere & Company,
the Indenture Trustee, the Owner Trustee or any affiliates of
any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic
Documents. In addition, this Certificate is not guaranteed by
any governmental agency or instrumentality and is limited in
right of payment to certain collections with respect to the
Receivables (and certain other amounts), all as more
specifically set forth herein and in the Sale and Servicing
Agreement. The Certificate is limited in right of payment to
certain collections and recoveries respecting the Receivables,
all as more specifically set forth in the Sale and Servicing
Agreement. A copy of each of the Sale and Servicing Agreement
and the Trust Agreement may be examined during normal business
hours at the principal office of the Seller, and at such other
places, if any, designated by the Seller, by the
Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification
of the rights and obligations of the Seller and the rights of
the Certificateholder under the Trust Agreement at any time by
the Seller and the Owner Trustee with the consent of the
holders of the Notes voting as a class evidencing not less
than a majority of the outstanding Notes and the consent of
the Certificateholder. Any such consent by the holder of this
Certificate shall be conclusive and binding on the holder of
this Certificate and of any Certificate issued upon the
transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent
of the holder of the Certificate.
As provided in the Trust Agreement, this Certificate
is non-transferable. The initial Certificate Registrar
appointed under the Trust Agreement is Bankers Trust Company,
New York, New York.
The Certificate is issuable only as a registered
Certificate without coupons in denominations of $100,000 or
integral multiples of $1,000 in excess thereof. As provided
in the Trust Agreement and subject to certain limitations
therein set forth, the Certificate is exchangeable for new
Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the holder
surrendering the same. No service charge will be made for any
such exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any
agent of the Owner Trustee or the Certificate Registrar may
treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and none of the Owner
Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the
Trust Agreement and the Trust created thereby shall terminate
upon the payment to the Certificateholder of all amounts
required
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to be paid to it pursuant to the Trust Agreement and the Sale
and Servicing Agreement and the disposition of all property
held as part of the Trust. The Servicer of the Receivables
may at its option purchase the corpus of the Trust at a price
specified in the Sale and Servicing Agreement, and such
purchase of the Receivables and other property of the Trust
will effect early retirement of the Certificate; however, such
right of purchase is exercisable only as of the last day of
any Collection Period as of which the Pool Balance is less
than or equal to 10% of the initial principal balance of the
Receivables.
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EXHIBIT B
CERTIFICATE OF TRUST OF
JOHN DEERE OWNER TRUST 1999-A
THIS Certificate of Trust of JOHN DEERE OWNER TRUST
1999-A (the "Trust"), dated as of May 15, 1999, is being duly
executed and filed by Bankers Trust (Delaware), a Delaware
banking corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code, Section
3801 et seq.).
1. Name. The name of the business trust formed
hereby is JOHN DEERE OWNER TRUST 1999-A.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware is
Bankers Trust (Delaware), E.A. Delle Donne Corporate Center,
Montgomery Building, 1011 Centre Road, Suite 200, Wilmington,
Delaware 19805.
3. This Certificate of Trust will be effective May
__, 1999.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust
as of the date first above written.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as
trustee of the Trust.
By: _______________________________
Name:
Title:
Page 33
- - -
EXHIBIT 4.3
SALE AND SERVICING AGREEMENT
among
JOHN DEERE OWNER TRUST 1999-A
Issuer
JOHN DEERE RECEIVABLES, INC.
Seller
and
JOHN DEERE CAPITAL CORPORATION
Servicer
Dated as of May 15, 1999
<PAGE>
TABLE OF CONTENTS Page
ARTICLE I Definitions
SECTION 1.01 Definitions 1
SECTION 1.02 Other Definitional Provisions 13
SECTION 1.03 Calculations 14
ARTICLE II Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables 14
ARTICLE III The Receivables
SECTION 3.01 Representations and Warranties of Seller 15
SECTION 3.02 Repurchase by Seller upon Breach 15
SECTION 3.03 Custody of Receivable Files 16
SECTION 3.04 Duties of Servicer as Custodian 16
SECTION 3.05 Instructions; Authority to Act 17
SECTION 3.06 Custodian's Indemnification 17
SECTION 3.07 Effective Period and Termination 17
ARTICLE IV Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer 18
SECTION 4.02 Collection of Receivable Payments 18
SECTION 4.03 Realization upon Receivables 19
SECTION 4.04 Physical Damage Insurance 19
SECTION 4.05 Maintenance of Security Interests
in Financed Equipment 19
SECTION 4.06 Covenants of Servicer 19
SECTION 4.07 Purchase by Servicer of Receivables
upon Breach 19
SECTION 4.08 Servicing Fee 20
SECTION 4.09 Servicer's Certificate 20
SECTION 4.10 Annual Statement as to Compliance;
Notice of Default 20
SECTION 4.11 Annual Independent Certified Public
Accountants' Report 21
SECTION 4.12 Access to Certain Documentation and
Information Regarding Receivables 21
SECTION 4.13 Servicer Expenses 21
SECTION 4.14 Appointment of Sub-Servicer 22
ARTICLE V Distributions; Reserve Account; Statements
to Certificateholders and Noteholders
SECTION 5.01 Establishment of Trust Accounts 22
SECTION 5.02 Collections 24
SECTION 5.03 Additional Deposits 25
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SECTION 5.04 Distributions 25
SECTION 5.05 Reserve Account 26
SECTION 5.06 Statements to the Certificateholder
and Noteholders 26
SECTION 5.07 Net Deposits 28
ARTICLE VI The Seller
SECTION 6.01 Representations of Seller 28
SECTION 6.02 Corporate Existence 30
SECTION 6.03 Liability of Seller; Indemnities 30
SECTION 6.04 Merger or Consolidation of, or
Assumption of the Obligations of, Seller 31
SECTION 6.05 Limitation on Liability of Seller
and Others 32
SECTION 6.06 Seller May Own the Certificate or Notes 32
ARTICLE VII The Servicer
SECTION 7.01 Representations of Servicer 32
SECTION 7.02 Indemnities of Servicer 33
SECTION 7.03 Merger or Consolidation of, or Assumption
of the Obligations of, Servicer 35
SECTION 7.04 Limitation on Liability of Servicer
and Others 35
SECTION 7.05 JDCC Not to Resign as Servicer 36
SECTION 7.06 Servicer to Act as Administrator 36
ARTICLE VIII Default
SECTION 8.01 Servicer Default 36
SECTION 8.02 Appointment of Successor 37
SECTION 8.03 Notification to Noteholders and the
Certificateholder 38
SECTION 8.04 Waiver of Past Defaults 38
ARTICLE IX Termination
SECTION 9.01 Optional Purchase of All Receivables
and Termination 39
ARTICLE X Miscellaneous Provisions
SECTION 10.01 Amendment 40
SECTION 10.02 Protection of Title to Trust 41
SECTION 10.03 Notices 43
SECTION 10.04 Assignment 43
SECTION 10.05 Limitations on Rights of Others 43
SECTION 10.06 Severability 43
SECTION 10.07 Separate Counterparts 44
SECTION 10.08 Headings 44
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SECTION 10.09 Governing Law 44
SECTION 10.10 Assignment to Indenture Trustee 44
SECTION 10.11 Nonpetition Covenants 44
SECTION 10.12 Limitation of Liability of Owner Trustee
and Indenture Trustee 44
SECTION 10.13 Additional Securities 45
SCHEDULES
SCHEDULE A - Schedule of Receivables 47
SCHEDULE B - Location of Receivable Files 48
SCHEDULE C - List of Fiscal Months 49
SCHEDULE D - Servicer's Certificate 50
SCHEDULE E - Statement to Certificateholder 53
SCHEDULE F - Statement to Noteholders 55
SCHEDULE G - Payment and Deposit Instructions to
Indenture Trustee 57
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<PAGE>
This SALE AND SERVICING AGREEMENT dated as of May 15,
1999, among JOHN DEERE OWNER TRUST 1999-A, a Delaware business
trust (the "Issuer"), JOHN DEERE RECEIVABLES, INC., a Nevada
corporation (the "Seller"), and JOHN DEERE CAPITAL
CORPORATION, a Delaware corporation (the "Servicer").
WHEREAS the Issuer desires to purchase a portfolio of
receivables arising in connection with agricultural and
construction equipment retail installment sale and loan
contracts generated by John Deere Capital Corporation in the
ordinary course of business;
WHEREAS the Seller has purchased such receivables from
John Deere Capital Corporation and desires to sell such
receivables to the Issuer; and
WHEREAS John Deere Capital Corporation desires to service
such receivables.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
Definitions
SECTION 1.01 Definitions. Whenever used in this
Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"Administration Agreement" means the Administration
Agreement dated as of May 15, 1999 between the Trust, JDCC, as
Administrator, and The Bank of New York, as indenture trustee,
as amended from time to time.
"Administration Fee" means the fee payable to the
Administrator pursuant to Section 3 of the Administration
Agreement.
"Administrator" means the administrator under the
Administration Agreement.
"Agreement" means this Sale and Servicing Agreement, as
the same may be amended and supplemented from time to time.
"Amount Financed" with respect to a Receivable means the
amount advanced under the Receivable toward the purchase price
of the related Financed Equipment and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means
the fixed annual rate of finance charges specified in the
related Contract.
"Certificate" means the Certificate (as defined in the
Trust Agreement).
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<PAGE>
"Certificate Adjusted Principal Distributable Amount"
means, with respect to any Payment Date, an amount equal to
the excess, if any, of (a) the outstanding principal amount of
the Certificates (before giving effect to payments on such
Payment Date) less any Certificate Principal Carryover
Shortfall over (b) the Certificate Percentage of the
outstanding Note Value as of the end of the related Collection
Period; provided, however, that if on such Payment Date any
principal of the Class A-1 Notes remains outstanding, the
Certificate Adjusted Principal Distributable Amount will not
exceed an amount equal to the Unscheduled Principal Payments
for such Payment Date less the Class B Adjusted Principal
Distributable Amount.
"Certificate Balance" equals, initially, $12,086,832 and,
on each day thereafter, equals the initial Certificate Balance
reduced by all amounts allocable to principal previously
distributed to the Certificateholder.
"Certificate Distribution Account" has the meaning
assigned to such term in the Trust Agreement.
"Certificateholder" has the meaning assigned to such term
in the Trust Agreement.
"Certificate Monthly Principal Distributable Amount"
means, with respect to any Payment Date the sum of (a) the
Certificate Adjusted Principal Distributable Amount and (b)
the Certificate Principal Carryover Shortfall; provided that
the Certificate Monthly Principal Distributable Amount shall
not exceed the Certificate Balance.
"Certificate Percentage" will be 1.50%.
"Certificate Principal Carryover Shortfall" means, for any
Payment Date, the excess of the Certificate Monthly Principal
Distributable Amount for the preceding Payment Date over (b)
the amount of principal actually paid to the Certificateholder
on such preceding Payment Date.
"Class A Monthly Principal Distributable Amount" means,
for any Payment Date, the Principal Distributable Amount less
the sum of (i) the Class B Monthly Principal Distributable
Amount and (ii) the Certificate Monthly Principal
Distributable Amount; provided that the Class A Monthly
Principal Distributable Amount will not exceed the outstanding
principal balance of the Class A Notes; provided further that
on (i) the Class A-1 Final Payment Date, the Class A Monthly
Principal Distributable Amount will at least equal the
outstanding principal balance of the Class A-1 Notes, (ii) the
Class A-2 Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding
principal balance of the Class A-2 Notes, (iii) the Class A-3
Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding
principal balance of the Class A-3 Notes, and (iv) the Class
A-4 Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding
principal balance of the Class A-4 Notes.
"Class A-1 Note Final Payment Date" means June 19, 2000.
"Class A-1 Note Interest Rate" means a rate per annum
equal to 4.9988%.
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<PAGE>
"Class A-1 Notes" means the Class A-1 Notes (as defined in
the Indenture).
"Class A-2 Note Final Payment Date" means August 15, 2001.
"Class A-2 Note Interest Rate" means a rate per annum
equal to 5.466%.
"Class A-2 Notes" means the Class A-2 Notes (as defined in
the Indenture).
"Class A-3 Note Final Payment Date" means October 15,
2002.
"Class A-3 Note Interest Rate" means a rate per annum
equal to 5.94%.
"Class A-3 Notes" means the Class A-3 Notes (as defined in
the Indenture).
"Class A-4 Note Final Payment Date" means October 17,
2005.
"Class A-4 Note Interest Rate" means a rate per annum
equal to 6.12%.
"Class A-4 Notes" means the Class A-4 Notes (as defined in
the Indenture).
"Class B Adjusted Principal Distributable Amount" means,
for any Payment Date, an amount equal to the excess, if any,
of (a) the outstanding principal balance of the Class B Note
(before giving effect to payments on such Payment Date) less
any Class B Principal Carryover Shortfall over (b) the Class B
Percentage of the Note Value as of the end of the related
Collection Period; provided that if on such Payment Date any
principal of the A-1 Notes remains outstanding, then the Class
B Adjusted Principal Distributable Amount will not exceed an
amount equal to the Unscheduled Principal Payments for such
Payment Date. Notwithstanding the above, on and after the
Payment Date on which the principal balance of the Class A
Notes is reduced to zero, the Class B Adjusted Principal
Distributable Amount will be the Principal Distributable
Amount less the sum of (i) the amount, if any, necessary to
reduce the aggregate principal balances of the Class A Notes
to zero and (ii) the Certificate Monthly Principal
Distributable Amount.
"Class B Note Final Payment Date" means October 17, 2005.
"Class B Note Interest Rate" means a rate par annum equal
to 6.10%.
"Class B Monthly Principal Distributable Amount" means,
for any Payment Date, the sum of (a) the Class B Adjusted
Principal Distributable Amount and (b) the Class B Principal
Carryover Shortfall; provided that the Class B Monthly
Principal Distributable Amount will not exceed the outstanding
principal amount of the Class B Note; provided further that on
the Class B Final Payment Date, the Class B Monthly Principal
Distributable Amount shall equal the outstanding principal
amount of the Class B Note.
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"Class B Principal Carryover Shortfall" means, as for any
Payment Date, the excess of the Class B Monthly Principal
Distributable Amount for the preceding Payment Date over the
amount of principal actually paid to the Class B Noteholder on
such preceding Payment Date.
"Class B Note" means the Class B Note (as defined in the
Indenture).
"Class B Percentage" means 4.0%.
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 5.01.
"Collection Period" means, with respect to the first
Payment Date, the period from the Cut-off Date through the
Fiscal Month ending on May 30, 1999 and, with respect to each
subsequent Payment Date, the Fiscal Month ending immediately
preceding such Payment Date. Any amount stated "as of the
close of business on the last day of a Collection Period"
shall give effect to the following calculations as determined
as of the end of the day on such last day: (1) all
applications of collections and (2) all distributions to be
made on the following Payment Date.
"Contract" means an agricultural or construction equipment
retail installment sale or loan contract.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its
corporate trust business shall be administered, which office
at date of the execution of this Agreement is located at 101
Barclay Street, New York, New York 10286, Attention: Asset
Backed Finance Unit; or at such other address as the Indenture
Trustee may designate from time to time by notice to the
Noteholders and the Seller, or the principal corporate trust
office of any successor Indenture Trustee (the address of
which the successor Indenture Trustee will notify the
Noteholders and the Seller).
"Cut-off Date" means April 30, 1999.
"Dealer" means the dealer who sold an item of Financed
Equipment securing a Receivable.
"Deere" means Deere & Company, a Delaware corporation, and
its successors.
"Delivery" when used with respect to Trust Account
Property the perfection and priority in which is governed by
the law of a jurisdiction which has adopted the 1994 Revision
to Article 8 of the UCC means:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other
obligations that constitute "instruments" within the meaning
of Section 9-105(l)(i) of the UCC (other than certificated
securities) and are susceptible to physical delivery, transfer
thereof to the Indenture Trustee or its nominee or custodian
by physical delivery to the Indenture Trustee or its nominee
or custodian endorsed to, or registered in the name of, the
Indenture Trustee or its nominee or custodian or endorsed in
blank, and such additional or
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alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Trust
Property to the Indenture Trustee or its nominee or custodian
free and clear of any adverse claims, consistent with changes
in applicable law or regulations or the interpretation
thereof;
(b) with respect to a "certificated security" (as
defined in Section 8-102(a)(4) of the UCC), transfer thereof
(i) by physical delivery of such certificated security
endorsed to, or registered in the name of, the Indenture
Trustee or its nominee or custodian or endorsed in blank, (ii)
by physical delivery of such certificated security in
registered form to a "securities intermediary" (as defined in
Section 8-102(a)(14) of the UCC) acting on behalf of the
Indenture Trustee if the certificated security has been
specially endorsed to the Indenture Trustee by an effective
endorsement;
(c) with respect to any security issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the
Federal National Mortgage Association that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations, the following procedures, all
in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC: book-
entry registration of such Trust Account Property to an
appropriate book-entry account maintained with a Federal
Reserve Bank by a securities intermediary which is also a
"depository" pursuant to applicable Federal regulations and
issuance by such securities intermediary of a deposit advice
or other written confirmation of such book-entry registration
to the Indenture Trustee or its nominee or custodian of the
purchase by the Indenture Trustee or its nominee or custodian
of such book-entry securities; the identification by the
Federal Reserve Bank of such book-entry certificates on its
records being credited to the securities intermediary's
Participant's securities account; the making by such
securities intermediary of entries in its books and records
identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as
belonging to the Indenture Trustee or its nominee or custodian
and indicating that such custodian holds such Trust Account
Property solely as agent for the Indenture Trustee or its
nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account
Property to the Indenture Trustee or its nominee or custodian,
consistent with changes in applicable law or regulations or
the interpretation thereof; and
(d) with respect to any item of Trust Account Property
that is an uncertificated security under Article 8 of the UCC
and that is not governed by clause (c) above, registration on
the books and records of the issuer thereof in the name of the
Indenture Trustee, or by another Person (not a securities
intermediary) either becoming the registered owner of the
uncertificated security on behalf of the Indenture Trustee, or
having become the registered owner, acknowledging that it
holds for the Indenture Trustee, or the issuer thereof
agreeing that it will comply with instructions originated by
the Indenture Trustee without further consent of the
registered owner thereof;
(e) in each case of delivery contemplated herein, the
Indenture Trustee shall make appropriate notations on its
records, and shall cause same to be made on the records of its
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nominees, indicating that securities are held in trust
pursuant to and as provided in this Agreement;
(f) with respect to a "financial asset" (as defined in
Section 8-102(a)(9) of the UCC) to the extent not covered by
paragraphs (a) through (e) above, if a securities intermediary
(i) indicates by book entry that such financial asset has been
credited to the Indenture Trustee's "securities account" (as
defined in Section 8-501(a) of the UCC), (ii) receives a
financial asset from the Indenture Trustee or acquires a
financial asset for the Indenture Trustee, and in either case,
accepts it for credit to the Indenture Trustee's securities
account, (iii) becomes obligated under other law, regulation
or rule to credit a financial asset to the Indenture Trustee's
securities account, or (iv) has agreed that it will comply
with "entitlement orders" (as defined in Section 8-102(a)(8)
of the UCC) originated by the Indenture Trustee without
further consent by the "entitlement holder" (as defined in
Section 8-102(a)(7) of the UCC).
"Depositor" shall mean the Seller in its capacity as
Depositor under the Trust Agreement.
"Determination Date" means, with respect to any Payment
Date, the third Business Day prior to such Payment Date.
"Eligible Deposit Account" means either (a) a segregated
trust account with an Eligible Institution or (b) a segregated
trust account with the corporate trust department of a
depository institution organized under the laws of the United
States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for
funds deposited in such account, so long as any of the
unsecured debt obligations of such depository institution
shall have a credit rating from each of Moody's and Standard &
Poor's in one of its generic rating categories which signifies
investment grade and if rated by Fitch in one of its generic
rating categories which signifies investment grade.
"Eligible Institution" means (a) the corporate trust
department of the Indenture Trustee, the Owner Trustee or
Bankers Trust Company as long as it is paying agent under the
Trust Agreement, or (b) a depository institution organized
under the laws of the United States of America or any one of
the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), (1)(i) which has either
(A) a long-term unsecured debt rating of AAA or better by
Standard & Poor's, Aaa or better by Moody's and, if rated by
Fitch, AAA or (B) a short-term unsecured debt rating or a
certificate of deposit rating of A-1+ by Standard & Poor's, P-
1 or better by Moody's and, if rated by Fitch, F-1+, or any
other long-term, short-term or certificate of deposit rating
acceptable to the Rating Agencies and (ii) whose deposits are
insured by the FDIC or (2)(i) the parent of which has a long-
term or short-term unsecured debt rating acceptable to the
Rating Agencies and (ii) whose deposits are insured by the
FDIC. If so qualified, the Indenture Trustee, the Owner
Trustee, Bankers Trust Company or The Bank of New York may be
considered an Eligible Institution for the purposes of clause
(b) of this definition.
"Eligible Investments" mean book-entry securities,
negotiable instruments or securities represented by
instruments in bearer or registered form which evidence:
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(a) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company
incorporated under the laws of the United States of America or
any state thereof (or any domestic branch of a foreign bank)
and subject to supervision and examination by Federal or State
banking or depository institution authorities; provided,
however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a
Person other than such depository institution or trust
company) thereof shall have a credit rating from each of
Standard & Poor's, Moody's and, if rated by Fitch, Fitch, in
the highest investment category granted thereby;
(c) commercial paper having, at the time of the
investment or contractual commitment to invest therein, a
rating from each of Standard & Poor's, Moody's and, if rated
by Fitch, Fitch in the highest investment category granted
thereby;
(d) investments in money market funds having a rating
from each of Standard & Poor's and Moody's in the highest
investment category granted thereby (including funds for which
the Indenture Trustee or the Owner Trustee or any of their
respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security
that is a direct obligation of, or fully guaranteed by, the
United States of America or any agency or instrumentality
thereof the obligations of which are backed by the full faith
and credit of the United States of America, in either case
entered into with a depository institution or trust company
(acting as principal) described in clause (b); and
(g) any other investment permitted by each of the
Rating Agencies in writing; provided, however, that if an
investment would be an Eligible Investment solely by virtue of
clause (b), (c), (d), (e) or (f) and has a remaining maturity
of more than 30 days at the time of its acquisition by the
Indenture Trustee, then such investment shall be an Eligible
Investment only if the long-term unsecured debt rating of the
obligor on such investment is at least A1 from Moody's and at
least A+ by S&P.
"Financed Equipment" means an item of agricultural or
construction equipment, together with all accessions thereto,
securing an Obligor's indebtedness under the respective
Receivable.
"Fiscal Month" means a fiscal month specified in Schedule
C, as may be amended from time to time by the delivery by the
Servicer to the Seller, the Owner Trustee and the Indenture
Trustee of a new Schedule C hereto listing the fiscal months;
provided that the fiscal months on any such new Schedule C
shall have the ranges of number of days generally similar to
the ranges of the number of days in the fiscal months set
forth in the original Schedule C hereto and shall
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not result in a Collection Period that does not allow the
Servicer a sufficient amount of time to perform the
calculations required of it hereunder in respect of such
Collection Period prior to the related Determination Date.
"Fitch" means Fitch IBCA, Inc. or its successor.
"Indenture" means the Indenture dated as of May 15, 1999,
between the Issuer and the Indenture Trustee, as the same may
be amended and supplemented from time to time.
"Indenture Trustee" means The Bank of New York solely in
its capacity as indenture trustee under the Indenture and not
in its individual capacity, its successors in interest and any
successor indenture trustee under the Indenture.
"Initial Pool Balance" means the Pool Balance as of the
Cut-off Date, which is $800,100,048.
"Insolvency Event" means, with respect to a specified
Person, (a) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an
involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such
Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or (b) the
commencement by such Person of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by such
Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
for such Person or for any substantial part of its property,
or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of
action by such Person in furtherance of any of the foregoing.
"Investment Earnings" means, with respect to any Payment
Date, the investment earnings (net of losses and investment
expenses) on amounts on deposit in the Trust Accounts to be
deposited into the Collection Account on such Payment Date
pursuant to Section 5.01(b).
"JDCC" means John Deere Capital Corporation, a Delaware
corporation, and its successors.
"Lien" means a security interest, lien, charge, pledge,
equity or encumbrance of any kind, other than tax liens,
mechanics' liens and any liens which attach to the respective
Receivable by operation of law as a result of any act or
omission by the related Obligor.
"Liquidated Receivable" means any Receivable liquidated by
the Servicer through the sale or other disposition of the
Financed Equipment or which the Servicer has determined to
charge-off without realizing upon the Financed Equipment.
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"Liquidation Proceeds" means, with respect to any
Liquidated Receivable, the moneys collected in respect
thereof, from whatever source (including the proceeds of
insurance policies with respect to the related Financed
Equipment or Obligor but excluding any amounts from Dealer
reserves) on a Liquidated Receivable during the Fiscal Month
in which such Receivable became a Liquidated Receivable, net
of the sum of any amounts expended by the Servicer in
connection with such liquidation and any amounts required by
law to be remitted to the Obligor on such Liquidated
Receivable.
"Moody's" means Moody's Investors Service, Inc., or its
successor.
"Net APR" means, with respect to a Receivable, its APR
less the Servicing Fee Rate.
"Note Distribution Account" means the account designated
as such, established and maintained pursuant to Section 5.01.
"Note Value" means, with respect to any day, the present
value of the unpaid Scheduled Payments on the Receivables,
discounted at an annual rate equal to 7.920%. For purposes of
calculating Note Value, in the case of a defaulted Receivable,
(a) prior to the time the related Financed Equipment becomes
repossessed, the Scheduled Payments on such Receivable will be
computed based on the amounts that would have been the
Scheduled Payments had such delinquency not occurred, (b)
after the time, if any, at which the Financed Equipment
securing such defaulted Receivable has been repossessed, but
prior to the time such defaulted Receivable becomes a
Liquidated Receivable, the Principal Balance of such defaulted
Receivable shall be added to such Note Value, but there shall
be deemed to be no Scheduled Payments due on such defaulted
Receivable and (c) after the time such defaulted Receivable
becomes a Liquidated Receivable, and after the payment of a
Purchase Amount in respect of a Purchased Receivable, there
shall be deemed to be no Scheduled Payments due on such
Receivable.
"Noteholders' Distributable Amount" means, with respect to
any Payment Date, the sum of (a) the accrued and unpaid
interest on the Notes for such Payment Date and (b) the Note
Principal Distributable Amount.
"Note Principal Distributable Amount" means, for any
Payment Date, the sum of (i) the Class A Monthly Principal
Distributable Amount and (ii) the Class B Monthly Principal
Distributable Amount.
"Obligor" on a Receivable means the purchaser or co-
purchasers of the Financed Equipment and any other Person who
owes payments under the Receivable.
"Officers' Certificate" means a certificate signed by (a)
the chairman of the board, the president, any vice president,
the treasurer or any assistant treasurer and (b) the secretary
or any assistant secretary of the Seller or the Servicer, as
appropriate.
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"Opinion of Counsel" means one or more written opinions of
counsel who may be an employee of or counsel to the Seller or
the Servicer, which counsel shall be acceptable to the
Indenture Trustee, the Owner Trustee or the Rating Agencies,
as applicable.
"Owner Trust Estate" has the meaning assigned to such term
in the Trust Agreement.
"Owner Trustee" means Bankers Trust (Delaware) in its
capacity as Owner Trustee under the Trust Agreement, its
successors in interest and any successor owner trustee under
the Trust Agreement.
"Payment Date" means the 15th day of each month or, if
such day is not a Business Day, the immediately following
Business Day, commencing on June 15, 1999.
"Pool Balance" as of the close of business on the last day
of a Collection Period, means the aggregate Principal Balance
of the Receivables (excluding Purchased Receivables and
Liquidated Receivables).
"Principal Balance" of a Receivable, as of the close of
business on the last day of a Collection Period, means the
Amount Financed minus the sum of (i) that portion of all
Scheduled Payments paid on or prior to such day allocable to
principal using the actuarial method, (ii) any payment of the
Purchase Amount with respect to the Receivable purchased by
the Servicer or repurchased by the Seller and allocable to
principal, and (iii) any prepayment in full or any partial
prepayments applied to reduce the Principal Balance of the
Receivable.
"Principal Carryover Shortfall" means, with respect to any
Payment Date, the excess of (i) the Principal Distributable
Amount for the immediately preceding Payment Date over (ii)
the amount that was actually deposited into the Note
Distribution Account and the Certificate Distribution Account
on account of principal on such immediately preceding Payment
Date.
"Principal Distributable Amount" means, with respect to
any Payment Date, will be the sum of (i) the Principal
Distribution Amount for such Payment Date and (ii) the
Principal Carryover Shortfall for such Payment Date.
"Principal Distribution Amount" means, with respect to any
Payment Date, an amount equal to the Note Value at the
beginning of the related Collection Period less the Note Value
at the end of that Collection Period.
"Purchase Agreement" means the Purchase Agreement dated as
of May 15, 1999, between the Seller and JDCC, as the same may
be amended and supplemented from time to time.
"Purchase Amount" means the amount, as of the close of
business on the last day of a Collection Period, required to
prepay in full the respective Receivable under the terms
thereof including interest to the last day of such Collection
Period.
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"Purchased Receivable" means a Receivable purchased as of
the close of business on the last day of a Collection Period
by the Servicer pursuant to Section 4.07 or repurchased as of
such time by the Seller pursuant to Section 3.02.
"Rating Agencies" means Moody's, Standard & Poor's and
Fitch. If no such organization or successor is in existence,
"Rating Agency" shall be a nationally recognized statistical
rating organization or other comparable Person designated by
the Seller, notice of which designation shall be given to the
Indenture Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any
action, that each Rating Agency shall have been given 10 days
(or such shorter period that is acceptable to each Rating
Agency) prior notice thereof and that each of the Rating
Agencies shall have notified the Seller, the Servicer, the
Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the
then current rating of the Notes.
"Realized Losses" means the excess of the Principal
Balance of any Liquidated Receivable over Liquidation Proceeds
to the extent allocable to principal.
"Receivable" means any retail installment sale or loan
contract listed on Schedule A hereto.
"Receivable Files" means the documents specified in
Section 3.03.
"Recoveries" means, with respect to any Liquidated
Receivable, monies collected in respect thereof, from whatever
source (other than any amounts from Dealer reserves) after the
Fiscal Month in which such Receivable became a Liquidated
Receivable, net of the sum of any amounts expended by the
Servicer for the account of the Obligor and any amounts
required by law to be remitted to the Obligor.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.01.
"Reserve Account Initial Deposit" means, with respect to
the Closing Date, $16,114,837.
"Scheduled Payment" on a Receivable means the scheduled
periodic payment of principal and interest required to be made
by the Obligor.
"Seller" means John Deere Receivables, Inc., a Nevada
corporation, and its successors in interest to the extent
permitted hereunder.
"Servicer" means JDCC, as the servicer of the Receivables,
and each successor to JDCC (in the same capacity) pursuant to
Section 7.03 or 8.02.
"Servicer Default" means an event specified in Section
8.01.
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"Servicer's Certificate" means an Officers' Certificate of
the Servicer delivered pursuant to Section 4.09, substantially
in the form of Schedule D.
"Servicing Fee" means the fee payable to the Servicer for
services rendered during the respective Collection Period,
determined pursuant to Section 4.08.
"Servicing Fee Rate" means 1.00% per annum.
"Specified Reserve Account Balance" means, unless
otherwise consented to by the Rating Agencies as described
below, with respect to any Payment Date, the greater of (a)
2.00% of the Note Value as of the close of business on the
last day of the related Collection Period and (b) 1.75% of the
initial Note Value; provided, however, that the Specified
Reserve Account Balance shall not exceed the sum of the
outstanding principal amount of the Notes immediately
preceding such Payment Date less the Principal Distribution
Amount to be deposited in the Note Distribution Account on
such Payment Date and upon payment of all interest and
principal due on the Notes, the Specified Reserve Account
Balance shall be zero; provided further that the amount in
clause (a) with respect to a Payment Date (referred to herein
as the "current Payment Date") shall be equal to the amount
calculated for such clause (a) for the Payment Date
immediately preceding such current Payment Date if a Specified
Reserve Account Condition has occurred and is continuing. The
Specified Reserve Account Balance may be reduced or the
definition otherwise modified without the consent of the
Noteholders and the Certificateholder provided that the Rating
Agencies confirm in writing that such reduction or
modification will not result in the reduction or withdrawal of
the then current rating of any class of the Notes.
"Specified Reserve Account Condition" occurs in respect of
a Payment Date so long as:
(a) the aggregate of the Realized Losses realized from
the Cut-off-Date through the end of the Collection Period
preceding such current Payment Date exceeds the amount equal
to 2.25% of the Initial Pool Balance;
(b) other than in respect of the first two Payment
Dates, the sum of (i) four times the aggregate of the Realized
Losses realized during the three Collection Periods
immediately preceding such current Payment Date, plus (ii) the
aggregate principal amount of all Receivables as to which the
related Financed Equipment has been repossessed but which has
not become a Liquidated Receivable exceeds the amount equal to
1.65% of the Pool Balance at the beginning of such three
Collection Periods; or
(c) the Average Delinquency Ratio exceeds 2.25% through
and including the third consecutive Payment Date as of which
such ratio does not exceed and has not exceeded such
percentage. For the purposes of this clause, the "Average
Delinquency Ratio," means, as of any Payment Date (other than
in respect of the first two Payment Dates), the average of the
Delinquency Ratios for the three preceding Collection Periods;
and "Delinquency Ratio" means (i) the aggregate amount of
Scheduled Payments that are delinquent by more than 60 days as
of the end of the Collection Period immediately preceding such
current Payment Date (ii) divided by the Pool Balance as of
the end of such Collection Period.
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"Standard & Poor's" means Standard & Poor's, a division of
the McGraw-Hill Companies, Inc., or any successor to the
business of such division.
"Sub-Servicer" means Deere Credit Services, Inc., a
Delaware corporation, and each successor to Deere Credit
Services, Inc. (in the same capacity) pursuant to Section
4.14.
"Total Distribution Amount" means, for each Payment Date,
the sum of the aggregate collections in respect of Receivables
(including Liquidation Proceeds and Purchase Amounts) received
during the related Collection Period, plus Investment
Earnings.
"Transfer Date" means, with respect to any Payment Date,
the Business Day preceding such Payment Date.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all
amounts and investments held from time to time in any Trust
Account (whether in the form of deposit accounts, book-entry
securities, uncertificated securities or otherwise), including
the Reserve Account Initial Deposit, and all proceeds of the
foregoing.
"Trust Accounts" has the meaning assigned thereto in
Section 5.01.
"Trust Agreement" means the Trust Agreement dated as of
May 15, 1999, between the Seller and the Owner Trustee, as the
same may be amended and supplemented from time to time.
"Trust Officer" means, in the case of the Indenture
Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee, including any Vice President, Assistant
Vice President, Secretary, Assistant Secretary or any other
officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with
the particular subject and, with respect to the Owner Trustee,
any officer in the Corporate Trustee Administration Department
of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement and the Basic Documents
on behalf of the Owner Trustee.
"Unscheduled Principal Payments" means, for any Payment
Date, the aggregate amount of unscheduled principal payments
on the Receivables received during the related Collection
Period.
SECTION 1.02 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined herein have the meanings assigned to them in the
Indenture.
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(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto 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.
(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; and the term "including" shall mean
"including without limitation."
(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.
SECTION 1.03 Calculations. For all purposes of this
Agreement, interest in respect of the Class A-1 Notes and the
Class A-2 Notes shall be computed on the basis of a 360-day
year and the actual number of days in the related period of
accrual. Interest in respect of the Class A-1 Notes and the
Class A-2 Notes shall accrue from and including the Closing
Date or from and including the most recent Payment Date to
which interest has been paid to but excluding the current
Payment Date. Interest in respect of the Class A-3 Notes, the
Class A-4 Notes and the Class B Note shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Interest on the Class A-3 Notes, the Class A-4 Notes and the
Class B Note in respect of a Payment Date will accrue from and
including the 15th day of the month preceding such Payment
Date (or the Closing Date in the case of the first Payment
Date) to and including the 14th day of the month of such
Payment Date.
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables. In consideration
of the Issuer's delivery to or upon the order of the Seller of
$760,071,023 plus the issuance to the Seller of the Class B
Note and the Certificate, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Issuer,
without recourse (subject to the obligations herein):
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(a) all right, title and interest of the Seller in and
to the Receivables, and all moneys due thereon, on or after
the Cut-off Date;
(b) the interest of the Seller in the security
interests in the Financed Equipment granted by Obligors
pursuant to the Receivables and any other interest of the
Seller in the Financed Equipment;
(c) the interest of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed
Equipment or Obligors;
(d) all right, title and interest of the Seller in and
to the Purchase Agreement, including the right of the Seller
to cause JDCC to repurchase Receivables from the Seller under
certain circumstances; and
(e) the proceeds of any and all of the foregoing.
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties of Seller.
The Seller makes the following representations and warranties
as to the Receivables on which the Issuer is deemed to have
relied in acquiring the Receivables. 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 Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) 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 Issuer and that the
beneficial interest in and title to such 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
Issuer. Immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title
to each Receivable, free and clear of all Liens and rights of
others and, immediately upon the transfer thereof, the Issuer
shall have good and marketable title to each such Receivable,
free and clear of all Liens and rights of others; and the
transfer has been perfected under the UCC.
(b) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Issuer a
first perfected ownership interest in the Receivables, and to
give the Indenture Trustee a first perfected security interest
therein, shall have been made.
SECTION 3.02 Repurchase by Seller upon Breach. The
Seller, the Servicer, the Sub-Servicer or the Owner Trustee,
as the case may be, shall inform the other parties to the
Agreement and the Indenture Trustee and JDCC promptly, in
writing, upon the discovery of any
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breach of the Seller's representations and warranties made
pursuant to Section 3.01 or JDCC's representations and
warranties made pursuant to Section 3.02(b) of the Purchase
Agreement. Unless any such breach shall have been cured by
the last day of the second month following the month of the
discovery thereof by the Owner Trustee or receipt by the Owner
Trustee of written notice from the Seller, the Servicer or the
Sub-Servicer of such breach, the Seller shall be obligated,
and, if necessary, the Seller or the Owner Trustee shall
enforce the obligation of JDCC under the Purchase Agreement,
to repurchase any Receivable materially and adversely affected
by any such breach as of such last day (or, at the Seller's
option, the last day of the first month following the month of
the discovery). In consideration of the repurchase of the
Receivable, the Seller shall remit the Purchase Amount, in the
manner specified in Section 5.03; provided, however, that the
obligation of the Seller to repurchase any Receivable arising
solely as a result of a breach of JDCC's representations and
warranties pursuant to Section 3.02(b) of the Purchase
Agreement is subject to the receipt by the Seller of the
Purchase Amount from JDCC. Subject to the provisions of
Section 6.03, the sole remedy of the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders or the
Certificateholder with respect to a breach of representations
and warranties pursuant to Section 3.01 and the agreement
contained in this Section shall be to require the Seller to
repurchase Receivables pursuant to this Section, subject to
the conditions contained herein, or to enforce JDCC's
obligation to the Seller to repurchase such Receivables
pursuant to the Purchase Agreement. 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.
SECTION 3.03 Custody of Receivable Files. To assure
uniform quality in servicing the Receivables and to reduce
administrative costs, the Issuer hereby appoints the Servicer,
and the Servicer hereby accepts such appointment, to act as
the agent of the Issuer and the Indenture Trustee as custodian
of the following documents or instruments which are hereby
constructively delivered to the Indenture Trustee, as pledgee
of the Issuer with respect to each Receivable:
(a) the original executed copy of the Receivable;
(b) the original or a copy of the credit application
fully executed by the Obligor;
(c) the original certificate of title (or a secured
party copy thereof), the file stamped copy of the UCC
financing statement or such other documents that the Seller or
JDCC shall keep on file, in accordance with its customary
procedures, evidencing the security interest of Deere &
Company or an affiliate of Deere & Company in the Financed
Equipment; and
(d) any and all other documents that JDCC or the Seller
shall keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor or Financed
Equipment.
SECTION 3.04 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the
Receivable Files on behalf of the Issuer and maintain such
accurate and complete accounts, records and computer systems
pertaining to each Receivable File as shall enable the Issuer
to comply with this Agreement. In performing its
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duties as custodian the Servicer shall act with reasonable
care, using that degree of skill and attention that the
Servicer exercises with respect to the receivable files
relating to all comparable receivables that the Servicer
services for itself or others. The Servicer shall conduct, or
cause to be conducted, periodic audits of the Receivable Files
held by it under this Agreement and of the related accounts,
records and computer systems, in such a manner as shall enable
the Issuer or the Indenture Trustee to verify the accuracy of
the Servicer's record keeping. The Servicer shall promptly
report to the Issuer and the Indenture Trustee any failure on
its part to hold the Receivable Files and maintain its
accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or
any periodic review by the Issuer, the Owner Trustee or the
Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer
shall maintain each Receivable File at its office specified in
Schedule B to this Agreement or at such other office as shall
be specified to the Issuer and the Indenture Trustee by
written notice not later than 90 days after any change in
location. The Servicer shall make available to the Issuer and
the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors a list of locations of
the Receivable Files and the related accounts, records and
computer systems maintained by the Servicer at such times as
the Issuer or the Indenture Trustee shall instruct.
(c) Release of Documents. Upon instruction from the
Indenture Trustee, the Servicer shall release any Receivable
File to the Indenture Trustee, the Indenture Trustee's agent,
or the Indenture Trustee's designee, as the case may be, at
such place or places as the Indenture Trustee may designate,
as soon as practicable.
SECTION 3.05 Instructions; Authority to Act. The
Servicer shall be deemed to have received proper instructions
with respect to the Receivable Files upon its receipt of
written instructions signed by a Trust Officer of the
Indenture Trustee.
SECTION 3.06 Custodian's Indemnification. The Servicer
as custodian shall indemnify the Trust, the Owner Trustee and
the Indenture Trustee and each of their officers, directors
and agents for any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses of any kind
whatsoever that may be imposed on, incurred by or asserted
against the Trust, the Owner Trustee or the Indenture Trustee
or any of their officers, directors and agents as the result
of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the
Receivable Files; provided, however, that the Servicer shall
not be liable to the Trust or the Owner Trustee for any
portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Owner Trustee and
the Servicer shall not be liable to the Trust or the Indenture
Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Indenture
Trustee.
SECTION 3.07 Effective Period and Termination. The
Servicer's appointment as custodian shall become effective as
of the Cut-off Date and shall continue in full force and
effect until terminated pursuant to this Section. If JDCC
shall resign as Servicer in accordance with the provisions of
the Agreement or if all of the rights and obligations of any
Servicer shall have been terminated under Section 8.01, the
appointment of such Servicer as custodian shall be terminated
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by the Indenture Trustee or by the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes or,
with the consent of Holders of the Notes evidencing not less
than 25% of the Outstanding Amount of the Notes, by the Owner
Trustee or by the Certificateholder, in the same manner as the
Indenture Trustee or such Holders may terminate the rights and
obligations of the Servicer under Section 8.01. The Indenture
Trustee or, with the consent of the Indenture Trustee, the
Owner Trustee may terminate the Servicer's appointment as
custodian, with cause, at any time upon written notification
to the Servicer, and without cause upon 30 days' prior written
notification to the Servicer. As soon as practicable after
any termination of such appointment, the Servicer shall
deliver the Receivable Files to the Indenture Trustee or the
Indenture Trustee's agent at such place or places as the
Indenture Trustee may reasonably designate. The Servicer
shall pay the fees of any other Person acting as custodian of
the Receivables Files.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer. The Servicer, as agent
for the Issuer (to the extent provided herein), shall manage,
service, administer and make collections on the Receivables
(other than Purchased Receivables) with reasonable care, using
that degree of skill and attention that the Servicer exercises
with respect to all comparable equipment receivables that it
services for itself or others. The Servicer's duties shall
include calculating, billing, collection and posting of all
payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, reporting tax
information to Obligors, accounting for collections, and
furnishing monthly and annual statements to the Owner Trustee
and the Indenture Trustee with respect to distributions.
Subject to the provisions of Section 4.02, the Servicer shall
follow its customary standards, policies and procedures in
performing its duties as Servicer. Without limiting the
generality of the foregoing, the Servicer is authorized and
empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the
Certificateholder and the Noteholders or any of them, any and
all instruments of satisfaction or cancellation, or partial or
full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the
Financed Equipment securing such Receivables. If the Servicer
shall commence a legal proceeding to enforce a Receivable, the
Issuer (in the case of a Receivable other than a Purchased
Receivable) shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such
Receivable to the Servicer. If in any enforcement suit or
legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce such
Receivable, the Owner Trustee shall, at the Servicer's expense
and direction, take steps to enforce such Receivable,
including bringing suit in its name or the name of the Owner
Trustee, the Indenture Trustee, the Certificateholder or the
Noteholders. The Owner Trustee shall upon the written request
of the Servicer furnish the Servicer with any powers of
attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing
and administrative duties hereunder.
SECTION 4.02 Collection of Receivable Payments. The
Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Receivables
as and
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when the same shall become due and shall follow such
collection procedures as it follows with respect to all
comparable equipment receivables that it services for itself
or others. In connection therewith, the Servicer may grant
extensions, rebates or adjustments on a Receivable; provided,
however, that if the Servicer extends the date for final
payment by the Obligor of any Receivable beyond May 1, 2005,
it shall promptly purchase the Receivable from the Issuer in
accordance with the terms of Section 4.07. The Servicer may
in its discretion waive any additional interest above the
related APR due on late Scheduled Payments or any other fees
that may be collected in the ordinary course of servicing a
Receivable. The Servicer shall not agree to any alteration of
the interest rate on any Receivable or of the amount of any
Scheduled Payment on a Receivable. Notwithstanding anything
in this Agreement to the contrary, any Recoveries shall be
paid to the Seller and the related Liquidated Receivable shall
be assigned by the Trust to the Seller.
SECTION 4.03 Realization upon Receivables. On behalf of
the Issuer, the Servicer shall use its best efforts,
consistent with its customary servicing procedures, to
repossess or otherwise realize upon the Financed Equipment
securing any Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. The Servicer
shall follow such customary and usual practices and procedures
as it shall deem necessary or advisable in its servicing of
comparable equipment receivables, which may include selling
the Financed Equipment at public or private sale. The
foregoing shall be subject to the provision that, in any case
in which the Financed Equipment shall have suffered damage,
the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Equipment unless
it shall determine in its discretion that such repair and/or
repossession will increase the Liquidation Proceeds by an
amount greater than the amount of such expenses.
SECTION 4.04 Physical Damage Insurance. The Servicer
shall, in accordance with its customary servicing procedures,
require that each Obligor shall have obtained physical damage
insurance covering the Financed Equipment as of the execution
of the Receivable.
SECTION 4.05 Maintenance of Security Interests in
Financed Equipment. The Servicer shall, in accordance with
its customary servicing procedures, take such steps as are
necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Equipment.
The Servicer is hereby authorized to take such steps as are
necessary to re-perfect such security interest on behalf of
the Issuer and the Indenture Trustee in the event of the
relocation of a Financed Equipment or for any other reason.
SECTION 4.06 Covenants of Servicer. The Servicer shall
not release the Financed Equipment securing any Receivable
from the security interest granted by such Receivable in whole
or in part except in accordance with Section 4.03 above or in
the event of payment in full by the Obligor thereunder, nor
shall the Servicer impair the rights of the Issuer, the
Indenture Trustee, the Certificateholders or the Noteholders
in such Receivables, nor shall the Servicer increase the
number of scheduled payments due under a Receivable except in
accordance with the terms thereof or the terms of Section
4.02.
SECTION 4.07 Purchase by Servicer of Receivables upon
Breach. The Servicer (or the Sub-Servicer on behalf of the
Servicer) or the Owner Trustee shall inform the other party
and the Indenture Trustee, the Seller and JDCC promptly, in
writing, upon the discovery of any breach
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pursuant to Section 4.02, 4.05 or 4.06. Unless the breach
shall have been cured by the last day of the second month
following such discovery (or, at the Servicer's election, the
last day of the first following month), the Servicer shall
purchase any Receivable materially and adversely affected by
such breach. If the Servicer takes any action pursuant to
Section 4.02 that impairs the rights of the Issuer, the
Indenture Trustee, the Certificateholder or the Noteholders in
any Receivable or as otherwise provided in Section 4.02, the
Servicer shall purchase such Receivable. In consideration of
the purchase of any such Receivable pursuant to either of the
two preceding sentences, the Servicer shall remit the Purchase
Amount in the manner specified in Section 5.03. Subject to
Section 7.02, the sole remedy of the Issuer, the Owner
Trustee, the Indenture Trustee, the Certificateholders or the
Noteholders with respect to a breach pursuant to Section 4.02,
4.05 or 4.06 shall be to require the Servicer to purchase
Receivables pursuant to this Section. The Owner Trustee shall
have no duty to conduct any affirmative investigation as to
the occurrence of any condition requiring the purchase of any
Receivable pursuant to this Section.
SECTION 4.08 Servicing Fee. On each Determination Date,
the Servicer shall be entitled to receive the Servicing Fee in
respect of the immediately preceding Collection Period equal
to the product of (a) one-twelfth of the Servicing Fee Rate
and (b) the Pool Balance as of the first day of such preceding
Collection Period. The Servicer shall also be entitled to
that portion of interest due on a Receivable that is in excess
of interest at the related APR and that is due because of a
late Scheduled Payment, and other administrative fees or
similar charges allowed by applicable law or the Receivable
with respect to Receivables, collected (from whatever source)
on the Receivables.
SECTION 4.09 Servicer's Certificate. On each
Determination Date, the Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and the Seller, with a copy to
the Rating Agencies, a Servicer's Certificate containing all
information necessary to make the distributions pursuant to
Sections 5.04 and 5.06 for the Collection Period preceding the
date of such Servicer's Certificate. Neither the Owner
Trustee nor the Indenture Trustee shall be required to
determine, confirm or recalculate the information contained in
the Servicer's Certificate. Receivables to be purchased by
the Servicer or to be repurchased by the Seller shall be
identified by the Servicer by account number with respect to
such Receivable (as specified in Schedule A).
SECTION 4.10 Annual Statement as to Compliance; Notice of
Default.
(a) The Servicer shall deliver to the Owner Trustee and
the Indenture Trustee, on or before February 28 of each year
beginning February 28, 2000, an Officers' Certificate stating
that (i) a review of the activities of the Servicer during the
12-month period ending on October 31 of the preceding year
(or, in the case of October 31, 1999, the period from the
Closing Date to October 31, 1999) and of its performance under
this Agreement has been made under such officers' supervision
and (ii) to the best of such officers' knowledge, based on
such review, the Servicer has fulfilled in all material
respects all its obligations under this Agreement throughout
such period or, if there has been a default in the fulfillment
of any such obligation in any material respect, specifying
each such default known to such officers and the nature and
status thereof. The Indenture Trustee shall send a copy of
such certificate and the report referred to in Section 4.11 to
the Rating Agencies. A copy of such certificate and the
report referred to in Section 4.11
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may be obtained by the Certificateholder by a request in
writing to the Owner Trustee at its address in Section 10.03.
(b) The Servicer shall deliver to the Owner Trustee,
the Indenture Trustee and the Rating Agencies, promptly after
having obtained knowledge thereof, but in no event later than
five (5) Business Days thereafter, written notice in an
Officers' Certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer
Default under Section 8.01(a) or (b).
SECTION 4.11 Annual Independent Certified Public
Accountants' Report. The Servicer shall cause a firm of
independent certified public accountants, which may also
render other services to the Servicer, the Seller or JDCC, to
deliver to the Owner Trustee and the Indenture Trustee on or
before February 28 of each year beginning February 28, 2000, a
report addressed to the Board of Directors of the Servicer,
the Owner Trustee and the Indenture Trustee, to the effect
that such firm has examined the financial statements of JDCC
and issued its report thereon and that such examination (a)
was made in accordance with generally accepted auditing
standards and accordingly included such tests of the
accounting records and such other auditing procedures as such
firm considered necessary in the circumstances; (b) included
tests relating to equipment loans serviced for others in
accordance with the requirements of the Uniform Single
Attestation Program for Mortgage Bankers (the "Program"), to
the extent the procedures in such program are applicable to
the servicing obligations set forth in this Agreement; and (c)
except as described in the report, disclosed no exceptions or
errors in the records relating to equipment loans (including
the Receivables) serviced for others during the 12-month
period (or, in the case of the report due on or before
February 28, 2000, the period from the Closing Date to October
31, 1999) that, in the firm's opinion, such Program requires
such firm to report.
Such report will also indicate that the firm is
independent of the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified
Public Accountants.
SECTION 4.12 Access to Certain Documentation and
Information Regarding Receivables. The Servicer shall provide
to the Certificateholder and Noteholders access to the
Receivable Files in such cases where the Certificateholder or
Noteholders shall be required by applicable statutes or
regulations to review such documentation. Access shall be
afforded without charge, but only upon reasonable request and
during the normal business hours at the respective offices of
the Servicer. Nothing in this Section shall affect the
obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors
and the failure of the Servicer to provide access to
information as a result of such obligation shall not
constitute a breach of this Section.
SECTION 4.13 Servicer Expenses. The Servicer shall be
required to pay all expenses incurred by it in connection with
its activities hereunder, including fees and disbursements of
independent accountants, fees and disbursements incurred in
connection with collection and enforcement of Receivables
(other than amounts incurred in connection with the
liquidation of a Receivable which amounts shall be netted
against the Liquidation Proceeds, if any), taxes
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imposed on the Servicer and expenses incurred in connection
with distributions and reports to Certificateholder and
Noteholders.
SECTION 4.14 Appointment of Sub-Servicer. The Servicer
hereby appoints Deere Credit Services, Inc. as Sub-Servicer
and may at any time appoint a successor Sub-Servicer to
perform all or any portion of its obligations as Servicer
hereunder; provided, however, that the Rating Agency Condition
shall have been satisfied in connection with the appointment
of a successor Sub-Servicer; provided further that the
Servicer shall remain obligated and be liable to the Issuer,
the Owner Trustee, the Indenture Trustee, the
Certificateholder and the Noteholders for the servicing and
administering of the Receivables in accordance with the
provisions hereof without diminution of such obligation and
liability by virtue of the appointment of such Sub-Servicer
and to the same extent and under the same terms and conditions
as if the Servicer alone were servicing and administering the
Receivables. The fees and expenses of the Sub-Servicer shall
be as agreed between the Servicer and its Sub-Servicer from
time to time and none of the Issuer, the Owner Trustee, the
Indenture Trustee, the Certificateholder or the Noteholders
shall have any responsibility therefor.
ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.01 Establishment of Trust Accounts.
(a) (i) The Servicer, for the benefit of the
Noteholders and the Certificateholder, shall establish and
maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Collection Account"), bearing a
designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders and the
Certificateholder.
(ii) The Servicer, for the benefit of the
Noteholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Note
Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the
benefit of the Noteholders.
(iii) The Servicer, for the benefit of the
Noteholders and the Certificateholder, shall establish and
maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are held
for the benefit of the Noteholders and the Certificateholder.
(b) Funds on deposit in the Collection Account, the
Note Distribution Account and the Reserve Account
(collectively the "Trust Accounts") shall be invested by the
Indenture Trustee pursuant to the Servicer's written
instruction in Eligible Investments selected by the Servicer;
provided, however, it is understood and agreed that the
Indenture Trustee shall not be liable for any loss arising
from such investment in Eligible Investments; provided further
none of the funds deposited in the Trust Accounts shall be
invested in an Eligible Investment or Eligible Investments
issued by the Servicer or the Seller for a period of 30 days
following the Closing Date. All such Eligible Investments
shall be held by the Indenture Trustee for the benefit of the
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Noteholders and the Certificateholder or the Noteholders, as
applicable; provided, however, that on each Payment Date all
interest and other investment income (net of losses and
investment expenses) on funds on deposit in the Trust Accounts
shall be deposited into the Collection Account and shall be
deemed to constitute a portion of the Total Distribution
Amount. Other than as permitted by the Rating Agencies, funds
on deposit in the Trust Accounts shall be invested in Eligible
Investments that will mature so that such funds will be
available at the close of business on the Transfer Date
preceding the following Payment Date or, in the case of the
Note Distribution Account and the Reserve Account, the
following Payment Date. Funds deposited in a Trust Account on
a Transfer Date which immediately precedes a Payment Date are
not required to be invested overnight.
If the unenhanced commercial paper of JDCC is not an
Eligible Investment for one or more Rating Agencies (each a
"Nonapproving Rating Agency") but the commercial paper of JDCC
enhanced by a put agreement is an Eligible Investment pursuant
to clause (g) of the term "Eligible Investment" for each
Nonapproving Rating Agency and the Servicer instructs the
Indenture Trustee to purchase such commercial paper and put
agreement in accordance with the preceding paragraph, then the
Indenture Trustee will purchase such commercial paper (which
shall have a maturity of 30 days or such longer period that is
acceptable to each Nonapproving Rating Agency) so that such
commercial paper will mature on or prior to the Business Day
immediately preceding the next succeeding Payment Date and
such put agreement shall come into effect no later than the
time of purchase of such commercial paper and shall expire no
earlier than the close of business on the second Business Day
next succeeding such Payment Date. Such put agreement shall
be in a form acceptable to each Nonapproving Rating Agency.
The Indenture Trustee shall exercise its right to put the JDCC
commercial paper to the obligee under the put agreement upon
the maturity date of such commercial paper if payment in full
for such commercial paper is not made on such maturity date.
Notwithstanding anything in this paragraph to the contrary,
the Indenture Trustee shall not purchase the commercial paper
of JDCC unless the Servicer, in directing the Indenture
Trustee to purchase such commercial paper, delivers to it an
Officers' Certificate of the Servicer to the effect that the
yield on such commercial paper (after giving effect to the
cost of the put agreement) is at least equal to the yield on
U.S. Treasury securities of comparable maturity.
(c) (i) The Indenture Trustee shall possess all
right, title and interest in all funds on deposit from time to
time in the Trust Accounts and in all proceeds thereof
(including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust
Estate. The Trust Accounts shall be under the sole dominion
and control of the Indenture Trustee for the benefit of the
Noteholders and the Certificateholder or the Noteholders, as
the case may be. If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, the Indenture
Trustee (or the Servicer on its behalf) shall within 10
Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent)
establish a new Trust Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new
Trust Account. So long as The Bank of New York is an Eligible
Institution, any Trust Account shall be maintained with it in
an Eligible Deposit Account.
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(ii) With respect to the Trust Account Property,
the Indenture Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in the Eligible Deposit
Accounts; and each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the Indenture
Trustee, and the Indenture Trustee shall have sole signature
authority with respect thereto;
(B) any Trust Account Property that is of the
type described in paragraph (a) or (b) of the definition of
"Delivery" shall be delivered to the Indenture Trustee in
accordance with paragraph (a) or (b), as applicable, of the
definition of "Delivery, and shall be held as described in
such paragraph;
(C) any Trust Account Property that is a book-
entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations shall be delivered
in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition, through continued book-entry
registration of such Trust Account Property as described in
such paragraph; and
(D) any Trust Account Property that is an
"uncertificated security" under Article VIII of the UCC and
that is not governed by clause (C) above shall be delivered to
the Indenture Trustee in accordance with paragraph (d) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition, through
continued registration of the Indenture Trustee's (or its
nominee's) ownership of such security.
(iii) The Servicer shall have the power, revocable
by the Indenture Trustee or by the Owner Trustee with the
consent of the Indenture Trustee, to instruct the Indenture
Trustee to make withdrawals and payments from the Trust
Accounts for the purpose of permitting the Servicer or the
Owner Trustee to carry out its respective duties hereunder or
permitting the Indenture Trustee to carry out its duties under
the Indenture.
SECTION 5.02 Collections. The Servicer shall remit to
the Collection Account all payments by or on behalf of the
Obligors with respect to the Receivables (other than Purchased
Receivables) and all Liquidation Proceeds (exclusive of
Recoveries, which shall be applied in accordance with Section
4.02), within two Business Days of receipt thereof.
Notwithstanding the foregoing, if (i) JDCC is the Servicer,
(ii) a Servicer Default shall not have occurred and be
continuing and (iii) JDCC's unsecured, non-guaranteed short-
term debt is assigned a rating of at least A-1 by Standard &
Poor's, P-1 by Moody's and F-1 by Fitch, the Servicer shall
remit such collections (as collected during each Fiscal Month)
to the Collection Account not less than two Business Days
prior to the 15th day of the calendar month following such
Fiscal Month (or, if such Fiscal Month ends in the early part
of a calendar month, then the 15th day of such calendar month
in which such Fiscal Month ends). For purposes of this
Article V the phrase "payments by or on behalf of Obligors"
shall mean payments made with respect to the Receivables by
persons other than the Servicer or JDCC.
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SECTION 5.03 Additional Deposits. The Servicer and the
Seller shall deposit or cause to be deposited in the
Collection Account the aggregate Purchase Amount with respect
to Purchased Receivables and the Servicer shall deposit
therein all amounts to be paid under Section 9.01(a). The
Servicer will deposit the aggregate Purchase Amount with
respect to Purchased Receivables when such obligations are
due, unless the Servicer shall not be required to make
deposits within two Business Days of the receipt of
collections from Obligors pursuant to Section 5.02, in which
case deposits of Purchased Amounts shall be made on the
Transfer Date.
SECTION 5.04 Distributions.
(a) On each Determination Date, the Servicer shall
calculate the amounts to be deposited in the Note Distribution
Account and the Certificate Distribution Account.
(b) On the second Business Day prior to each Payment
Date, the Servicer shall instruct the Indenture Trustee in
writing in substantially the form of Schedule G hereto (based
on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to
Section 4.09) to make deposits and distributions to the
Servicer or the Administrator or distribute to the applicable
Trust Account or Certificate Distribution Account by 12:00
noon (New York time) in the case of the Trust Accounts and
11:00 A.M. (New York time) in the case of the Certificate
Distribution Account, in each case on such Payment Date.
Distributions of the Total Distribution Amount shall be made
by the Indenture Trustee in the following order of priority:
(i) to the Servicer, from the Total Distribution
Amount, the Servicing Fee and all unpaid Servicing Fees from
prior Collection Periods;
(ii) to the Administrator under the Administration
Agreement, from the Total Distribution Amount remaining after
the application of clause (i), the Administration Fee and all
unpaid Administration Fees from prior Collection Periods;
(iii) to the Note Distribution Account, from the
Total Distribution Amount remaining after the application of
clauses (i) and (ii), the accrued and unpaid interest on the
Notes for such Payment Date;
(iv) to the Note Distribution Account, from the
Total Distribution Amount remaining after the application of
clauses (i), (ii) and (iii), the Note Principal Distributable
Amount;
(v) to the Reserve Account, from the Total
Distribution Amount remaining after the application of clauses
(i), (ii), (iii) and (iv), the amount, if any, necessary to
increase the amounts on deposit in the Reserve Account to the
Specified Reserve Account Balance;
(vi) to the Certificate Distribution Account, from
the Total Distribution Amount remaining after the application
of clauses (i), (ii), (iii), (iv) and (v), the Certificate
Monthly Principal Distributable Amount; and
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(vii) to the Reserve Account, the Total
Distribution Amount remaining after the application of clauses
(i), (ii), (iii), (iv), (v) and (vi).
SECTION 5.05 Reserve Account.
(a) On the Closing Date, the Seller shall deposit the
Reserve Account Initial Deposit into the Reserve Account. The
Servicer shall determine the Specified Reserve Account Balance
for each Payment Date.
(b) (i) If the amount on deposit in the Reserve
Account on each Payment Date (after giving effect to all
deposits or withdrawals therefrom on such Payment Date
pursuant to Section 5.04 and Section 5.05(c)) is greater than
the Specified Reserve Account Balance for such Payment Date,
the Servicer shall instruct the Indenture Trustee to
distribute such excess in the Reserve Account to the Seller.
(ii) On the date on which all interest on and
principal of the Notes have been paid in full, the Servicer
shall instruct the Indenture Trustee to distribute the Reserve
Account balance to the Seller.
(iii) Amounts properly distributed to the Seller
pursuant to this Section 5.05(b) shall be deemed released from
the Trust and the security interest therein granted to the
Indenture Trustee, and the Seller shall in no event thereafter
be required to refund any such distributed amounts.
(c) In the event that the Noteholders' Distributable
Amount for a Payment Date exceeds the amount deposited into
the Note Distribution Account pursuant to Section 5.04(b)(iii)
and (iv) on such Payment Date, the Servicer shall instruct the
Indenture Trustee to withdraw from the Reserve Account on such
Payment Date, to the extent of funds available therein, an
amount equal to such excess and deposit such amount into the
Note Distribution Account.
SECTION 5.06 Statements to the Certificateholder and
Noteholders.
(a) On the second Business Day preceding each Payment
Date, the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies) and to the Owner Trustee
for the Owner Trustee to forward to the Certificateholder of
record a statement substantially in the form of Schedule E
setting forth at least the following information as to the
Notes and the Certificate to the extent applicable:
(i) the amount of such distribution allocable to
principal;
(ii) the amount of such distribution allocable to
interest;
(iii) the Pool Balance and the Note Value as of the
close of business on the last day of the preceding Collection
Period;
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(iv) (A) the outstanding principal balance of (1)
the Class A-1 Notes, (2) the Class A-2 Notes, (3) the Class A-
3 Notes, (4) the Class A-4 Notes and (5) the Class B Note and
(B) the Certificate Balance, in each case after giving effect
to payments allocated to principal reported under (i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period;
(vi) the amount of the Administration Fee paid to
the Administrator with respect to such Collection Period;
(vii) the aggregate amount of the Purchase Amounts
for Purchased Receivables with respect to the related
Collection Period;
(viii) the balance of the Reserve Account on such
Payment Date, after giving effect to distributions made on
such Payment Date, and the Specified Reserve Account Balance
for such Payment Date; and
(ix) the amount of any payments in respect of the
Receivables that are more than 60 days past due.
Each amount set forth pursuant to paragraph (i), (ii)
or (iv) above shall be expressed as a dollar amount per $1,000
of original principal balance of a Certificate or Note, as
applicable.
(b) On the second Business Day preceding each Payment
Date, the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies) for the Indenture Trustee
to forward to each Noteholder of record, a statement
substantially in the form of Schedule F setting forth at least
the following information as to the Notes to the extent
applicable with respect to such Payment Date or the related
Collection Period:
(i) the amount of such distribution allocable to
principal;
(ii) the amount of such distribution allocable to
interest;
(iii) the Pool Balance and the Note Value as of the
close of business on the last day of the preceding Collection
Period;
(iv) (A) the outstanding principal balance of (1)
the Class A-1 Notes, (2) the Class A-2 Notes, (3) the Class A-
3 Notes, (4) the Class A-4 Notes and (5) the Class B Note and
(B) the Certificate Balance, in each case after giving effect
to payments allocated to principal reported under (i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to such Collection Period;
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(vi) the amount of the Administration Fee paid to
the Administrator with respect to such Collection Period;
(vii) the aggregate amount of Purchase Amounts for
Purchased Receivables with respect to such Collection Period;
(viii) the balance of the Reserve Account on such
Payment Date, after giving effect to the distributions made on
such Payment Date, and the Specified Reserve Account Balance
for such Payment Date; and
(ix) the amount of any payments in respect of the
Receivables that are more than 60 days past due.
Each amount set forth pursuant to subclause (i), (ii)
or (iv) above shall be expressed as a dollar amount per $1,000
of original principal balance of a Note.
Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term
of the Indenture, the Indenture Trustee shall mail to each
Person who at any time during such calendar year shall have
been a Noteholder and received any payment thereon, a
statement containing the amounts described in (i) and (ii)
(other than information relating to the Note Interest Rates)
above and any other information required by applicable tax
laws, for the purposes of such Noteholder's preparation of
Federal income tax returns.
The Indenture Trustee shall only be required to provide to
the Noteholders the information furnished to it by the
Servicer.
SECTION 5.07 Net Deposits. As an administrative
convenience, unless the Servicer is required to remit
collections within two Business Days of their receipt, the
Servicer will be permitted to make the deposit of collections
on the Receivables and Purchase Amounts for or with respect to
the Collection Period net of distributions to be made to the
Servicer with respect to the Collection Period. The Servicer,
however, will account to the Owner Trustee, the Indenture
Trustee, the Noteholders and the Certificateholder as if all
deposits, distributions and transfers were made individually.
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller. The Seller makes
the following representations on which the Issuer is deemed to
have relied in acquiring the Receivables. The representations
speak as of the execution and delivery of this Agreement and
shall survive the sale of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
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(a) Organization and Good Standing. The Seller is duly
organized and validly existing as a corporation in good
standing under the laws of the State of Nevada, with the power
and authority to own its properties and to conduct its
business as such properties are currently owned and such
business is presently conducted, and had at all relevant
times, and has, the power, authority and legal right to
acquire and own the Receivables.
(b) 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 failure to so qualify or to obtain
such license or approval would render any Receivable
unenforceable that would otherwise be enforceable by the
Seller, the Sub-Servicer or the Owner Trustee.
(c) 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 to be sold and assigned to and
deposited with the Issuer and the Seller and shall have duly
authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Seller enforceable
in accordance with its terms except that such enforcement may
be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and the remedy of
specific performance and injunctive relief may be subject to
certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the articles
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 shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Seller's knowledge, any order, rule
or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Seller or its properties.
(f) No Proceedings. To the Seller's best knowledge,
there are no proceedings or investigations pending, or
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Seller or its properties: (i) asserting
the invalidity of this Agreement, the Indenture or any of the
other Basic Documents, the Notes or the Certificate, (ii)
seeking to prevent the issuance of the Notes or the
Certificate or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking 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, the Indenture,
any of the other Basic Documents, the Notes or
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the Certificate or (iv) which involve the Seller and which
might adversely affect the Federal or state income tax
attributes of the Notes or the Certificate.
SECTION 6.02 Corporate Existence.
(a) During the term of this Agreement, the Seller will
keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction
of its incorporation 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 transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall
observe the applicable legal requirements for the recognition
of the Seller as a legal entity separate and apart from its
Affiliates, including as follows:
(i) the Seller shall maintain corporate records and
books of account separate from those of its Affiliates;
(ii) except as otherwise provided in this
Agreement, the Seller shall not commingle its assets and funds
with those of its Affiliates;
(iii) the Seller shall hold such appropriate
meetings of its Board of Directors as are necessary to
authorize all the Seller's corporate actions required by law
to be authorized by the Board of Directors, shall keep minutes
of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities (and any
successor Seller not a corporation shall observe similar
procedures in accordance with its governing documents and
applicable law);
(iv) the Seller shall at all times hold itself out
to the public under the Seller's own name as a legal entity
separate and distinct from its Affiliates; and
(v) all transactions and dealings between the
Seller and its Affiliates will be conducted on an arm's-length
basis.
SECTION 6.03 Liability of Seller; Indemnities. The
Seller shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the
Seller under the Agreement.
(a) The Seller shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee and the Indenture
Trustee and their officers, directors and agents from and
against any taxes that may at any time be asserted against the
Issuer, the Owner Trustee or the Indenture Trustee or their
officers, directors, and agents with respect to the sale of
the Receivables to the Issuer or the issuance and original
sale of the Certificate and the Notes, including any sales,
gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the
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case of the Issuer, not including any taxes asserted with
respect to ownership of the Receivables or Federal or other
income taxes arising out of the transactions contemplated by
this Agreement) and costs and expenses in defending against
the same.
(b) The Seller shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee and the Indenture
Trustee and their officers, directors, and agents from and
against any loss, liability or expense incurred by reason of
(i) the Seller's willful misfeasance, bad faith or negligence
in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties
under this Agreement and (ii) the Seller's or the Issuer's
violation of Federal or state securities laws in connection
with the offering and sale of the Notes and the Certificate.
(c) The Seller shall pay any and all property taxes
(including taxes on intangibles), excise taxes, sales taxes
and similar taxes levied or assessed upon all or any part of
the Trust Estate including, without limitation, the
Receivables.
Indemnification under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture
Trustee and the termination of this Agreement and shall
include reasonable fees and expenses of counsel and expenses
of litigation. If the Seller shall have made any indemnity
payments pursuant to this Section and the Person to or on
behalf of whom such payments are made thereafter shall collect
any of such amounts from others, such Person shall promptly
repay such amounts to the Seller, without interest.
SECTION 6.04 Merger or Consolidation of, or Assumption of
the Obligations of, Seller. Any Person (a) into which the
Seller may be merged or consolidated, (b) which may result
from any merger or consolidation to which the Seller shall be
a party or (c) which may succeed to the properties and assets
of the Seller substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement,
shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any
of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.01 shall
have been breached and no Servicer Default, and no event that,
after notice or lapse of time, or both, would become a
Servicer Default shall have occurred and be continuing, (ii)
the Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this
Section and that all conditions precedent, if any, provided
for in this Agreement relating to such transaction have been
complied with, (iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction and (iv) the
Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements
and continuation statements and amendments thereto have been
executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and Indenture
Trustee, respectively, in the Receivables and reciting the
details of such filings, or (B) stating that, in the opinion
of such counsel, no such action shall be necessary to preserve
and protect such interests. Notwithstanding anything herein
to the contrary, the execution of the foregoing
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agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) above shall be conditions to the consummation
of the transactions referred to in clause (a), (b) or (c)
above.
SECTION 6.05 Limitation on Liability of Seller and
Others. The Seller and any director or officer or employee or
agent of the Seller may rely in good faith on the advice of
counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any
obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 6.06 Seller May Own the Certificate or Notes.
The Seller and any Affiliate thereof may in its individual or
any other capacity become the owner or pledgee of the
Certificate or Notes with the same rights as it would have if
it were not the Seller or an Affiliate thereof, except as
expressly provided herein or in any Basic Document; provided,
however, that the Seller shall retain and not transfer the
Certificate and the Class B Note.
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer. The Servicer
makes the following representations on which the Issuer is
deemed to have relied in acquiring the Receivables. The
representations speak as of the execution and delivery of the
Agreement (or as of the date a Person (other than the
Indenture Trustee) becomes Servicer pursuant to Sections 7.03
and 8.02, in the case of a successor to the Servicer) and
shall survive the sale of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Servicer is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, and has the corporate 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, own, sell and
service the Receivables and to hold the Receivable Files as
custodian.
(b) Power and Authority. The Servicer 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 have been duly authorized by the
Servicer by all necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms except that such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and the remedy of specific performance and injunctive relief
may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor
may be brought.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof shall not conflict with, result in any breach of
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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 Servicer, or any indenture,
agreement or other instrument to which the Servicer is a party
or by which it shall be 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 this Agreement); nor violate any law or, to the
best of the Servicer's knowledge, any order, rule or
regulation applicable to the Servicer of any court or of any
Federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Servicer or its properties.
(e) No Proceedings. To the Servicer's best knowledge,
there are no proceedings or investigations pending, or
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties: (i)
asserting the invalidity of this Agreement, the Indenture, any
of the other Basic Documents, the Notes or the Certificate,
(ii) seeking to prevent the issuance of the Notes or the
Certificate or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking any determination or
ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture,
any of the other Basic Documents, the Notes or the Certificate
or (iv) relating to the Servicer and which might adversely
affect the Federal or state income tax attributes of the Notes
or the Certificate.
(f) No Insolvent Obligors. As of the Cut-off Date, no
Obligor on a Receivable is shown on the Receivable Files as
the subject of a bankruptcy proceeding.
SECTION 7.02 Indemnities of Servicer. The Servicer shall
be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer under this
Agreement.
(a) The Servicer shall defend, indemnify and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee,
the Noteholders, the Certificateholder and the Seller and any
of the officers, directors and agents of the Issuer, the Owner
Trustee, the Indenture Trustee and the Seller from and against
any and all costs, expenses, losses, damages, claims and
liabilities, arising out of or resulting from the use,
ownership or operation by the Servicer or any Affiliate
thereof of any Financed Equipment.
(b) The Servicer shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee,
and the Seller and their respective officers, directors and
agents from and against any taxes that may at any time be
asserted against any such Person with respect to the
transactions contemplated herein, including any sales, gross
receipts, general corporation, tangible personal property,
privilege or license taxes (but, in the case of the Issuer,
not including any taxes asserted with respect to, and as of
the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Certificate and the Notes,
or asserted with respect to ownership of the Receivables, or
Federal or other income taxes arising out of distributions on
the Certificate or the Notes) and costs and expenses in
defending against the same.
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(c) The Servicer shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee,
the Seller, the Certificateholder and the Noteholders and any
of the officers, directors and agents of the Issuer, the Owner
Trustee, the Indenture Trustee and the Seller from and against
any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon
any such Person through, the negligence, willful misfeasance
or bad faith of the Servicer in the performance of its duties
under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement or on account of
the failure of the Servicer to be qualified to do business as
a foreign corporation or to have obtained a license or
approval in any jurisdiction.
(d) The Servicer shall indemnify, defend and hold
harmless the Owner Trustee and the Indenture Trustee and their
respective officers, directors and agents from and against all
costs, expenses, losses, claims, damages and liabilities
arising out of or incurred in connection with the acceptance
or performance of the trusts and duties herein and in the
Trust Agreement contained, in the case of the Owner Trustee,
and in the Indenture contained, in the case of the Indenture
Trustee, except to the extent that such cost, expense, loss,
claim, damage or liability: (i) shall be due to the willful
misfeasance, bad faith or negligence (except for errors in
judgment) of the Owner Trustee or the Indenture Trustee as
applicable; or (ii) shall arise from the breach by the Owner
Trustee of any of its representations or warranties set forth
in Section 7.03 of the Trust Agreement.
(e) To the extent not indemnified by the Seller under
Section 6.03, the Servicer shall pay any and all taxes levied
or assessed upon all or any part of the Owner Trust Estate,
other than any taxes asserted with respect to, and as of the
date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Certificate and the Notes,
or Federal or other income taxes imposed on the Issuer because
of its classification or reclassification for tax purposes, or
Federal or other income taxes arising out of distributions on
the Certificate or the Notes.
(f) The Servicer shall pay the Indenture Trustee from
time to time reasonable compensation for all services rendered
by the Indenture Trustee under the Indenture (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust).
(g) The Servicer shall, except as otherwise expressly
provided in the Indenture, reimburse the Indenture Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including,
but not limited to, the reasonable compensation, expenses and
disbursements of its agents and either in-house counsel or
outside counsel, but not both) except any such expense,
disbursement or advance as may be attributable to its
negligence or bad faith.
For purposes of this Section 7.02, in the event of the
termination of the rights and obligations of JDCC (or any
successor thereto pursuant to Section 7.03) as Servicer
pursuant to Section 8.01, or a resignation by such Servicer
pursuant to this Agreement, such Servicer shall be deemed to
be the Servicer pending appointment of a successor Servicer
(other than the Indenture Trustee) pursuant to Section 8.02.
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Indemnification under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture
Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity
payments pursuant to this Section and the Person to or on
behalf of whom such payments are made thereafter collects any
of such amounts from others, such Person shall promptly repay
such amounts to the Servicer, without interest.
SECTION 7.03 Merger or Consolidation of, or Assumption of
the Obligations of, Servicer. Any Person (a) into which the
Servicer may be merged or consolidated, (b) which may result
from any merger or consolidation to which the Servicer shall
be a party, (c) which may succeed to the properties and assets
of the Servicer substantially as a whole, or (d) with respect
to the Servicer's obligations hereunder, which is a
corporation 50% or more of the voting stock of which is owned,
directly or indirectly, by Deere, which Person executed an
agreement of assumption to perform every obligation of the
Servicer hereunder, shall be the successor to the Servicer
under this Agreement without further act on the part of any of
the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no
Servicer Default, and no event which, after notice or lapse of
time, or both, would become a Servicer Default shall have
occurred and be continuing, (ii) the Servicer shall have
delivered to the Owner Trustee and the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all
conditions precedent provided for in this Agreement relating
to such transaction have been complied with, (iii) the Rating
Agency Condition shall have been satisfied with respect to
such transaction and (iv) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements
and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the
Owner Trustee and the Indenture Trustee, respectively, in the
Receivables and reciting the details of such filings or (B)
stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests.
Notwithstanding anything herein to the contrary, the execution
of the foregoing agreement of assumption and compliance with
clauses (i), (ii), (iii) and (iv) above shall be conditions to
the consummation of the transactions referred to in clause
(a), (b), (c) or (d) above.
SECTION 7.04 Limitation on Liability of Servicer and
Others. Neither the Servicer nor the Sub-Servicer nor any of
the directors or officers or employees or agents of the
Servicer or the Sub-Servicer, as the case may be, shall be
under any liability to the Issuer, the Noteholders or the
Certificateholder, except as provided under this Agreement,
for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the
Servicer, the Sub-Servicer or any such person against any
liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and
duties under this Agreement. The Servicer, the Sub-Servicer
and any director or officer or employee or agent of the
Servicer or the Sub-Servicer, as the case may be, may rely in
good faith on any document of any kind prima facie properly
executed and submitted by any person respecting any matters
arising under this Agreement.
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Except as provided in this Agreement, neither the Servicer
nor the Sub-Servicer shall be under any obligation to appear
in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may
involve it in any expense or liability; provided, however,
that the Servicer or the Sub-Servicer may undertake any
reasonable action that it may deem necessary or desirable in
respect of this Agreement and the Basic Documents and the
rights and duties of the parties to this Agreement and the
Basic Documents and the interests of the Certificateholder
under this Agreement and the Noteholders under the Indenture.
SECTION 7.05 JDCC Not to Resign as Servicer. Subject to
the provisions of Section 7.03, JDCC shall not resign from the
obligations and duties hereby imposed on it as Servicer under
this Agreement except upon determination that the performance
of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such
determination permitting the resignation of JDCC shall be
communicated to the Owner Trustee and the Indenture Trustee at
the earliest practicable time (and, if such communication is
not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be
evidenced by an Opinion of Counsel to such effect delivered to
the Owner Trustee and the Indenture Trustee concurrently with
or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a successor
Servicer shall have assumed the responsibilities and
obligations of JDCC in accordance with Section 8.02.
SECTION 7.06 Servicer to Act as Administrator. In the
event of the resignation or removal of the Administrator and
the failure of a successor Administrator to have been
appointed and to have accepted such appointment as successor
Administrator, the Servicer shall become the successor
Administrator and shall be bound by the terms of the
Administration Agreement.
ARTICLE VIII
Default
SECTION 8.01 Servicer Default. If any one of the
following events (a "Servicer Default") shall occur and be
continuing:
(a) any failure by the Servicer to deliver to the
Indenture Trustee for deposit in any of the Trust Accounts or
the Certificate Distribution Account any required payment or
to direct the Indenture Trustee to make any required
distributions therefrom that shall continue unremedied for a
period of three Business Days after written notice of such
failure is received by the Servicer from the Owner Trustee or
the Indenture Trustee or after discovery of such failure by an
officer of the Servicer; or
(b) failure on the part of the Servicer or the Seller,
as the case may be, duly to observe or to perform in any
material respect any other covenants or agreements of the
Servicer or the Seller (as the case may be) set forth in this
Agreement or any other Basic Document, which failure shall (i)
materially and adversely affect the rights of
Certificateholder or Noteholders and (ii) continues unremedied
for a period of 60 days after the date on which written
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notice of such failure, requiring the same to be remedied,
shall have been given (A) to the Servicer or the Seller (as
the case may be) by the Owner Trustee or the Indenture Trustee
or (B) to the Servicer or the Seller (as the case may be), and
to the Owner Trustee and the Indenture Trustee by the Holders
of Notes evidencing not less than 25% of the Outstanding
Amount of the Notes or the Certificateholder (as defined in
the Trust Agreement); or
(c) an Insolvency Event occurs with respect to the
Servicer;
then, and in each and every case, so long as the Servicer
Default shall not have been remedied, either the Indenture
Trustee, or the Holders of Notes evidencing not less than 25%
of the Outstanding Amount of the Notes, by notice then given
in writing to the Servicer (and to the Indenture Trustee and
the Owner Trustee if given by the Noteholders) may terminate
all the rights and obligations (other than the obligations set
forth in Section 7.02 hereof) of the Servicer under this
Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Notes, the
Certificate or the Receivables or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee
or such successor Servicer as may be appointed under Section
8.02; and, without limitation, the Indenture Trustee and the
Owner Trustee are hereby authorized and empowered to execute
and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice
of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or
otherwise. The predecessor Servicer shall cooperate with the
successor Servicer, the Indenture Trustee and the Owner
Trustee in effecting the termination of the responsibilities
and rights of the predecessor Servicer under this Agreement,
including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the
time be held by the predecessor Servicer for deposit, or shall
thereafter be received by it with respect to a Receivable.
All reasonable costs and expenses (including reasonable
attorneys' fees) incurred in connection with transferring the
Receivable Files to the successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to
this Section shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a
Servicer Default, the Owner Trustee shall give notice thereof
to the Rating Agencies.
SECTION 8.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of
termination, pursuant to Section 8.01 or the Servicer's
resignation in accordance with the terms of this Agreement,
the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement, in the case of
termination, only until the date specified in such termination
notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of
resignation, until the earlier of (x) the date 45 days from
the delivery to the Owner Trustee and the Indenture Trustee of
written notice of such resignation (or written confirmation of
such notice) in accordance with the terms of this Agreement
and (y) the date upon which the predecessor Servicer shall
become unable to act as Servicer, as specified in the notice
of resignation and accompanying Opinion of Counsel. In the
event of the Servicer's termination hereunder, the
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Indenture Trustee shall appoint a successor Servicer, and the
successor Servicer shall accept its appointment by a written
assumption in form acceptable to the Owner Trustee and the
Indenture Trustee. In the event that a successor Servicer has
not been appointed at the time when the predecessor Servicer
has ceased to act as Servicer in accordance with this Section,
pending the appointment of and acceptance by a successor
Servicer, the Indenture Trustee without further action shall
automatically be appointed and serve as the successor Servicer
and the Indenture Trustee shall be entitled to the Servicing
Fee; provided, however, the provisions of Section 7.01 shall
not apply and the provisions of Section 4.07 shall not apply
in the case of a breach by a predecessor Servicer. The
Indenture Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with
Section 4.14. The Indenture Trustee shall not be liable for
any action or failure to act on the part of the predecessor
Servicer. Notwithstanding the above, the Indenture Trustee
shall, if it shall be legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than
$50,000,000 and whose regular business shall include the
servicing of equipment receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including
the Indenture Trustee acting as successor Servicer) shall be
the successor in all respects to the predecessor Servicer and
shall be subject to all the responsibilities, duties and
liabilities arising thereafter relating thereto placed on the
predecessor Servicer and shall be entitled to the Servicing
Fee and all the rights granted to the predecessor Servicer by
the terms and provisions of this Agreement.
(c) Subject to the Indenture Trustee's right to appoint
a successor Servicer pursuant to Section 8.02(a) after the
Indenture Trustee has become the Servicer, the Servicer may
not resign unless it is prohibited from serving as such by
law.
SECTION 8.03 Notification to Noteholders and the
Certificateholder. Upon any termination of, or appointment of
a successor to, the Servicer pursuant to this Article VIII,
the Owner Trustee shall give prompt written notice thereof to
the Certificateholder and the Indenture Trustee shall give
prompt written notice thereof to Noteholders and the Rating
Agencies.
SECTION 8.04 Waiver of Past Defaults. The Holders of
Notes evidencing not less than a majority of the Outstanding
Amount of the Notes (or the Holder (as defined in the Trust
Agreement) of the Certificate, in the case of any default
which does not adversely affect the Indenture Trustee or the
Noteholders) may, on behalf of all Noteholders and
Certificateholders, waive in writing any default by the
Servicer in the performance of its obligations hereunder and
its consequences, except a default in making any required
deposits to or payments from any of the Trust Accounts in
accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any
Servicer Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or
impair any right consequent thereto.
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ARTICLE IX
Termination
SECTION 9.01 Optional Purchase of All Receivables and
Termination.
(a) On the last day of any Collection Period
immediately preceding a Payment Date as of which the then
outstanding Pool Balance is 10% or less of the Initial Pool
Balance, the Servicer shall have the option to purchase the
Owner Trust Estate, other than the Trust Accounts and the
Certificate Distribution Account; provided, however, that the
Servicer may not effect any such purchase so long as the
rating on Deere's long-term debt obligations is less than Baa3
by Moody's, unless the Owner Trustee and the Indenture Trustee
shall have received an Opinion of Counsel to the effect that
such purchase would not constitute a fraudulent conveyance;
provided further that each Rating Agency shall receive a copy
of such Opinion of Counsel and shall have confirmed that the
rating assigned to the Notes by such Rating Agency shall not
be withdrawn or downgraded as a result of such purchase. To
exercise such option, the Servicer shall deposit pursuant to
Section 5.03 in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables (including
defaulted Receivables) and shall succeed to all interests in
and to the Trust.
(b) Upon any sale of the assets of the Trust pursuant
to Section 9.02 of the Trust Agreement, the Servicer shall
instruct the Indenture Trustee to deposit the proceeds from
such sale after all payments and reserves therefrom have been
made (the "Insolvency Proceeds") in the Collection Account.
On the Payment Date on which the Insolvency Proceeds are
deposited in the Collection Account (or, if such proceeds are
not so deposited on a Payment Date, on the Payment Date
immediately following such deposit), the Servicer shall
instruct the Indenture Trustee to make the following deposits
(after the application on such Payment Date of the Total
Distribution Amount and funds on deposit in the Reserve
Account pursuant to Sections 5.04 and 5.05) from the
Insolvency Proceeds and any funds remaining on deposit in the
Reserve Account (including the proceeds of any sale of
investments therein as described in the following sentence):
(i) to the Note Distribution Account, any portion
of the accrued but unpaid interest on the Notes not otherwise
deposited into the Note Distribution Account on such Payment
Date;
(ii) to the Note Distribution Account, the
outstanding principal balance of the Notes (after giving
effect to the reduction in the outstanding principal balance
of the Notes to result from the deposits made in the Note
Distribution Account on such Payment Date and on prior Payment
Dates); and
(iii) to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction in
the Certificate Balance to result from the deposits made in
the Certificate Distribution Account on such Payment Date).
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Any investments on deposit in the Reserve Account and Note
Distribution Account which will not mature on or before such
Payment Date shall be sold by the Indenture Trustee at such
time as will result in the Indenture Trustee receiving the
proceeds from such sale not later than the Transfer Date
preceding such Payment Date. Any Insolvency Proceeds
remaining after the deposits described above shall be paid to
the Seller.
(c) Notice of any termination of the Trust shall be
given by the Servicer to the Owner Trustee and the Indenture
Trustee as soon as practicable after the Servicer has received
notice thereof.
(d) Following the satisfaction and discharge of the
Indenture and the payment in full of the principal of and
interest on, and the cancellation of all of, the Notes, the
Certificateholder will succeed to the rights of the
Noteholders hereunder other than Section 5.05(b) and the Owner
Trustee will succeed to the rights of the Indenture Trustee
pursuant to this Agreement.
(e) This Agreement shall terminate upon the termination
of the Trust.
ARTICLE X
Miscellaneous Provisions
SECTION 10.01 Amendment. The Agreement may be amended by
the Seller, the Servicer and the Trust, with the consent of
the Indenture Trustee, but without the consent of any of the
Noteholders or the Certificateholder, to cure any ambiguity,
to correct or supplement any provision in this Agreement or
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement
or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel delivered to
the Owner Trustee and the Indenture Trustee, adversely affect
in any material respect the interests of any Noteholder or
Certificateholder; provided further that 10 days' prior
written notice of any such amendment be given to each Rating
Agency and, if a Rating Agency notifies the Owner Trustee that
such amendment will result in a downgrading or withdrawal of
the then current rating of the Notes or the Certificate, such
amendment shall become effective with the consent of the
Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the
Certificateholder (as defined in the Trust Agreement).
This Agreement may also be amended from time to time, with
10 days' prior notice to each of the Rating Agencies, by the
Seller, the Servicer and the Owner Trustee, with the consent
of the Indenture Trustee, the consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount
of the Notes and the consent of the Holders (as defined in the
Trust Agreement) of Certificate, 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 the Certificateholder;
provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the
benefit of the Noteholders or the Certificateholder or (b)
reduce the aforesaid
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percentage of the Outstanding Amount of the Notes and the
Certificate Balance, the Holders of which are required to
consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and the consent of the
Certificateholder (as defined in the Trust Agreement).
Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to the
Certificateholder and the Indenture Trustee.
It shall not be necessary for the consent of the
Certificateholder or the Noteholders pursuant to this Section
to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by
this Agreement and the Opinion of Counsel referred to in
Section 10.02(i)(1) and that all conditions precedent have
been satisfied. The Owner Trustee and the Indenture Trustee
may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's or the Indenture
Trustee's, as applicable, own rights, duties or immunities
under this Agreement or otherwise.
SECTION 10.02 Protection of Title to Trust.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such
continuation statements, all in such manner and in such places
as may be required by law fully to preserve, maintain, and
protect the interest of the Issuer and the interests of the
Indenture Trustee in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered)
to the Owner Trustee and the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change
its name, identity or corporate structure in any manner that
would, could or might make any financing statement or
continuation statement filed in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402(7) of
the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least five days' prior written notice
thereof and shall have promptly filed appropriate amendments
to all previously filed financing statements or continuation
statements.
(c) Each of the Seller and the Servicer shall have an
obligation to give the Owner Trustee and the Indenture Trustee
at least 60 days' prior written notice of any relocation of
its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement
and shall promptly file any such amendment. The Servicer
shall at all times maintain each office from which it shall
service Receivables, and its principal executive office,
within the United States of America.
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(d) The Servicer shall maintain accounts and records as
to each Receivable accurately and in sufficient detail to
permit (i) the reader thereof to know at any time the status
of such Receivable, including payments and recoveries made and
payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with
respect to) each Receivable and the amounts from time to time
deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of
the Receivables, the Servicer's master computer records
(including any backup archives) that refer to a Receivable
shall indicate clearly the interest of the Issuer and the
Indenture Trustee in such Receivable and that such Receivable
is owned by the Issuer and has been pledged to the Indenture
Trustee. Indication of the Issuer's and the Indenture
Trustee's interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only
when, the related Receivable shall have been paid in full,
purchased or repurchased.
(f) If at any time the Seller or the Servicer shall
propose to sell, grant a security interest in, or otherwise
transfer any interest in equipment receivables to any
prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts
(including any restored from backup archives) that, if they
shall refer in any manner whatsoever to any Receivable, shall
indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Indenture
Trustee.
(g) The Servicer shall permit the Indenture Trustee and
its agents at any time during normal business hours to
inspect, audit and make copies of and abstracts from the
Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the
Owner Trustee or to the Indenture Trustee, within five
Business Days, a list of all Receivables (by contract number
and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificate
furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and
the Indenture Trustee:
(1) promptly after the execution and delivery of
this Agreement and of each amendment thereto, an Opinion of
Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements
have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the
Indenture Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to
preserve and protect such interest; and
(2) within 90 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Cut-off Date, an Opinion of
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Counsel, dated as of a date during such 90-day period, either
(A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which
such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve
and protect such interest.
Each Opinion of Counsel referred to in clause (l) or
(2) above shall specify any action necessary (as of the date
of such opinion) to be taken in the following year to preserve
and protect such interest.
(j) The Seller shall, to the extent required by
applicable law, cause the Certificate and the Notes to be
registered with the Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.03 Notices. All demands, notices,
instructions and communications upon or to the Seller, the
Servicer, the Owner Trustee, the Indenture Trustee or the
Rating Agencies under this Agreement shall be in writing,
personally delivered, sent by facsimile 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
John Deere Receivables, Inc., First Interstate Bank Building,
1 East First Street, Reno, Nevada 89501, Attention: Manager
(702-786-5914), with a copy to Director, Domestic Finance,
Deere & Company, John Deere Road, Moline, Illinois 61265-8098
(309-765-5815), (b) in the case of the Servicer, to John Deere
Capital Corporation, 1 East First Street, Reno, Nevada 89501,
Attention: Manager (702-786-5527), with a copy to Director,
Domestic Finance, Deere & Company, One John Deere Place,
Moline, Illinois 61265-8098 (309-765-5815), (c) in the case of
the Issuer or the Owner Trustee, at the Corporate Trust Office
(as defined in the Trust Agreement), (d) in the case of the
Indenture Trustee, at the Corporate Trust Office, (e) in the
case of Moody's, to Moody's Investors Service, Inc., ABS
Monitoring Department, 99 Church Street, New York, New York
10007, (f) in the case of Standard & Poor's, to Standard &
Poor's Ratings Services, 55 Water Street, 40th Floor, New
York, New York 10014, Attention of Asset Backed Surveillance
Department; and (g) in the case of Fitch, to Fitch IBCA, Inc.,
One State Street Plaza, New York, New York 10004, Attention:
Structured Finance Surveillance; or, as to each of the
foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 10.04 Assignment. Notwithstanding anything to
the contrary contained herein, except as provided in Sections
6.04 and 7.03 and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this
Agreement may not be assigned by the Seller or the Servicer.
SECTION 10.05 Limitations on Rights of Others. The
provisions of this Agreement are solely for the benefit of the
Seller, the Servicer, the Issuer, the Owner Trustee, the
Certificateholder, the Indenture Trustee and the Noteholders
and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or
under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
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SECTION 10.06 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 10.07 Separate Counterparts. This Agreement may
be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 10.08 Headings. The headings of the various
Articles and Sections herein are for convenience of reference
only and shall not define or limit any of the terms or
provisions hereof.
SECTION 10.09 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 10.10 Assignment to Indenture Trustee. The
Seller hereby acknowledges and consents to any mortgage,
pledge, assignment and grant of a security interest by the
Issuer to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders of all right, title and
interest of the Issuer in, to and under the Receivables and/or
the assignment of any or all of the Issuer's rights and
obligations hereunder to the Indenture Trustee.
SECTION 10.11 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this
Agreement, the Servicer and the Seller shall not, prior to the
date which is one year and one day after the termination of
this Agreement with respect to the Issuer, acquiesce, petition
or otherwise invoke or cause the Issuer to invoke the process
of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any
Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this
Agreement, the Servicer shall not, prior to the date which is
one year and one day after the termination of this Agreement
with respect to the Seller, acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court
or government authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or
state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Seller.
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SECTION 10.12 Limitation of Liability of Owner Trustee
and Indenture Trustee.
(a) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by Bankers
Trust (Delaware) not in its individual capacity but solely in
its capacity as Owner Trustee of the Issuer and in no event
shall Bankers Trust (Delaware) 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. For all purposes of this
Agreement, in the performance of its duties or obligations
hereunder or 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 Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been accepted by The Bank of New
York not in its individual capacity but solely as Indenture
Trustee and in no event shall The Bank of New York 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.
SECTION 10.13 Additional Securities. The issuance of any
securities by John Deere Receivables, Inc., other than the
Notes and the Certificate, will require satisfaction of the
Rating Agency Condition.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as
of the day and year first above written.
JOHN DEERE OWNER TRUST 1999-A
By: Bankers Trust (Delaware)
not in its individual capacity but
solely as Owner Trustee on behalf
of the Trust,
By: ___________________________________
Title:
JOHN DEERE RECEIVABLES, INC.,
Seller,
By: ___________________________________
Name: Timur Gok
Title: Assistant Secretary
JOHN DEERE CAPITAL CORPORATION,
Servicer,
By: ___________________________________
Name: Michael A. Harring
Title: Assistant Secretary
Acknowledged and Accepted:
The Bank of New York,
not in its individual
capacity but solely
as Indenture Trustee,
By: ________________________________________
Title:
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SCHEDULE A
Schedule of Receivables
[Delivered to the Trust at the Closing]
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<PAGE>
SCHEDULE B
Location of Receivable Files
Suite 600
1 East First Street
Reno, Nevada 89501
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<PAGE>
SCHEDULE C
LIST OF FISCAL MONTHS
FISCAL MONTH CUTOFF DATES (BY FISCAL YEAR)
Cal-
Fis- en-
cal dar
Mo. Mo. 1999 2000 2001 2002 2003 2004 2005 2006 2007
- --------------------------------------------------------------
1 Nov 28Nov99 26Nov00 25Nov01
2 Dec 26Dec99 24Dec00 23Dec01
3 Jan 30Jan 28Jan 27Jan
4 Feb 27Feb 25Feb 24Feb
5 Mar 26Mar 25Mar 24Mar
6 Apr 30Apr 29Apr 28Apr
7 May 30May 28May 27May 26May
8 Jun 27Jun 25Jun 24Jun 23Jun
9 Jul 01Aug 30Jul 29Jul 28Jul
10 Aug 29Aug 27Aug 26Aug 25Aug
11 Sep 24Sep 24Sep 23Sep 22Sep
12 Oct 31Oct 31Oct 31Oct 31Oct
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<PAGE>
SCHEDULE D
Servicer's Certificate
The undersigned hereby certify that (i) they are,
respectively, a duly elected Treasurer and Assistant Secretary
of John Deere Capital Corporation and (ii) this Servicing
Certificate complies with the requirements of, and is being
delivered pursuant to, Section 4.09 of the Sale and Servicing
Agreement (the "Sale and Servicing Agreement") dated as of May
15, 1999 between John Deere Owner Trust 1999-A, John Deere
Receivables, Inc. and John Deere Capital Corporation.
Dated: ______________________________
Name: James R. Jabanoski
Title: Treasurer
______________________________
Name: Timur Gok
Title: Assistant Secretary
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Payment Date: _______________________________
(1) Servicing Fee:
(2) Administration Fee:
(3) Total Distribution Amount:
(4) Accrued and unpaid interest on the Notes:
(5) Class A Monthly Principal Distributable Amount:
(6) Class B Monthly Principal Distributable Amount:
(7) Deposit to Reserve Account from Collection Account to
increase the amount on deposit in the Reserve Account
to the Specified Reserve Account Balance:
(8) Deposit of Excess to Reserve Account from Collection
Account:
(9) Specified Reserve Account Balance (before any
distributions of excess):
(10) Reserve Account Balance over the Specified Reserve
Account Balance (before any distributions of excess):
(11) Excess Reserve Account Balance distributable to Seller
(5.05(b)(i) or (ii)):
(12) Certificateholder's Monthly Principal Distributable
Amount:
(13) Amount to be withdrawn from the Reserve Account and
deposited into the Note Distribution Account
(5.05(c)):
Interest amount included in above figure:
Principal amount included in above figure:
(14) (a) Pool Balance as of the close of business on the
last day of the related Collection Period:
(b) Note Value at the end of the related Collection
Period:
(c) Number of Accounts at the end of the related
Collection Period:
(15) Outstanding Principal Balance of Class A-1 Notes:
Outstanding Principal Balance of Class A-2 Notes
Outstanding Principal Balance of Class A-3 Notes
Outstanding Principal Balance of Class A-4 Notes
Outstanding Principal Balance of Class B Note
Outstanding Principal Balance of the Certificate:
(16) Aggregate amount of Purchased Receivables for related
Collection Period:
(17) Reserve Account Balance after giving effect to all
distributions:
(18) Specified Reserve Account Balance (after all
distributions and adjustments):
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Officer's Certificate
The undersigned hereby certify that (i) they are,
respectively, a duly elected Treasurer and Assistant Secretary
of John Deere Capital Corporation, (ii) Schedule E hereto
complies with the requirements of, and is being delivered
pursuant to, Section 5.06(a) of the Sale and Servicing
Agreement (the "Sale and Servicing Agreement") dated as of May
15, 1999 between John Deere Owner Trust 1999-A, John Deere
Receivables, Inc. and John Deere Capital Corporation, (iii)
Schedule F hereto complies with the requirements of, and is
delivered pursuant to, Section 5.06(b) of the Sale and
Servicing Agreement, and (iv) Schedule G hereto complies with
the requirements of, and is being delivered pursuant to,
Section 5.04(b) of the Sale and Servicing Agreement.
Dated: ___________________________________
Name: James R. Jabanoski
Title: Treasurer
___________________________________
Name: Timur Gok
Title: Assistant Secretary
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SCHEDULE E
Statement to Certificateholders
pursuant to Section 5.06(a)
Payment Date: _____________________________________
(1) Amount of principal being paid or distributed:
(a) Class A-1 Notes:
per $1,000 original principal amount:
(b) Class A-2 Notes:
per $1,000 original principal amount:
(c) Class A-3 Notes:
per $1,000 original principal amount:
(d) Class A-4 Notes:
per $1,000 original principal amount:
(e) Class B Note:
per $1,000 original principal amount:
(f) Certificate:
per $1,000 original principal amount:
(g) Total:
(2) (a) Amount of interest being paid or distributed:
(i) Class A-1 Notes:
per $1,000 original principal amount:
(ii) Class A-2 Notes:
per $1,000 original principal amount:
(iii) Class A-3 Notes:
per $1,000 original principal amount:
(iv) Class A-4 Notes:
per $1,000 original principal amount:
(v) Class B Note:
per $1,000 original principal amount
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(vii) Total:
(3) (a) Pool Balance at end of related Collection
Period:
(b) Note Value at end of related Collection Period:
(4) After giving effect to distributions on this Payment
Date:
(a) (i) Outstanding principal amount of
Class A-1 Notes:
(ii) Outstanding principal amount of
Class A-2 Notes:
(iii) Outstanding principal amount of
Class A-3 Notes:
(iv) Outstanding principal amount of
Class A-4 Notes:
(v) Outstanding principal amount of
Class B Note:
(b) Certificate Balance:
(5) Amount of Servicing Fee:
per $1,000 original principal amount of Notes and
Certificate:
(6) Amount of Administration Fee:
(7) Aggregate Purchase Amounts for Collection Period:
(8) (i) Amount in Reserve Account:
(ii) Specified Reserve Account Balance:
(9) Amount of any payments in respect of the Receivables
that are more than 60 days past due as of the end of
the related Collection Period:
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SCHEDULE F
Statement for Noteholders
pursuant to Section 5.06(b)
Payment Date: _____________________________________
(1) Amount of principal being paid on Notes:
(a) Class A-1 Notes:
per $1,000 original principal amount:
(b) Class A-2 Notes:
per $1,000 original principal amount:
(c) Class A-3 Notes:
per $1,000 original principal amount:
(d) Class A-4 Notes:
per $1,000 original principal amount:
(e) Class B Note:
per $1,000 original principal amount:
(f) Total:
(2) (a) Amount of interest being paid on Notes:
(i) Class A-1 Notes:
per $1,000 original principal amount:
(ii) Class A-2 Notes:
per $1,000 original principal amount:
(iii) Class A-3 Notes:
per $1,000 original principal amount:
(iv) Class A-4 Notes:
per $1,000 original principal amount:
(v) Class B Note:
per $1,000 original principal amount
(vi) Total:
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(3) (a) Pool Balance at end of related Collection
Period:
(b) Note Value at end of related Collection Period:
(4) After giving effect to distributions on this Payment
Date:
(a) (i) Outstanding principal amount of Class A-1
Notes:
(ii) Outstanding principal amount of Class A-2
Notes:
(iii) Outstanding principal amount of Class A-3
Notes:
(iv) Outstanding principal amount of Class A-4
Notes:
(v) Outstanding principal amount of Class B
Note:
(b) (i) Certificate Balance:
(ii) Certificate Factor:
(5) Amount of Servicing Fee:
per $1,000 original principal amount of
Notes and Certificate:
(6) Amount of Administration Fee:
(7) Aggregate Purchase Amounts for Collection Period:
(8) (i) Amount in Reserve Account:
(ii) Specified Reserve Account Balance:
(9) Amount of any payments in respect of the Receivables
that are more than 60 days past due as of the end of
the related Collection Period:
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SCHEDULE G
Instructions to the Trustee for payments and deposits
pursuant to Section 5.04(b) of the Sale and Servicing
Agreement:
Payment Date: _____________________
(i) Payment of Servicing Fee (including any previously
unpaid Servicing Fees) to Servicer: _________________.
(ii) Payment of Administration Fee to Administrator:
_________________.
(iii) Accrued and unpaid interest on the Notes for such
Payment Date: _________________.
(iv) Note Principal Distributable Amount to be deposited
into Note Distribution Account: _________________.
(v) Deposit to Reserve Account to increase the amounts on
deposit in the Reserve Account to the Specified Reserve
Account Balance: _________________.
(vi) Certificate Monthly Principal Distributable Amount to be
deposited into Certificate Distribution Account:
_________________.
(vii) Deposit to Reserve Account: _________________.
Page 57
EXHIBIT 4.4
ADMINISTRATION AGREEMENT, dated as of May 15, 1999, among
JOHN DEERE OWNER TRUST 1999-A, a Delaware business trust (the
"Issuer"), JOHN DEERE CAPITAL CORPORATION, a Delaware
corporation, as administrator (the "Administrator"), and The
Bank of New York, a New York banking corporation, not in its
individual capacity but solely as indenture trustee (the
"Indenture Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer is issuing the Class A-1 4.9988% Asset
Backed Notes (the "A-1 Notes"), the Class A-2 5.466% Asset
Backed Notes (the "A-2 Notes"), the Class A-3 5.94% Asset
Backed Notes (the "A-3 Notes"), the Class A-4 6.12% Asset
Backed Notes (the "A-4 Notes") and the Class B 6.10% Asset
Backed Notes (the "Class B Notes", and together with the A-1
Notes, A-2 Notes, A-3 Notes and A-4 Notes, the "Notes")
pursuant to the Indenture, dated as of May 15, 1999 (as
amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Indenture"),
between the Issuer and the Indenture Trustee (capitalized
terms used herein and not defined herein shall have the
meanings assigned such terms in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Notes and the issuance of
certain beneficial ownership interests of the Issuer,
including (i) a Sale and Servicing Agreement, dated as of May
15, 1999 (the "Sale and Servicing Agreement"), among the
Issuer, John Deere Capital Corporation, as Servicer, and John
Deere Receivables, Inc., a Nevada corporation, as seller (the
"Seller"), (ii) a Depository Agreement, dated May 27, 1999
(the "Depository Agreement"), among the Issuer, the Indenture
Trustee and The Depository Trust Company, (iii) the Indenture
and (iv) a Trust Agreement, dated as of May 15, 1999 (the
"Trust Agreement"), between the Seller and Bankers Trust
(Delaware), as owner trustee (the "Owner Trustee") (the Sale
and Servicing Agreement, the Depository Agreement, the
Indenture and the Trust Agreement being hereinafter referred
to collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer
and the Owner Trustee are required to perform certain duties
in connection with (a) the Notes and the collateral therefor
pledged pursuant to the Indenture (the "Collateral") and (b)
the beneficial ownership interests in the Issuer (the holders
of such interests being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have
the Administrator perform certain of the duties of the Issuer
and the Owner Trustee referred to in the preceding clause, and
to provide such additional services consistent with the terms
of this Agreement and the Related Agreements as the Issuer and
the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the
services required hereby and is willing to perform such
services for the Issuer and the Owner Trustee on the terms set
forth herein.
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NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Depository Agreement and
the Indenture.
(i) The Administrator agrees to perform all its
duties as Administrator and the duties of the Issuer and the
Owner Trustee under the Depository Agreement. In addition, the
Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer under the Indenture and the
Depository Agreement. The Administrator shall monitor the
performance of the Issuer or the Owner Trustee and shall
advise the Owner Trustee when action is necessary to comply
with the Issuer's or the Owner Trustee's duties under the
Indenture or the Depository Agreement. The Administrator shall
prepare for execution by the Issuer or the Owner Trustee or
shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Indenture or the Depository Agreement. In
furtherance of the foregoing, the Administrator shall take all
appropriate action that it is the duty of the Issuer or the
Owner Trustee to take pursuant to the Indenture including,
without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture
(references are to sections of the Indenture):
(A) the duty to cause the Note Register to be
kept and to give the Indenture Trustee notice of any
appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the
final principal payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any
special record date and the notification of the Indenture
Trustee and Noteholders with respect to special payment dates,
if any (Section 2.07(c));
(D) the preparation of or obtaining of the
documents and instruments required for authentication of the
Notes and delivery of the same to the Indenture Trustee
(Section 2.02);
(E) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of collateral (Section 2.09);
(F) the duty to cause newly appointed Paying
Agents, if any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds held in
trust (Section 3.03);
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<PAGE>
(G) the direction to the Indenture Trustee to
deposit monies with Paying Agents, if any, other than the
Indenture Trustee (Section 3.03);
(H) the obtaining and preservation of the
Issuer's qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect
the validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(I) the preparation of all supplements,
amendments, financing statements, continuation statements,
instruments of further assurance and other instruments, in
accordance with Section 3.05 of the Indenture, necessary to
protect the Trust Estate (Section 3.05);
(J) the delivery of the Opinion of Counsel on
the Closing Date and the annual delivery of Opinions of
Counsel, in accordance with Section 3.06 of the Indenture, as
to the Trust Estate, and the annual delivery of the Officers'
Certificate and certain other statements, in accordance with
Section 3.09 of the Indenture, as to compliance with the
Indenture (Sections 3.06 and 3.09);
(K) the identification to the Indenture Trustee
in an Officers' Certificate of a Person with whom the Issuer
has contracted to perform its duties under the Indenture
(Section 3.07(b));
(L) the notification of the Indenture Trustee
and the Rating Agencies of a Servicer Default pursuant to the
Sale and Servicing Agreement and, if such Servicer Default
arises from the failure of the Servicer to perform any of its
duties under the Sale and Servicing Agreement, the taking of
all reasonable steps available to remedy such failure (Section
3.07(d));
(M) the preparation and obtaining of documents
and instruments required for the release of the Issuer from
its obligation under the Indenture (Section 3.10);
(N) the delivery of notice to the Indenture
Trustee of each Event of Default and each default by the
Servicer or Seller under the Sale and Servicing Agreement
(Section 3.19);
(O) the monitoring of the Issuer's obligations
as to the satisfaction and discharge of the Indenture and the
preparation of an Officers' Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(P) the compliance with any written directive
of the Indenture Trustee with respect to the sale of the Trust
Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing (Section 5.04);
(Q) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.08);
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<PAGE>
(R) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of any co-trustee
or separate trustee (Sections 6.08 and 6.10);
(S) the furnishing of the Indenture Trustee
with the names and addresses of Noteholders during any period
when the Indenture Trustee is not the Note Registrar (Section
7.01);
(T) the preparation and filing with the
Commission, any applicable state agencies and the Indenture
Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any applicable
state agencies and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.03);
(U) the opening of one or more accounts in the
Trust's name, the preparation of Issuer Orders, Officers'
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds
in the Trust Accounts (Sections 8.02 and 8.03);
(V) the preparation of an Issuer Request and
Officers' Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate as defined in the Indenture
(Sections 8.04 and 8.05);
(W) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(X) the preparation and, after execution by the
Owner Trustee on behalf of the Issuer, delivery of new Notes
conforming to any supplemental indenture (Section 9.06);
(Y) the notification of Noteholders of
redemption of the Notes or the duty to cause the Indenture
Trustee to provide such notification (Section 10.02);
(Z) the preparation and delivery of all
Officers' Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture
(Section 11.01(a));
(AA) the preparation and delivery of Officers'
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.01(b));
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<PAGE>
(BB) the notification of the Rating Agencies,
upon the failure of the Indenture Trustee to give such
notification, of the information required pursuant to Section
11.04 (Section 11.04);
(CC) the preparation and delivery to
Noteholders and the Indenture Trustee of any agreements with
respect to alternate payment and notice provisions (Section
11.06); and
(DD) the recording of the Indenture, if
applicable (Section 11.15).
(ii) The Administrator (other than at any time when
the Indenture Trustee, in the capacity as successor Servicer,
is also acting as successor Administrator) will:
(A) pay the Indenture Trustee from time to time
reasonable compensation for all services rendered by the
Indenture Trustee under the Indenture (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in
the Indenture, reimburse the Indenture Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its
agents and either in-house counsel or outside counsel, but not
both), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its
agents for, and to hold them harmless against, any losses,
liability or expense incurred without negligence or bad faith
on their part, arising out of or in connection with the
acceptance or administration of the transactions contemplated
by the Indenture, including the reasonable costs and expenses
of defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Indenture;
(D) pay the Owner Trustee from time to time
reasonable compensation for all services rendered by the Owner
Trustee under the Trust Agreement (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(E) except as otherwise expressly provided in
the Trust Agreement, reimburse the Owner Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Owner Trustee in accordance
with any provision of the Trust Agreement (including the
reasonable compensation, expenses and disbursements of its
agents and either in-house counsel or outside counsel, but not
both), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith;
(F) indemnify the Owner Trustee and its agents
for, and to hold them harmless against, any losses, liability
or expense incurred without negligence or bad faith on
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their part, arising out of or in connection with the
acceptance or administration of the transactions contemplated
by the Trust Agreement, including the reasonable costs and
expenses of defending themselves against any claim or
liability in connection with the exercise or performance of
any of their powers or duties under the Trust Agreement.
(b) Additional Duties.
(i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform such
calculations and shall prepare or shall cause the preparation
by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be
the duty of the Issuer or the Owner Trustee to prepare, file
or deliver pursuant to the Related Agreements, and at the
request of the Owner Trustee shall take all appropriate action
that it is the duty of the Issuer or the Owner Trustee to take
pursuant to the Related Agreements. Subject to Section 5 of
this Agreement, and in accordance with the directions of the
Owner Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in
connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee
and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or
the Related Agreements to the contrary, the Administrator
shall be responsible for performance of the duties of the
Owner Trustee set forth in Section 5.05 of the Trust Agreement
with respect to, among other things, accounting and reports to
the Owner.
(iii) The Administrator shall perform the duties of
the Administrator specified in Section 10.02 of the Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator
under the Trust Agreement.
(iv) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator
may enter into transactions with or otherwise deal with any of
its affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(v) The Administrator hereby agrees to execute on
behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty
of the Issuer to prepare, file or deliver pursuant to the
Basic Documents.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee and the
Indenture Trustee of the proposed action and the Owner Trustee
and the Indenture Trustee shall
Page 6
<PAGE>
not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-
ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer;
(C) the amendment, change or modification of
the Related Agreements;
(D) the appointment of successor Note
Registrars, successor Paying Agents and successor Indenture
Trustees pursuant to the Indenture or the appointment of
successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent
or Indenture Trustee of its obligations under the Indenture;
and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in
this Agreement, the Administrator shall not be obligated to,
and shall not, (x) make any payments to the Noteholders under
the Related Agreements, (y) sell the Trust Estate pursuant to
Section 5.04 of the Indenture or (z) take any other action
that the Issuer directs the Administrator not to take on its
behalf.
2. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed
hereunder, which books of account and records shall be
accessible for inspection by the Issuer, the Owner Trustee and
the Depositor and their respective agents at any time during
normal business hours.
3. Compensation. As compensation for the performance of
the Administrator's obligations under this Agreement and as
reimbursement for its expenses related thereto, the
Administrator shall be entitled to $100 per month which shall
be solely an obligation of the Issuer.
4. Additional Information to Be Furnished to the Issuer.
The Administrator shall furnish to the Issuer from time to
time such additional information regarding the Collateral as
the Issuer shall reasonably request.
5. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent
contractor and, except as set forth herein, shall not be
subject to the supervision of the Issuer or the Owner Trustee
with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly
authorized by the Issuer, the Administrator shall have no
authority to act for or represent the Issuer or the Owner
Trustee in any way and shall not otherwise be deemed an agent
of the Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Administrator and either of the
Issuer or the Owner Trustee as members of any partnership,
joint
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venture, association, syndicate, unincorporated business or
other separate entity, (ii) shall be construed to impose any
liability as such on any of them or (iii) shall be deemed to
confer on any of them any express, implied or apparent
authority to incur any obligation or liability on behalf of
the others.
7. Other Activities of the Administrator. Nothing herein
shall prevent the Administrator or its affiliates from
engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an administrator for any other
person or entity even though such person or entity may engage
in business activities similar to those of the Issuer, the
Owner Trustee or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of the
Administrator.
(a) This Agreement shall continue in force until the
dissolution of the Issuer, upon which event this Agreement
shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may
resign its duties hereunder by providing the Issuer with at
least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator
with at least 60 days' prior written notice.
(d) Subject to Section 8(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon
written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and,
after notice of such default, shall not cure such default
within ten days (or, if such default cannot be cured in such
time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or
order shall not have been vacated within 60 days, in respect
of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part
of its property, shall consent to the taking of possession by
any such official of any substantial part of its property,
shall make any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they become due.
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The Administrator agrees that if any of the events
specified in clause (ii) or (iii) of this Section shall occur,
it shall give written notice thereof to the Issuer and the
Indenture Trustee within seven days after the happening of
such event.
(e) No resignation or removal of the Administrator
pursuant to this Section shall be effective until (i) a
successor Administrator shall have been appointed by the
Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the
same manner as the Administrator is bound hereunder; provided,
however, that, if a successor Administrator has not been
appointed and accepted its appointment hereunder as
Administrator (x) within 60 days following delivery of the
notice referred to in Section 8(b) or 8(c) or (y) upon the
removal of the Administrator pursuant to Section 8(d), then
the Servicer shall automatically become successor
Administrator.
(f) The appointment of any successor Administrator
shall be effective only after satisfaction of the Rating
Agency Condition with respect to the proposed appointment.
9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this
Agreement pursuant to Section 8(a) or the resignation or
removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid
all fees and reimbursable expenses accruing to it to the date
of such termination, resignation or removal. The Administrator
shall forthwith upon such termination pursuant to Section 8(a)
deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of
the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall cooperate with the
Issuer and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the
Administrator.
10. Notices. Any notice, report or other communication
given hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
John Deere Owner Trust 1999-A
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Montgomery Building
1011 Centre Road, Suite 200
Wilmington, Delaware 19805
Attention: M. Lisa Wilkins, Assistant Secretary
with a copy to
Bankers Trust Company
Four Albany Street, 10th Floor
New York, New York 10006
Attention: Corporate Trust & Agency Group
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(b) if to the Administrator, to
John Deere Capital Corporation
Suite 600
First Interstate Bank Bldg.
1 East First Street
Reno, NV 89501
Attention: Manager
with a copy to
Deere & Company
John Deere Road
Moline, IL 61265
Attention: Treasury Department, Asset Securitization
(c) if to the Indenture Trustee, to
The Bank of New York
101 Barclay Street
Floor 12E
New York, New York 10286
Attention: Asset Backed Finance Unit
or to such other address as any party shall have provided
to the other parties in writing. Any notice required to be in
writing hereunder shall be deemed given if such notice is
mailed by certified mail, postage prepaid, sent by facsimile
or hand-delivered to the address of such party as provided
above, except that notices to the Issuer, the Owner Trustee or
the Indenture Trustee are effective only upon receipt.
11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Indenture Trustee, with the
written consent of the Owner Trustee, without the consent of
the Noteholders 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 the Noteholders or the
Certificateholder; provided that such amendment will not, in
the Opinion of Counsel satisfactory to the Indenture Trustee,
materially and adversely affect the interest of any Noteholder
or the Certificateholder. This Agreement may also be amended
by the Issuer, the Administrator and the Indenture Trustee
with the written consent of the Owner Trustee and the holders
of Notes evidencing at least a majority in the Outstanding
Amount of the Notes and the holder of the Certificate 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, collections of payments on
Receivables or distributions that are required to be made for
the benefit of the Noteholders or the Certificateholder or
(ii) reduce the aforesaid percentage
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of the holders of Notes which are required to consent to any
such amendment or eliminate the consent of the
Certificateholder, without the consent of the holders of all
the outstanding Notes and the Certificate. Notwithstanding the
foregoing, the Administrator may not amend this Agreement
without the permission of John Deere Receivables, Inc., as
Depositor under the Trust Agreement, which permission shall
not be unreasonably withheld.
12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is
previously consented to in writing by the Issuer and the Owner
Trustee and subject to the satisfaction of the Rating Agency
Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of
the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or
purchase of assets) to the Administrator, provided that such
successor organization executes and delivers to the Issuer,
the Owner Trustee and the Indenture Trustee an agreement in
which such corporation or other organization agrees to be
bound hereunder by the terms of said assignment in the same
manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns
of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been
inserted for convenience of reference only and shall not be
construed to affect the meaning, construction or effect of
this Agreement.
15. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together
constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be
ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
17. Not Applicable to John Deere Capital Corporation in
Other Capacities. Nothing in this Agreement shall affect any
obligation John Deere Capital Corporation may have in any
other capacity.
18. Limitation of Liability of the Owner Trustee and the
Indenture Trustee.
(a) Notwithstanding anything contained herein to the
contrary, this instrument has been countersigned by Bankers
Trust (Delaware) not in its individual capacity but solely in
its capacity as Owner Trustee of the Issuer and in no event
shall Bankers Trust (Delaware) in its individual capacity or
any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder,
Page 11
<PAGE>
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 Articles VI,
VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by The Bank of
New York not in its individual capacity but solely as
Indenture Trustee, and in no event shall The Bank of New York
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.
19. Third-Party Beneficiary. The Owner Trustee is a third-
party beneficiary to this Agreement and is entitled to the
rights and benefits hereunder and may enforce the provisions
hereof as if it were a party hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the day and year first
above written.
JOHN DEERE OWNER TRUST 1999-A
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as Owner Trustee,
By: __________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee,
By: __________________________________
Name:
Title:
JOHN DEERE CAPITAL CORPORATION,
as Administrator,
By: __________________________________
Name: Michael A. Harring
Title: Assistant Secretary
Page 12
12
EXHIBIT 99.2
JOHN DEERE OWNER TRUST 1999-A
STATEMENT TO NOTEHOLDERS
$167,300,000 Class A-1 4.9988% Asset Backed Notes
due June 19, 2000
$262,000,000 Class A-2 5.4660% Asset Backed Notes
due August 15, 2001
$186,000,000 Class A-3 5.9400% Asset Backed Notes
due October 15, 2002
$146,125,000 Class A-4 6.1200% Asset Backed Notes
due October 17, 2005
$32,230,000 6.100% Class B Asset Backed Notes
due October 17, 2005
$12,086,832 Asset Backed Certificates
Payment Date: 15-Jun-99
(1) Amount of principal being paid on the Notes:
(a) A-1 Notes: $18,387,632.57
per $1,000 original principal amount: $109.91
(b) A-2 Notes: $0.00
per $1,000 original principal amount: $0.00
(c) A-3 Notes: $0.00
per $1,000 original principal amount: $0.00
(d) A-4 Notes: $0.00
per $1,000 original principal amount: $0.00
(e) B Notes: $778,682.83
per $1,000 original principal amount: $24.16
(f) Total: $19,166,315.39
(2) Interest on the Notes
(a) A-1 Notes: $441,380.15
per $1,000 original principal amount: $2.64
(b) A-2 Notes: $755,826.33
per $1,000 original principal amount: $2.88
(c) A-3 Notes: $552,420.00
per $1,000 original principal amount: $2.97
(d) A-4 Notes: $447,142.50
per $1,000 original principal amount: $3.06
(e) B Notes: $98,301.50
per $1,000 original principal amount: $3.05
(f) Total $2,295,070.48
(3) After giving effect to distributions on current Payment
Date:
(a) (i) outstanding principal amount of A-1 Notes:
$148,912,367.43
(ii) A-1 Note Pool Factor: 0.8900919
(b) (i) outstanding principal amount of A-2 Notes:
$262,000,000.00
(ii) A-2 Note Pool Factor: 1.0000000
(c) (i) outstanding principal amount of A-3 Notes:
$186,000,000.00
(ii) A-3 Note Pool Factor: 1.0000000
(d) (i) outstanding principal amount of A-4 Notes:
$146,125,000.00
(ii) A-4 Note Pool Factor: 1.0000000
<PAGE>
(e) (i) outstanding principal amount of B Notes:
$31,451,317.17
(ii) B Note Pool Factor: 0.9758398
(f) (i) Certificate Balance: $11,794,243.94
(ii) Certificate Pool Factor: 0.9757928
(4) Note Value at the end of the related Collection Period
$786,282,929.37
(5) Pool Balance (excluding accrued interest) at the end of
the related Collection Period: $779,369,863.87
(6) Amount of Servicing Fee: $666,750.09
per $1,000 original principal amount: 0.82749842
(7) Amount of Administration Fee: $100.00
(8) Aggregate Purchase Amounts for Collection Period: $0.00
(9) Amount in Reserve Account: $15,725,658.59
Specified Reserve Account Balance: $15,725,658.59
(10) Aggregate amount of Realized Losses for the Collection
Period: ($0.00)
(11) Amount of Payments that are more than 60 days past due:
$16,881.00
EXHIBIT 99.1
JOHN DEERE OWNER TRUST 1999-A
STATEMENT TO CERTIFICATEHOLDER
$167,300,000 Class A-1 4.9988% Asset Backed Notes
due June 19, 2000
$262,000,000 Class A-2 5.4660% Asset Backed Notes
due August 15, 2001
$186,000,000 Class A-3 5.9400% Asset Backed Notes
due October 15, 2002
$146,125,000 Class A-4 6.1200% Asset Backed Notes
due October 17, 2005
$32,230,000 6.100% Class B Asset Backed Notes
due October 17, 2005
$12,086,832 Asset Backed Certificates
Payment Date: 15-Jun-99
(1) Amount of principal being paid or distributed:
(a) A-1 Notes: $18,387,632.57
per $1,000 original principal amount: $109.91
(b) A-2 Notes: $0.00
per $1,000 original principal amount: $0.00
(c) A-3 Notes: $0.00
per $1,000 original principal amount: $0.00
(d) A-4 Notes: $0.00
per $1,000 original principal amount: $0.00
(e) B Notes: $778,682.83
per $1,000 original principal amount: $24.16
(f) Certificates: $292,588.06
per $1,000 original principal amount: $24.21
(g) Total: $19,458,903.45
(2) Amount of interest being paid or distributed:
(a) A-1 Notes: $441,380.15
per $1,000 original principal amount: $2.64
(b) A-2 Notes: $755,826.33
per $1,000 original principal amount: $2.88
(c) A-3 Notes: $552,420.00
per $1,000 original principal amount: $2.97
(d) A-4 Notes: $447,142.50
per $1,000 original principal amount: $3.06
(e) B Notes: $98,301.50
per $1,000 original principal amount: $3.05
(f) Certificates: $0.00
per $1,000 original principal amount: $0.00
(g) Total: $2,295,070.48
(3) After giving effect to distributions on this Payment
Date:
(a) (i) outstanding principal amount of A-1 Notes:
$148,912,367.43
(ii) A-1 Note Pool Factor: 0.8900919
(b) (i) outstanding principal amount of A-2 Notes:
$262,000,000.00
(ii) A-2 Note Pool Factor: 1.0000000
(c) (i) outstanding principal amount of A-3 Notes:
$186,000,000.00
(ii) A-3 Note Pool Factor: 1.0000000
(d) (i) outstanding principal amount of A-4 Notes:
$146,125,000.00
(ii) A-4 Note Pool Factor: 1.0000000
<PAGE>
(e) (i) outstanding principal amount of B Notes:
$31,451,317.17
(ii) B Note Pool Factor: 0.9758398
(f) (i) Certificate Balance: $11,794,243.94
(ii) Certificate Pool Factor: 0.9757928
(4) Note Value at end of related Collection Period:
$786,282,929.37
(5) Pool Balance (excluding accrued interest) at the
end of the related Collection Period: $779,369,863.87
(6) Amount of Servicing Fee: $666,750.09
per $1,000 original principal amount: 0.8274984
(7) Amount of Administration Fee: $100.00
(8) Aggregate Purchase Amounts for Collection Period: $0.00
(9) Amount in Reserve Account: $15,725,658.59
Specified Reserve Account Balance: $15,725,658.59
(10) Aggregate amount of Realized Losses for the
Collection Period: ($0.00)
(11) Amount of Payments that are more than 60 days
past due: $16,881.00
EXHIBIT 99.3
JOHN DEERE OWNER TRUST 1999-A
SERVICER'S CERTIFICATE
$167,300,000 Class A-1 4.9988% Asset Backed Notes
due June 19, 2000
$262,000,000 Class A-2 5.4660% Asset Backed Notes
due August 15, 2001
$186,000,000 Class A-3 5.9400% Asset Backed Notes
due October 15, 2002
$146,125,000 Class A-4 6.1200% Asset Backed Notes
due October 17, 2005
$32,230,000 6.100% Class B Asset Backed Notes
due October 17, 2005
$12,086,832 Asset Backed Certificates
Payment Date: 15-Jun-99
(1) Servicing Fee: $666,750.09
Servicing Fee Shortfall: 0
(2) Administration Fee: $100.00
Administration Fee Shortfall: 0
(3) Total Distribution Amount: $24,732,602.67
(4) Noteholders' Interest Distributable Amount
applicable to A-1 Notes: $441,380.15
Noteholders' Interest Carryover Shortfall
applicable to A-1 Notes: $0.00
(5) Noteholders' Interest Distributable Amount
applicable to A-2 Notes: $755,826.33
Noteholders' Interest Carryover Shortfall
applicable to A-2 Notes: $0.00
(6) Noteholders' Interest Distributable Amount
applicable to A-3 Notes: $552,420.00
Noteholders' Interest Carryover Shortfall
applicable to A-3 Notes: $0.00
(7) Noteholders' Interest Distributable Amount
applicable to A-4 Notes: $447,142.50
Noteholders' Interest Carryover Shortfall
applicable to A-4 Notes: $0.00
(8) Noteholders' Interest Distributable Amount
applicable to B Notes: $98,301.50
Noteholders' Interest Carryover Shortfall
applicable to B Notes: $0.00
(9) Noteholders' Interest Distributable Amount
deposited into Note Distribution Account: $2,295,070.48
Noteholders' Interest Carryover Shortfall: $0.00
(10) A-1 Noteholders' Monthly Principal Distributable
Amount: $18,387,632.57
% of Principal Distribution Amount applicable
to A-1 Noteholders: 94.49%
A-1 Noteholders' Principal Carryover Shortfall: $0.00
A-1 Noteholders' Principal Distributable
Amount: $18,387,632.57
(11) A-2 Noteholders' Monthly Principal Distributable
Amount: $0.00
% of Principal Distribution Amount applicable
to A-2 Noteholders: 0.00%
A-2 Noteholders' Principal Carryover Shortfall: $0.00
A-2 Noteholders' Principal Distributable Amount: $0.00
(12) A-3 Noteholders' Monthly Principal Distributable
Amount: $0.00
% of Principal Distribution Amount applicable to
A-3 Noteholders: 0.00%
A-3 Noteholders' Principal Carryover Shortfall: $0.00
A-3 Noteholders' Principal Distributable Amount: $0.00
(13) A-4 Noteholders' Monthly Principal Distributable
Amount: $0.00
% of Principal Distribution Amount applicable
to A-4 Noteholders: 0.00%
A-4 Noteholders' Principal Carryover Shortfall: $0.00
A-4 Noteholders' Principal Distributable Amount: $0.00
(14) B Noteholders' Monthly Principal Distributable
Amount: $778,682.83
% of Principal Distribution Amount applicable
to B Noteholders: 4.00%
B Noteholders' Principal Carryover Shortfall: $0.00
B Noteholders' Principal Distributable
Amount: $778,682.83
(15) Noteholders' Principal Distribution Amount
deposited into Note Distribution Account: $19,166,315.39
Noteholders' Principal Carryover Shortfall: $0.00
<PAGE>
(16) Noteholders' Distributable Amount: $21,461,385.87
(17) Amount to be withdrawn from the Reserve Account
and deposited into Note Distribution Account: $0.00
Interest Amount included above: $0.00
Principal Amount included above: $0.00
(18) Deposit to Reserve Account from Collection Account
to increase the amount on deposit in the Reserve
Account to the Specified Reserve Account Balance: $0.00
(19) Certificateholders' Interest Distributable Amount: $0.00
Certificateholders' Interest Carryover Shortfall: $0.00
(20) Certificateholders' Principal Distributable Amount
applicable to current period: $292,588.06
% of Principal Distribution Amount applicable
to Certificate holders: 1.50%
Certificateholders' Principal Carryover Shortfall: $0.00
Certificateholders' Principal Distributable
Amount: $292,588.06
(21) Certificateholders' Distributable Amount: $292,588.06
(22) Deposit to Reserve Account (from excess
collections): $2,311,778.65
(23) Specified Reserve Account Balance
(after all distributions and adjustments): 15,725,658.59
(24) Reserve Account Balance over the Specified
Reserve Account Balance (before any
distribution of excess): $18,426,615.65
(25) Excess Reserve Account Balance Distributable
to Seller (5.05(b)(i) or (ii)): $2,700,957.06
(26) Note Value as of the end of the related
Collection Period: $786,282,929.37
(27) Pool Balance (excluding Accrued Interest)
as of close of business on the last day of
the related Collection Period: $779,369,863.87
(28) After giving effect to all distributions on
such Payment Date:
Outstanding Principal Balance of A-1 Notes:
$148,912,367.43
A-1 Note Pool Factor: 0.8900919
Outstanding Principal Balance of A-2
Notes: $262,000,000.00
A-2 Note Pool Factor: 1.0000000
Outstanding Principal Balance of A-3
Notes: $186,000,000.00
A-3 Note Pool Factor: 1.0000000
Outstanding Principal Balance of A-4
Notes: $146,125,000.00
A-4 Note Pool Factor: 1.0000000
Outstanding Principal Balance of B Notes: $31,451,317.17
B Note Pool Factor: 0.9758398
Outstanding Principal Balance of the
Certificates: $11,794,243.94
Certificate Pool Factor: 0.9757928
(29) Aggregate Purchase Amounts for related Collection
Period: $0.00
(30) Reserve Account Balance after giving effect to
all distributors: $15,725,658.59
(31) Specified Reserve Account Balance (after all
distributions and adjustments): $15,725,658.59
(32) Amount of Realized Losses for the related
collection period: ($0.00)
(33) Amount of Payments that are more than 60 days
past due: $16,881.00
