Form of Sale and Servicing Agreement
--------------------------------------------------------------------------------
SALE AND SERVICING AGREEMENT
among
XXXX DEERE OWNER TRUST 200X
Issuing Entity
XXXX DEERE RECEIVABLES, INC.
Seller
and
XXXX DEERE CAPITAL CORPORATION
Servicer
Dated as of o, 200X
--------------------------------------------------------------------------------
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
SECTION 2.02 Waiver...........................................................15
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties of Seller.........................15
SECTION 3.02 Repurchase by Seller upon Breach.................................16
SECTION 3.03 Custody of Receivable Files......................................16
SECTION 3.04 Duties of Servicer as Custodian..................................17
SECTION 3.05 Instructions; Authority to Act...................................17
SECTION 3.06 Custodian's Indemnification......................................17
SECTION 3.07 Effective Period and Termination.................................18
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer...............................................18
SECTION 4.02 Collection of Receivable Payments................................19
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............................................20
SECTION 4.07 Purchase by Servicer of Receivables upon Breach..................20
SECTION 4.08 Servicing Fee....................................................20
SECTION 4.09 Servicer's Certificate...........................................20
SECTION 4.10 Annual Statement as to Compliance; Notice of Default.............21
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................................................22
i
SECTION 4.14 Appointment of Sub-Servicer......................................22
ARTICLE V
Distributions; Reserve Account;
Statements to the Certificateholder and Noteholders
SECTION 5.01 Establishment of Trust Accounts..................................22
SECTION 5.02 Collections......................................................25
SECTION 5.03 Additional Deposits..............................................25
SECTION 5.04 Distributions....................................................25
SECTION 5.05 Reserve Account..................................................26
SECTION 5.06 Statements to the Certificateholder and Noteholders..............27
SECTION 5.07 Net Deposits.....................................................28
SECTION 5.08 Interest Rate Swap Agreements....................................28
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller........................................29
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 Notes; Retention of the Certificate...............32
SECTION 6.07 Right of Seller to Repurchase Receivables........................32
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer......................................32
SECTION 7.02 Indemnities of Servicer..........................................34
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...................36
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.................................................37
SECTION 8.02 Appointment of Successor.........................................38
SECTION 8.03 Notification to Noteholders and the Certificateholder............39
SECTION 8.04 Waiver of Past Defaults..........................................39
ii
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......................................................44
SECTION 10.05 Limitations on Rights of Others.................................44
SECTION 10.06 Severability....................................................44
SECTION 10.07 Separate Counterparts...........................................44
SECTION 10.08 Headings........................................................44
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..45
SECTION 10.13 Additional Securities...........................................45
SCHEDULES
SCHEDULE A - Schedule of Receivables
SCHEDULE B - Location of Receivable Files
SCHEDULE C - List of Fiscal Months
SCHEDULE D - Servicer's Certificate
SCHEDULE E - Statement to Certificateholder
SCHEDULE F - Statement to Noteholders
SCHEDULE G - Payment and Deposit Instructions to Indenture Trustee
iii
This SALE AND SERVICING AGREEMENT dated as of o, 200X, among
XXXX DEERE OWNER TRUST 200X, a Delaware statutory trust (the "Issuing Entity"),
XXXX DEERE RECEIVABLES, INC., a Nevada corporation (the "Seller"), and XXXX
DEERE CAPITAL CORPORATION, a Delaware corporation ("JDCC" or the "Servicer").
WHEREAS the Issuing Entity desires to purchase a portfolio of
receivables arising in connection with agricultural [, forestry, commercial and
consumer equipment,] and construction equipment retail installment sale and loan
contracts generated by JDCC in the ordinary course of business;
WHEREAS the Seller has purchased such receivables from JDCC
and desires to sell such receivables to the Issuing Entity; and
WHEREAS JDCC 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 o, 200X among the Trust, JDCC, as Administrator, and [The Bank of
New York], as indenture trustee, as the same may be amended and supplemented
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).
Form of Sale and Servicing Agreement
"Certificate Balance" equals, initially, 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 (a)
zero on any Payment Date on which the outstanding principal balance of the Notes
has not been reduced to zero after taking into account distributions on such
Payment Date and (b) on each Payment Date on and after the Payment Date on which
the outstanding principal balance of the Notes is reduced to zero, an amount
equal to the Principal Distributable Amount minus the principal payment, if any,
on the Notes on such Payment Date.
"Class A-1 Note Final Payment Date" means o, 20XX.
"Class A-1 Note Interest Rate" means a rate per annum equal to
o %.
"Class A-1 Notes" means the Class A-1 Notes (as defined in the
Indenture).
"Class A-2 Note Final Payment Date" means o, 20XX.
"Class A-2 Note Interest Rate" means a rate per annum equal to
o %.
"Class A-2 Notes" means the Class A-2 Notes (as defined in the
Indenture).
"Class A-3 Note Final Payment Date" means o, 20XX.
"Class A-3 Note Interest Rate" means a rate per annum equal to
o %.
"Class A-3 Notes" means the Class A-3 Notes (as defined in the
Indenture).
"Class A-4 Note Final Payment Date" means o, 20XX.
"Class A-4 Note Interest Rate" means a rate per annum equal to
o %.
"Class A-4 Notes" means the Class A-4 Notes (as defined in the
Indenture).
"Class B Note Final Payment Date" means o, 20XX.
"Class B Note Interest Rate" means a rate per annum equal to
o %.
"Class B Notes" means the Class B Notes (as defined in the
Indenture).
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the Treasury Regulations promulgated thereunder.
Form of Sale and Servicing Agreement
2
"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 [ ]
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 [, forestry, commercial and
consumer equipment,] 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[ 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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).
["Counterparties" means the counterparties under the Interest
Rate Swap Agreements.]
"Current 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.
"Cut-off Date" means o, 200X.
"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 Article 8 of the UCC or the
Federal Book-Entry Regulations means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-102(47) 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 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
Form of Sale and Servicing Agreement
3
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 Issuing Entity 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 Issuing Entity thereof
agreeing that it will comply with instructions originated by the
Indenture Trustee without further consent of the registered owner
thereof;
(e) 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 (d) 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)
Form of Sale and Servicing Agreement
4
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); and
(f) 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 nominees, indicating
that securities are credited to the appropriate Trust Account and held
in trust pursuant to and as provided in this Agreement.
"Depositor" means 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 State (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.
"Eligible Institution" means (a) the corporate trust
department of the Indenture Trustee or the Owner Trustee, or (b) a depository
institution organized under the laws of the United States of America or any
State (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 and Aaa or
better by Moody's or (B) a short-term unsecured debt rating or a certificate of
deposit rating of A-1+ by Standard & Poor's and P-1 or better by Moody's, 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, U.S. Bank Trust National
Association 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:
(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
Form of Sale and Servicing Agreement
5
or any State (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 and Moody's, 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 and Moody's 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 A-1 from Moody's and at
least A+ by S&P.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Face Amount" means with respect to a Receivable as of the
close of business on the last day of a Collection Period, the gross amount of
all unpaid installments scheduled to be paid on each contract, including
unearned finance and other charges.
"FDIC" means the Federal Deposit Insurance Corporation.
"Financed Equipment" means an item of agricultural,
construction, commercial and consumer, or forestry equipment, together with all
accessions thereto, which was purchased by an Obligor pursuant to the terms of
the related Contract and securing such 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
Form of Sale and Servicing Agreement
6
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 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.
"Indenture" means the Indenture dated as of o, 200X, between
the Issuing Entity 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 $o.
"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.
"Interest Rate Swap Agreement" means an interest rate swap
agreement between the Trust and a Counterparty in a form satisfactory to the
Trust and the Counterparty that shall have satisfied the Rating Agency
Condition.
"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 Xxxx 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.
Form of Sale and Servicing Agreement
7
"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.
"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 Xxxxx'x Investors Service, Inc., or its
successor.
["Net Swap Payments" means, for any Payment Date, the net
amount payable by the Trust pursuant to the Interest Rate Swap Agreements,
excluding any Swap Termination Payments.]
["Net Swap Receipts" means, for any Payment Date, the net
amount payable by the Counterparties pursuant to the Interest Rate Swap
Agreements, excluding any Swap Termination Payments.]
"Note Distribution Account" means the account designated as
such, established and maintained pursuant to Section 5.01.
"Note Interest Rate" means the per annum interest rate borne
by a Note.
"Note Monthly Principal Distributable Amount" means, for any
Payment Date, the Principal Distributable Amount; provided, that the Note
Monthly Principal Distributable Amount shall not exceed the aggregate
outstanding principal balance of the Notes; provided, further, that on (i) the
Class A-1 Note Final Payment Date, the Note Monthly Principal Distributable
Amount will at least equal the outstanding principal balance of the Class A-1
Notes, (ii) the Class A-2 Note Final Payment Date, the Note Monthly Principal
Distributable Amount will at least equal the outstanding principal balance of
the Class A-2 Notes, (iii) the Class A-3 Note Final Payment Date, the Note
Monthly Principal Distributable Amount will at least equal the outstanding
principal balance of the Class A-3 Notes, (iv) the Class A-4 Note Final Payment
Date, the Note Monthly Principal Distributable Amount will at least equal the
outstanding principal balance of the Class A-4 Notes, and (v) the Class B Note
Final Payment Date, the Note Monthly Principal Distributable Amount will at
least equal the outstanding principal balance of the Class B Notes.
"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 [o]%. For purposes of calculating Note Value, in the case of a
defaulted Receivable: (a) prior to the time at which such defaulted Receivable
becomes a Repossessed Receivable or a 180-day Receivable, the Scheduled Payments
on such Receivable will be computed based on the amounts that would have been
the Scheduled Payments had such default not occurred; (b) at the earlier of the
time at which such defaulted Receivable becomes a Repossessed Receivable or a
180-day Receivable,
Form of Sale and Servicing Agreement
8
the amount added to the Note Value with respect to such Receivable will be the
estimated realizable value of such Receivable, as determined by the Servicer in
accordance with its normal servicing procedures 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 Monthly Principal Distributable Amount.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, and the Class B Notes.
"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.
"180-day Receivable", with respect to any Collection Period,
means any Receivable as to which a Scheduled Payment is 180 days or more past
due by the last day of such Collection Period and which has not become a
Liquidated Receivable or a Repossessed Receivable; provided that a Receivable
shall cease to be a 180-day Receivable if the Servicer subsequently receives
payment in full of each Scheduled Payment that was previously 180 days or more
past due on such Receivable.
"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 [U.S. Bank Trust National Association]
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
o, 200X.
"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) less the aggregate
Write-Down Amount as of the last day of such Collection Period.
"Pool Face Amount" as of the close of business on the last day
of a Collection Period, means the aggregate Face Amount of the Receivables
(excluding Purchased Receivables
Form of Sale and Servicing Agreement
9
and Liquidated Receivables) less the aggregate Write-Down Amount as of the last
day of such Collection Period.
"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, if applicable, on account of principal on such immediately preceding
Payment Date.
"Principal Distributable Amount" means, with respect to any
Payment Date, the sum of (i) the Current Principal Distribution Amount for such
Payment Date and (ii) the Principal Carryover Shortfall for such Payment Date.
"Purchase Agreement" means the Purchase Agreement dated as of
o, 200X, between the Seller and JDCC, as the same may be amended and
supplemented from time to time.
"Purchase Amount" means with respect to a Receivable, the
amount, as of the close of business on the last day of a Collection Period,
required to prepay in full the Receivable under the terms thereof including
interest to the last day of such Collection Period.
"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 or 6.07.
"Rating Agencies" means Xxxxx'x and Standard & Poor's. 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.
"Receivable" means any retail installment sale or loan
contract listed on Schedule A hereto.
"Receivable Files" means the documents specified in Section
3.03.
Form of Sale and Servicing Agreement
10
"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.
"Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Regulation S-X" means Regulation S-X, 17 C.F.R.
ss.ss.210.1-01--210.12-29, as such may be amended from time to time, and subject
to such clarification and interpretation as may be provided by the Commission or
its staff from time to time.
"Repossessed Receivable", with respect to any Collection
Period, means any defaulted Receivable as to which the Financed Equipment
securing such defaulted Receivable has been repossessed by the last day of such
Collection Period.
"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, $o.
["Sales Companies" means, collectively, Deere and Deere
Construction & Forestry Company.]
"Scheduled Payment" on a Receivable, means the scheduled
periodic payment of principal and interest required to be made by the Obligor.
"Seller" means Xxxx 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.
"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.
Form of Sale and Servicing Agreement
11
"Specified Reserve Account Balance" means, except as otherwise
provided in the following paragraph, with respect to any Payment Date, the
lesser of (a) $o, which is o% of the initial Note Value and (b) the outstanding
principal amount of the Notes immediately preceding such Payment Date less the
Note Monthly Principal Distributable Amount to be deposited in the Note
Distribution Account on such Payment Date; provided, that the percentage in
clause (a) of this definition will be reduced to o% (and shall remain at such
reduced percentage for each Payment Date thereafter) on the first to occur of
the Payment Date in o, 200X, o, 200X or o, 200X on which the Average Delinquency
Ratio and the Cumulative Net Loss Ratio applicable to the Receivables as of such
Payment Date are less than the percentages set forth opposite such Payment Date
below:
Payment Date
occurring in: Average Delinquency Ratio Cumulative Net Loss Ratio
------------- ------------------------- -------------------------
o, 200X o% o%
o, 200X o o
o, 200X o o
Upon payment of all interest and principal due on the Notes,
the Specified Reserve Account Balance shall be zero. 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 and provided, further, the Owner Trustee obtains an Opinion of Counsel
confirming that the reduction or modification will not change the tax
classification of the Notes as indebtedness. The definitions of certain terms
used in the definition of Specified Reserve Account Balance are set forth below.
"Average Delinquency Ratio" means, as of any Payment Date, the
average of the Delinquency Ratios for the three immediately preceding Collection
Periods.
"Delinquency Ratio" for any Collection Period means the ratio,
expressed as a percentage of (a) the amount of all Scheduled Payments in respect
of Receivables that are 60 days or more past due (other than Purchased
Receivables and Liquidated Receivables) as of the end of such Collection Period,
determined in accordance with the Servicer's normal practices and procedures, to
(b) the Pool Balance as of the last day of such Collection Period.
"Cumulative Net Loss Ratio" means, for any Payment Date, the
ratio, expressed as a percentage, of (a) the aggregate Realized Losses on the
Receivables from the Cut-Off Date through the last day of the Collection Period
immediately preceding such Payment Date to (b) the Initial Pool Balance.
"Realized Losses" means, for any Collection Period, the sum of
(a) in the case of each Receivable that became a Liquidated Receivable during
such Collection Period, the difference between (i) and (ii), where (i) is the
Principal Balance plus accrued and unpaid interest on such Receivable less the
Write-Down Amount for such Receivable (if such Receivable was a
Form of Sale and Servicing Agreement
12
180-day Receivable or Repossessed Receivable at the time such Receivable became
a Liquidated Receivable), if any, and (ii) is the Liquidation Proceeds received
with respect to such Receivable during such Collection Period, (b) in the case
of any Receivable that became a 180-day Receivable or Repossessed Receivable
during such Collection Period, the Write-Down Amount, if any, for such
Receivable and (c) in the case of each other 180-day Receivable or Repossessed
Receivable, the amount of the adjustment, if any, to the Write-Down Amount for
such Receivable.
"Write-Down Amount" means, for any Collection Period for any
180-day Receivable or Repossessed Receivable, the excess of (a) the Principal
Balance plus accrued and unpaid interest of such Receivable as of the last day
of the Collection Period during which such Receivable became a 180-day
Receivable or Repossessed Receivable, as the case may be, over (b) the estimated
realizable value of such Receivable, as determined by the Servicer in accordance
with its normal servicing procedures for the related Collection Period, which
amount may be adjusted to zero by the Servicer in accordance with its normal
servicing procedures if such Receivable has ceased to be a 180-day Receivable as
provided in the definition of "180-day Receivable".
"Standard & Poor's" means Standard & Poor's, a division of The
XxXxxx-Xxxx 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.]
["Swap Termination Payments" means any termination payment due
under the terms of the Interest Rate Swap Agreements.]
"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 Issuing Entity.
"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 o,
200X, 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
Form of Sale and Servicing Agreement
13
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 Trust Services 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.
"UCC" means the Uniform Commercial Code.
SECTION 1.02 Other Definitional Provisions. Capitalized terms
used herein and not otherwise defined herein have the meanings assigned to them
in the Indenture.
(a) 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.
(b) 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 in the United
States. 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 in the United
States, the definitions contained in this Agreement or in any such certificate
or other document shall control.
(c) 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."
(d) 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 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 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-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the
Class B Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest on the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class B Notes in respect of a Payment Date will accrue
from and including the 15th day of the month preceding such Payment
Form of Sale and Servicing Agreement
14
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 Issuing Entity's delivery to or upon the order of the Seller of $o, the
issuance to the Seller of the Certificate and the waiver, termination and
release set forth in 2.02 below, the Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Issuing Entity, without recourse (subject
to the obligations herein):
(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.
SECTION 2.02 Waiver. The Issuing Entity hereby waives,
releases and terminates (i) any rights it may have in any equipment (other than
the Financed Equipment) as security for any obligations owing to it under the
Receivables, (ii) any rights it may have in any property as security for any
Receivable other than the rights relating to the related Financed Equipment and
the proceeds thereof and (iii) any rights it may have to apply moneys received
under a receivable that was not sold to the Issuing Entity pursuant to Section
2.01. Notwithstanding anything to the contrary contained herein, the foregoing
in no way constitutes a waiver, release or termination of any of the rights of
the Issuing Entity with respect to the Financed Equipment and the rights related
to the Financed Equipment.
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 Issuing Entity 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
Form of Sale and Servicing Agreement
15
assignment of the Receivables to the Issuing Entity 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 Issuing Entity 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 Issuing Entity 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 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 Issuing Entity, 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
Issuing Entity hereby appoints
Form of Sale and Servicing Agreement
16
the Servicer, and the Servicer hereby accepts such appointment, to act as the
agent of the Issuing Entity 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 Issuing Entity 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 Issuing Entity and maintain such accurate and complete
accounts, records and computer systems pertaining to each Receivable File as
shall enable the Issuing Entity to comply with this Agreement. In performing its
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 Issuing Entity or the Indenture Trustee to verify the
accuracy of the Servicer's record keeping. The Servicer shall promptly report to
the Issuing Entity 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 Issuing Entity, 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 Issuing Entity
and the Indenture Trustee by written notice not later than 90 days after any
change in location. The Servicer shall make available to the Issuing Entity 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 Issuing Entity or the Indenture Trustee shall instruct.
Form of Sale and Servicing Agreement
17
(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 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 Issuing Entity (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
Form of Sale and Servicing Agreement
18
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 then current 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 Issuing Entity, 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 Issuing Entity (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 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 in accordance with its customary collection procedures with
respect to all comparable equipment receivables that it services for itself or
others; provided, however, that if the Servicer extends the date for final
payment by the Obligor of any Receivable beyond o, 20XX, it shall promptly
purchase the Receivable from the Issuing Entity in accordance with the terms of
Section 4.07; provided, further, that the Servicer shall not extend the final
Scheduled Payment for the sole purpose of purchasing the Receivables from the
Issuing Entity. 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 and
shall not agree to waive the repayment of the Amount Financed, or any portion
thereof, 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
Issuing Entity, 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 pursuant to customary servicing procedures that
Form of Sale and Servicing Agreement
19
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 Servicer is hereby authorized
to exercise its discretion consistent with its customary servicing procedures in
servicing defaulted Receivables so as to maximize the net collections of such
defaulted Receivables. The Servicer shall not be liable for any such exercise of
its discretion made in good faith and in accordance with such servicing
procedures. The foregoing shall be subject to the provision that, in any case in
which the Financed Equipment shall have suffered damage, consistent with its
customary servicing procedures the Servicer may but shall not be required to
expend funds in connection with the repair or the repossession of such Financed
Equipment.
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 Issuing Entity and the
Indenture Trustee in the event of the relocation of the 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 Issuing Entity, the
Indenture Trustee, the Certificateholder 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 of 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 Issuing Entity,
the Indenture Trustee, the Certificateholder or the Noteholders in any
Receivable or as otherwise provided in Section 4.02, the Servicer shall purchase
[or shall cause one or more of the Sales Companies to purchase] such Receivable.
In consideration of the purchase of any such Receivable pursuant to either of
the two preceding sentences, the Servicer shall remit [or shall cause one or
more of the Sales Companies to remit] the Purchase Amount in the manner
specified in Section 5.03. Subject to Section 7.02, the sole remedy of the
Issuing Entity, the Owner Trustee, the Indenture Trustee, the Certificateholder
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 [or cause one or more of the
Sales Companies to purchase] Receivables pursuant to this
Form of Sale and Servicing Agreement
20
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 subject to the order and priority set forth in
Section 5.04. 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
Section 5.04 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 Issuing Entity and the
Indenture Trustee, on or before [ ] of each calendar year, a statement of
compliance signed by an authorized officer of the Servicer providing such
information as required under Item 1123 of Regulation AB.
(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 Business Days thereafter,
written notice in an Officer's 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 Report on Assessment of Compliance and Annual
Independent Certified Public Accountants' Report.
(a) The Servicer shall deliver to the Issuing Entity, the
Owner Trustee and the Indenture Trustee, on or before [ ] of each calendar year,
a report signed by an authorized officer of the servicer regarding the
Servicer's assessment of compliance with the applicable servicing criteria
specified in Item 1122 of Regulation AB during the immediately preceding
calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act.
(b) The Servicer shall cause a firm of registered public
accountants, which may also render other services to the Servicer, the Seller,
JDCC or any other Affiliate of Deere, to deliver to the Issuing Entity, the
Owner Trustee and the Indenture Trustee on or before [ ] a report that attests
to, and reports on, the Servicer's assessment of compliance delivered pursuant
to Section 4.11(a), which attestation report shall be made in accordance with
the requirements of Rules 1-02(a)(3) and 2-02(g) of Regulation S-X.
Form of Sale and Servicing Agreement
21
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 imposed on the Servicer and expenses incurred in connection with
distributions and reports to the Certificateholder and the 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 Issuing Entity, 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 Issuing Entity, the Owner Trustee, the
Indenture Trustee, the Certificateholder or the Noteholders shall have any
responsibility therefor.
ARTICLE V
Distributions; Reserve Account;
Statements to the Certificateholder 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
Form of Sale and Servicing Agreement
22
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
Noteholders, the Certificateholder and the Counterparties, 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.
(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, the Certificateholder and the
Counterparties, 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.
(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" (as defined in Section 9-102(a)(29) of the UCC) shall be held solely
in the Eligible Deposit Accounts and (1) each such Eligible Deposit Account
shall be subject to the exclusive custody and control of the Indenture Trustee,
the Indenture Trustee shall have sole signature authority with respect thereto
Form of Sale and Servicing Agreement
23
and to the extent the Indenture Trustee ceases to be an Eligible Institution,
the Indenture Trustee shall be the related Eligible Institution's "customer" and
shall have "control" (in each case within the meaning of Section 9-104 of the
UCC) with respect to such Eligible Deposit Account, (2) the Eligible Institution
at which such Eligible Deposit Account is maintained shall be a "bank" as
defined in Section 9-102(a)(8) of the UCC and shall agree to maintain such
Eligible Deposit Account as a "deposit account" as such term is defined in
Section 9-102(a)(29) of the UCC, and (3) the "bank's jurisdiction" (within the
meaning of Section 9-304 of the UCC) with respect to such Eligible Deposit
Account shall be the State of New York;
(B) any Trust Account Property that is held in "securities
accounts" (as defined in Section 8-501(a) of the UCC) shall be held solely in
Eligible Deposit Accounts; and (1) the Eligible Institution at which each such
Eligible Deposit Account is maintained shall be a "securities intermediary" as
defined in Section 8-102(a)(14) of the UCC and shall agree to maintain such
Eligible Deposit Account as a "securities account" as such term is defined in
Section 8-501(a) of the UCC, (2) the Eligible Institution at which such Eligible
Deposit Account is maintained shall treat the Indenture Trustee as entitled to
exercise the rights that comprise any "financial asset" (as defined in Section
8-102(a)(9) of the UCC) credited to the account, and if at any time such
Eligible Institution shall receive an "entitlement order" (within the meaning of
Section 8-102(a)(8) of the UCC) issued by the Indenture Trustee and relating to
such Eligible Deposit Account, such Eligible Institution shall comply with such
entitlement order without further consent by the Issuing Entity or any other
Person, (3) the Eligible Institution at which such Eligible Deposit Account is
maintained shall agree with the Indenture Trustee that each item of property
(whether investment property, financial asset, security, instrument or cash)
credited to such Eligible Deposit Account shall be treated as a "financial
asset" within the meaning of Section 8-102(a)(9) of the UCC, (4) the "securities
intermediaries' jurisdiction" (within the meaning of Section 8-110 of the UCC)
with respect to such Eligible Deposit Account shall be the State of New York and
(5) the Eligible Institution at which such Eligible Deposit Account is
maintained shall agree with the Indenture Trustee that in the event that such
securities intermediary has or subsequently obtains by agreement, by operation
of law or otherwise, a security interest in such Eligible Deposit Account or any
financial asset credited thereto, the securities intermediary agrees that such
security interest shall be subordinate to the security interest of the Indenture
Trustee and that the financial assets and other items deposited to such an
Eligible Deposit Account will not be subject to deduction, set-off, banker's
lien, or any other right in favor of any person other than the Indenture
Trustee;
(C) 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;
(D) 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
Form of Sale and Servicing Agreement
24
(E) any Trust Account Property that is an "uncertificated
security" under Article 8 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 and Prime-1 by
Moody's, 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.
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 pursuant to Section 4.07, 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
Form of Sale and Servicing Agreement
25
Payment Date. Distributions from the Total Distribution Amount shall be made by
the Indenture Trustee, to the extent available, in the following order of
priority:
(i) to the Servicer (if JDCC or an Affiliate is not the
Servicer), the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods:
(ii) to the Administrator under the Administration Agreement,
the Administration Fee and all unpaid Administration Fees from prior
Collection Periods;
(iii) to the Note Distribution Account, the Net Swap Payments
(including interest on any overdue Net Swap Payments), if any;
(iv) to the Note Distribution Account, the accrued and unpaid
interest on each Class of Class A Notes for such Payment Date and the
Class A Swap Termination Payments payable by the Issuing Entity, if
any;
(v) to the Note Distribution Account, the accrued and unpaid
interest on Class B Notes for such Payment Date and the Class B Swap
Termination Payments payable by the Issuing Entity, if any;
(vi) to the Note Distribution Account, the Note Monthly
Principal Distributable Amount:
(vii) to the Reserve Account, the amount, if any, necessary to
increase the amounts on deposit in the Reserve Account to the Specified
Reserve Account Balance;
(viii) to the Servicer (if JDCC or an Affiliate is the
Servicer), the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods;
(ix) to the Certificate Distribution Account, the Certificate
Monthly Principal Distributable Amount, if any; and
(x) to the Reserve Account, the Total Distribution Amount
remaining.
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.
Form of Sale and Servicing Agreement
26
(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), for the Indenture Trustee to forward to each Noteholder of record,
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
or Schedule F, as applicable, 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, Note Value and Pool Face Amount 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 Notes 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;
Form of Sale and Servicing Agreement
27
(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;
(ix) the amount of all Scheduled Payments in respect of
Receivables 60 days or more past due, and such amount as a percentage
of the Pool Balance, as of the close of business on the last day of the
preceding Collection Period; and
(x) the Face Amount of Receivables with any Scheduled Payments
60 days or more past due, and such amount as a percentage of the Pool
Face Amount, as of the close of business on the last day of the
preceding Collection Period.
(xi) Amount of Net Swap Payments or Net Swap Receipts:
(xii) Amount of Swap Termination Payments paid by the Issuing
Entity:
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) Each amount set forth pursuant to subclause (i), (ii) or
(iv) of clause 5.06(a) 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.
SECTION 5.08 Interest Rate Swap Agreements.
(a) The Issuing Entity shall on or prior to the Closing Date
enter into the Interest Rate Swap Agreements with the Counterparties for the
benefit of the Noteholders and Certificateholders, in form and substance
reasonably acceptable by the Issuing Entity, the Counterparties and the
Indenture Trustee, such that the aggregate notional amount under the
Form of Sale and Servicing Agreement
28
Interest Rate Swap Agreements shall, at any time, be equal to the Outstanding
Amount of the Class [o] Notes at such time. Net Swap Receipts shall be deposited
by the Indenture Trustee into the Collection Account on the day received and
shall constitute part of the Total Distribution Amount. On any Payment Date when
there shall be a Net Swap Payment, the Indenture Trustee shall pay such Net Swap
Payment from the Total Distribution Amount.
(b) The Servicer, when required under any Interest Rate Swap
Agreement, shall cause the Issuing Entity to enter into a replacement Interest
Rate Swap Agreement.
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller. The Seller makes the
following representations on which the Issuing Entity 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
Issuing Entity and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(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 Issuing Entity and the Seller and shall
have duly authorized such sale and assignment to the Issuing Entity 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
Form of Sale and Servicing Agreement
29
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 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);
Form of Sale and Servicing Agreement
30
(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
Issuing Entity, 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 Issuing Entity, the Owner Trustee or the Indenture Trustee or their
officers, directors, and agents with respect to the sale of the Receivables to
the Issuing Entity 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 case of the Issuing
Entity, 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
Issuing Entity, 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 Issuing Entity'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,
Form of Sale and Servicing Agreement
31
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
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 Notes; Retention of the
Certificate. The Seller and any Affiliate thereof may in its individual or any
other capacity become the owner or pledgee of the 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. The Seller shall retain and
not transfer the Certificate except to a successor to the Seller as provided for
in Section 6.04; provided, however, that the Seller may transfer the Certificate
to any entity if (a) such entity has provided an opinion of counsel to the
effect that such sale will not cause the Trust to be treated as a "publicly
traded partnership" under the Code and (b) in the event that such entity is an
Affiliate of the Seller, such entity has provided an Opinion of Counsel
regarding substantive consolidation of such Affiliate with Deere in the event of
a bankruptcy filing by Deere which is substantially similar to the Opinion of
Counsel provided by the Seller on the Closing Date and which may be subject to
the same assumptions and qualifications as that opinion.
SECTION 6.07 Right of Seller to Repurchase Receivables. As of
the last day of any Collection Period, the Seller has an option to repurchase
any Receivable at a purchase price equal to the Purchase Amount of such
Receivable; provided that the aggregate Principal Balance of all Receivables
repurchased by the Seller pursuant to this Section 6.07 shall not at any time in
the aggregate exceed 2.0% of the Initial Pool Balance. To exercise such option,
the Seller shall deposit pursuant to Section 5.03 in the Collection Account an
amount equal to the aggregate Purchase Amount of the repurchased Receivables.
Form of Sale and Servicing Agreement
32
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer. The Servicer makes
the following representations on which the Issuing Entity is deemed to have
relied in acquiring the Receivables. The representations speak as of the
execution and delivery of this 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 Issuing Entity 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 corporate 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 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
Form of Sale and Servicing Agreement
33
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
Issuing Entity, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholder and the Seller and any of the officers, directors and agents
of the Issuing Entity, 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
Issuing Entity, 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 Issuing Entity, not including any taxes asserted with respect to,
and as of the date of, the sale of the Receivables to the Issuing Entity 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.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuing Entity, the Owner Trustee, the Indenture Trustee, the Seller, the
Certificateholder and the Noteholders and any of the officers, directors and
agents of the Issuing Entity, 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 contained in
Form of Sale and Servicing Agreement
34
the Trust Agreement, in the case of the Owner Trustee, and contained in the
Indenture, 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 Issuing Entity or
the issuance and original sale of the Certificate and the Notes, or Federal or
other income taxes imposed on the Issuing Entity 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.
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
Form of Sale and Servicing Agreement
35
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
(if required) 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 Issuing Entity, 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.
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
Form of Sale and Servicing Agreement
36
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) continue unremedied for a
period of 60 days after the date on which written 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
Form of Sale and Servicing Agreement
37
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 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.
Form of Sale and Servicing Agreement
38
(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, on
behalf of all Noteholders (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, 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.
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.
Form of Sale and Servicing Agreement
39
(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).
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 5.06(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.
Form of Sale and Servicing Agreement
40
ARTICLE X
Miscellaneous Provisions
SECTION 10.01 Amendment. The Agreement may be amended by the
Seller, the Servicer and the Owner Trustee, 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 Certificateholder;
provided, however, that such action shall not, 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 any
class 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;
provided further that any solicitation of such consent shall disclose the
downgrading or withdrawal that would result from such amendment.
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 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
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 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.
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.
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
Form of Sale and Servicing Agreement
41
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 file (and if required, authorize) such
financing statements and cause to be authorized 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 Issuing Entity 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, corporate structure or jurisdiction of organization 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 9-506 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 new financing statements
and/or 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 jurisdiction of organization 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 or new financing statements as the case may be. The Servicer
shall at all times maintain each office from which it shall service Receivables,
and its jurisdiction of organization, within the United States of America.
(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 Issuing Entity and the
Indenture Trustee in such Receivable and that such Receivable is owned by the
Issuing Entity and has been pledged to the Indenture Trustee. Indication of the
Issuing Entity'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.
Form of Sale and Servicing Agreement
42
(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 Issuing Entity and has been pledged to the Indenture Trustee. From
and after the date of this Agreement, the Servicer shall 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.
(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.
The Indenture Trustee and its agents shall give reasonable notice of any such
inspection or audit and such inspection shall be conducted in a manner that does
not cause undue disruption or interference with the Servicer's business.
(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 Certificates 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 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 (1) 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.
Form of Sale and Servicing Agreement
43
(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 Xxxx Deere Receivables, Inc., 0 Xxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxx 00000, Attention: Manager (702-786-5914),
with a copy to Assistant Treasurer, Deere & Company, Xxx Xxxx Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000-0000 (309-765-5697), (b) in the case of the Servicer, to
Xxxx Deere Capital Corporation, 0 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxx
00000, Attention: Manager (702-786-5527), with a copy to Assistant Treasurer,
Deere & Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000-0000
(309-765-5697), (c) in the case of the Issuing Entity 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 Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (f) in the case of Standard &
Poor's, to Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance Department; or, as
to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 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
Issuing Entity, 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.
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.
Form of Sale and Servicing Agreement
44
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 Issuing Entity to the Indenture Trustee pursuant
to the Indenture for the benefit of the Noteholders of all right, title and
interest of the Issuing Entity in, to and under the Receivables and/or the
assignment of any or all of the Issuing Entity'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 Issuing
Entity, acquiesce, petition or otherwise invoke or cause the Issuing Entity to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuing Entity 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 Issuing Entity or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuing Entity.
(b) Notwithstanding any prior termination of this Agreement,
the Servicer shall not, prior to the date which is one year and one day after
there has been paid in full all debt issued by any securitization vehicle in
respect of which the Seller holds any interest, 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.
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 U.S. Bank Trust National Association
not in its individual capacity but solely in its capacity as Owner Trustee of
the Issuing Entity and in no event shall U.S. Bank Trust National Association in
its individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuing Entity 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 Issuing Entity.
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
Issuing Entity hereunder, the Owner Trustee shall be subject to,
Form of Sale and Servicing Agreement
45
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 Issuing Entity 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 Issuing Entity.
SECTION 10.13 Additional Securities. The issuance of any
securities by Xxxx Deere Receivables, Inc., other than the Notes and the
Certificate, will require satisfaction of the Rating Agency Condition.
Form of Sale and Servicing Agreement
46
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.
XXXX DEERE OWNER TRUST 200X
By: [U.S. Bank Trust National Association,]
not in its individual capacity but solely as
Owner Trustee on behalf of the Trust,
By: ___________________________________________
Name:
Title:
XXXX DEERE RECEIVABLES, INC.,
Seller,
By: ___________________________________________
Name:
Title: Assistant Secretary
XXXX DEERE CAPITAL CORPORATION,
Servicer,
By: ___________________________________________
Name:
Title: Assistant Treasurer
Form of Sale and Servicing Agreement
Acknowledged and Accepted:
[The Bank of New York,]
not in its individual
capacity but solely
as Indenture Trustee,
By: ________________________________________
Name:
Title:
Sale and Servicing Agreement
SCHEDULE A
Schedule of Receivables
(Delivered to the Trust at the Closing)
SCHEDULE B
Location of Receivable Files
Xxxxx 000
0 Xxxx Xxxxx Xxxxxx
Xxxx, Xxxxxx 00000
SCHEDULE C
LIST OF FISCAL MONTHS
FISCAL MONTH CUTOFF DATES (BY FISCAL YEAR)
--------------------------------------------------------------------------------------------------------------------------------
Fiscal Calendar 2006 2007 2008 2009 2010 2011
Month Month
1 November -- 00-Xxx-00 00-Xxx-00 00-Xxx-00 00-Xxx-00 00-Xxx-00
--------------------------------------------------------------------------------------------------------------------------------
2 December -- 24-Dec-06 23-Dec-07 28-Dec-08 27-Dec-09 26-Dec-10
--------------------------------------------------------------------------------------------------------------------------------
3 January -- 28-Jan-07 27-Jan-08 01-Feb-09 31-Jan-10 30-Jan-11
--------------------------------------------------------------------------------------------------------------------------------
4 February -- 25-Feb-07 24-Feb-08 01-Mar-09 28-Feb-10 27-Feb-11
--------------------------------------------------------------------------------------------------------------------------------
5 March 26-Mar-06 25-Mar-07 23-Mar-08 29-Mar-09 28-Mar-10 27-Mar-11
--------------------------------------------------------------------------------------------------------------------------------
6 April 30-Apr-06 29-Apr-07 27-Apr-08 03-May-09 02-May-10 01-May-11
--------------------------------------------------------------------------------------------------------------------------------
7 May 28-May-06 27-May-07 25-May-08 31-May-09 30-May-10 29-May-11
--------------------------------------------------------------------------------------------------------------------------------
8 June 25-Jun-06 24-Jun-07 22-Jun-08 28-Jun-09 27-Jun-10 26-Jun-11
--------------------------------------------------------------------------------------------------------------------------------
9 July 30-Jul-06 29-Jul-07 27-Jul-08 02-Aug-09 01-Aug-10 31-Jul-11
--------------------------------------------------------------------------------------------------------------------------------
10 August 27-Aug-06 26-Aug-07 24-Aug-08 30-Aug-09 29-Aug-10 28-Aug-11
--------------------------------------------------------------------------------------------------------------------------------
11 September 24-Sep-06 23-Sep-07 28-Sep-08 27-Sep-09 26-Sep-10 25-Sep-11
--------------------------------------------------------------------------------------------------------------------------------
12 October 31-Oct-06 31-Oct-07 31-Oct-08 31-Oct-09 31-Oct-10 31-Oct-11
--------------------------------------------------------------------------------------------------------------------------------
----------------
2012
27-Nov-11
----------------
25-Dec-11
----------------
29-Jan-12
----------------
26-Feb-12
----------------
25-Mar-12
----------------
29-Apr-12
----------------
27-May-12
----------------
24-Jun-12
----------------
29-Jul-12
----------------
26-Aug-12
----------------
23-Sep-12
----------------
31-Oct-12
----------------
SCHEDULE D
Servicer's Certificate
The undersigned hereby certify that (i) they are, respectively, a duly
elected Vice President and Assistant Secretary of Xxxx 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 o, 200X between Xxxx Deere
Owner Trust 200X, Xxxx Deere Receivables, Inc. and Xxxx Deere Capital
Corporation.
Dated: _________________________________
Name:
Title: Vice President
________________________________
Name:
Title: Assistant Secretary
Payment Date: ________________________
(1) Servicing Fee:
(2) Administration Fee:
(3) Total Distribution Amount:
(4) Net Swap Payments (including interest on any overdue Net Swap payment):
(5) Accrued and unpaid interest on each Class of Notes:
(6) Swap Termination Payments with respect to each Class of Notes:
(7) Note Monthly Principal Distributable Amount:
(8) Deposit to Reserve Account from Collection Account to increase the
amount on deposit in the Reserve Account to the Specified Reserve
Account Balance:
(9) Deposit of Excess to Reserve Account from Collection Account:
(10) Specified Reserve Account Balance (before any distributions of excess):
(11) Reserve Account Balance over the Specified Reserve Account Balance
(before any distributions of excess):
(12) Excess Reserve Account Balance distributable to Seller (5.05 (b) (i) or
(ii))
(13) Certificate Monthly Principal Distributable Amount:
(14) 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:
(15) (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:
(16) 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 Notes:
Outstanding Principal Balance of the Certificate:
(17) Aggregate amount of Purchased Receivables for related Collection
Period:
(18) Reserve Account Balance after giving effect to all distributions:
(19) Specified Reserve Account Balance (after all distributions and
adjustments):
Officer's Certificate
The undersigned hereby certify that (i) they are, respectively, a duly
elected Vice President and Assistant Secretary of Xxxx 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 o, 200X between Xxxx Deere
Owner Trust 200X, Xxxx Deere Receivables, Inc. and Xxxx 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:
Title: Vice President
______________________________
Name:
Title: Assistant Secretary
SCHEDULE E
Statement to Certificateholder
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 Notes:
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 Notes:
per $1,000 original principal amount:
(vi) Total:
(3) (a) Pool Balance at end of related Collection Period:
(b) Note Value at end of related Collection Period:
(c) Pool Face Amount at the 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 Notes:
(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) (i) Scheduled Payments of Receivables 60 days or more past due:
(ii) Scheduled Payments of Receivables 60 days or more past due as a
percent of the Pool Balance, at the end of the related Collection Period:
(10) (i) Face Amount of Receivables 60 days or more past due:
(iii) Face Amount of Receivables 60 days or more past due as a
percent of the Pool Face Amount at the end of the related Collection
Period:
(11) Amount of Net Swap Payments or Net Swap Receipts:
(12) Amount of Swap Termination Payments paid by the Issuing Entity:
SCHEDULE F
Statement for Noteholders
pursuant to Section 5.06(a)
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 Notes:
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 Notes:
per $1,000 original principal amount:
(vi) Total:
(3) (a) Pool Balance at end of related Collection Period:
(b) Note Value at end of related Collection Period:
(c) Pool Face Amount at the 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 Notes:
(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) (i) Scheduled Payments of Receivables 60 days or more past due:
(ii) Scheduled Payments of Receivables 60 days or more past due as a
percent of the Pool Balance, at the end of the related Collection
Period:
(10)(i) Face Amount of Receivables 60 days or more past due:
(ii) Face Amount of Receivables 60 days or more past due
as a percent of the Pool Face Amount at the end of
the related Collection Period:
(11) Amount of Net Swap Payments or Net Swap Receipts:
(12) Amount of Swap Termination Payments paid by the Issuing Entity:
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) Payments to Swap Counterparty: ___________________________
(iv) Accrued and unpaid interest on the Notes for such Payment Date:
____________________
(v) Note Monthly Principal Distributable Amount to be deposited into Note
Distribution Account: ____________________
(vi) Deposit to Reserve Account to increase the amounts on deposit in the
Reserve Account to the Specified Reserve Account Balance:
____________________
(vii) Certificate Monthly Principal Distributable Amount to be deposited into
Certificate Distribution Account: ____________________
(viii) Deposit to Reserve Account: ____________________
