EXHIBIT 4.3
SALE AND SERVICING AGREEMENT
among
XXXX DEERE OWNER TRUST 2001
Issuer
XXXX DEERE RECEIVABLES INC.
Seller
and
XXXX DEERE CAPITAL CORPORATION
Servicer
Dated as of November 1, 2001
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01 Definitions..........................................................................................1
SECTION 1.02 Other Definitional Provisions.......................................................................12
SECTION 1.03 Calculations........................................................................................13
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables...........................................................................13
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties of Seller............................................................13
SECTION 3.02 Repurchase by Seller upon Breach....................................................................14
SECTION 3.03 Custody of Receivable Files.........................................................................14
SECTION 3.04 Duties of Servicer as Custodian.....................................................................15
SECTION 3.05 Instructions; Authority to Act......................................................................16
SECTION 3.06 Custodian's Indemnification.........................................................................16
SECTION 3.07 Effective Period and Termination....................................................................16
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer..................................................................................16
SECTION 4.02 Collection of Receivable Payments...................................................................17
SECTION 4.03 Realization upon Receivables........................................................................17
SECTION 4.04 Physical Damage Insurance...........................................................................18
SECTION 4.05 Maintenance of Security Interests in Financed Equipment.............................................18
SECTION 4.06 Covenants of Servicer...............................................................................18
SECTION 4.07 Purchase by Servicer of Receivables upon Breach.....................................................18
SECTION 4.08 Servicing Fee.......................................................................................18
SECTION 4.09 Servicer's Certificate..............................................................................19
SECTION 4.10 Annual Statement as to Compliance; Notice of Default................................................19
SECTION 4.11 Annual Independent Certified Public Accountants' Report.............................................19
SECTION 4.12 Access to Certain Documentation and Information Regarding Receivables...............................21
SECTION 4.13 Servicer Expenses...................................................................................21
SECTION 4.14 Appointment of Sub-Servicer.........................................................................21
i
ARTICLE V
Distributions; Reserve Account;
Statements to the Certificateholder and Noteholders
SECTION 5.01 Establishment of Trust Accounts.....................................................................21
SECTION 5.02 Collections.........................................................................................24
SECTION 5.03 Additional Deposits.................................................................................24
SECTION 5.04 Distributions.......................................................................................24
SECTION 5.05 Reserve Account.....................................................................................25
SECTION 5.06 Statements to the Certificateholder and Noteholders.................................................26
SECTION 5.07 Net Deposits........................................................................................27
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller...........................................................................28
SECTION 6.02 Corporate Existence.................................................................................29
SECTION 6.03 Liability of Seller; Indemnities....................................................................30
SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of, Seller.............................30
SECTION 6.05 Limitation on Liability of Seller and Others........................................................31
SECTION 6.06 Seller May Own Notes; Retention of the Certificate..................................................31
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer.........................................................................31
SECTION 7.02 Indemnities of Servicer.............................................................................32
SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of, Servicer...........................34
SECTION 7.04 Limitation on Liability of Servicer and Others......................................................35
SECTION 7.05 JDCC Not to Resign as Servicer......................................................................36
SECTION 7.06 Servicer to Act as Administrator....................................................................36
ARTICLE VIII
Default
SECTION 8.01 Servicer Default....................................................................................36
SECTION 8.02 Appointment of Successor............................................................................37
SECTION 8.03 Notification to Noteholders and the Certificateholder...............................................38
SECTION 8.04 Waiver of Past Defaults.............................................................................38
ARTICLE IX
Termination
SECTION 9.01 Optional Purchase of All Receivables and Termination................................................38
ii
ARTICLE X
Miscellaneous Provisions
SECTION 10.01 Amendment..........................................................................................40
SECTION 10.02 Protection of Title to Trust.......................................................................41
SECTION 10.03 Notices........................................................................................... 43
SECTION 10.04 Assignment.........................................................................................43
SECTION 10.05 Limitations on Rights of Others....................................................................43
SECTION 10.06 Severability.......................................................................................43
SECTION 10.07 Separate Counterparts..............................................................................43
SECTION 10.08 Headings...........................................................................................43
SECTION 10.09 Governing Law......................................................................................44
SECTION 10.10 Assignment to Indenture Trustee....................................................................44
SECTION 10.11 Nonpetition Covenants..............................................................................44
SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee.....................................44
SECTION 10.13 Additional Securities..............................................................................45
SCHEDULES
SCHEDULE A - Schedule of Receivables
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 November 1,
2001, among XXXX DEERE OWNER TRUST 2001, a Delaware business trust (the
"Issuer"), XXXX DEERE RECEIVABLES, INC., a Nevada corporation (the "Seller"),
and XXXX DEERE CAPITAL CORPORATION, a Delaware corporation (the "Servicer").
WHEREAS the Issuer desires to purchase a portfolio of
receivables arising in connection with agricultural and construction equipment
retail installment sale and loan contracts generated by Xxxx Deere Capital
Corporation in the ordinary course of business;
WHEREAS the Seller has purchased such receivables from Xxxx
Deere Capital Corporation and desires to sell such receivables to the Issuer;
and
WHEREAS Xxxx Deere Capital Corporation desires to service such
receivables.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Administration Agreement" means the Administration Agreement
dated as of November 1, 2001 between the Trust, JDCC, as Administrator, and The
Bank of
New York, as indenture trustee, as amended from time to time.
"Administration Fee" means the fee payable to the
Administrator pursuant to Section 3 of the Administration Agreement.
"Administrator" means the administrator under the
Administration Agreement.
"Agreement" means this
Sale and Servicing Agreement, as the
same may be amended and supplemented from time to time.
"Amount Financed" with respect to a Receivable means the
amount advanced under the Receivable toward the purchase price of the related
Financed Equipment and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the
fixed annual rate of finance charges specified in the related Contract.
"Certificate" means the Certificate (as defined in the Trust
Agreement).
"Certificate Adjusted Principal Distributable Amount" means,
with respect to any Payment Date, an amount equal to the excess, if any, of (a)
the outstanding principal amount of
the Certificate (before giving effect to payments on such Payment Date) less any
Certificate Principal Carryover Shortfall over (b) the Certificate Percentage of
the outstanding Note Value as of the end of the related Collection Period;
provided, however, that if on such Payment Date any principal of the Class A-1
Notes remains outstanding, the Certificate Adjusted Principal Distributable
Amount will not exceed an amount equal to the Unscheduled Principal Payments for
such Payment Date.
"Certificate Balance" equals, initially, $34,935,802.21 and,
on each day thereafter, equals the initial Certificate Balance reduced by all
amounts allocable to principal previously distributed to the Certificateholder.
"Certificate Distribution Account" has the meaning assigned to
such term in the Trust Agreement.
"Certificateholder" has the meaning assigned to such term in
the Trust Agreement.
"Certificate Monthly Principal Distributable Amount" means,
with respect to any Payment Date the sum of (a) the Certificate Adjusted
Principal Distributable Amount and (b) the Certificate Principal Carryover
Shortfall; provided that the Certificate Monthly Principal Distributable Amount
shall not exceed the Certificate Balance; provided, further, that if any Class A
Note is outstanding, the Certificate Monthly Principal Distributable Amount
shall not exceed the amount of principal that, if distributed on the
Certificates, would reduce the outstanding principal amount of the Certificates
to an amount equal to 1.25% of the initial Note Value.
"Certificate Percentage" will be 3.75%.
"Certificate Principal Carryover Shortfall" means, for any
Payment Date, the excess of the Certificate Monthly Principal Distributable
Amount for the preceding Payment Date over (b) the amount of principal actually
paid to the Certificateholder on such preceding Payment Date.
"Class A Monthly Principal Distributable Amount" means, for
any Payment Date, the Principal Distributable Amount less the Certificate
Monthly Principal Distributable Amount; provided that the Class A Monthly
Principal Distributable Amount will not exceed the outstanding principal balance
of the Class A Notes; provided further that on (i) the Class A-1 Final Payment
Date, the Class A Monthly Principal Distributable Amount will at least equal the
outstanding principal balance of the Class A-1 Notes, (ii) the Class A-2 Final
Payment Date, the Class A Monthly Principal Distributable Amount will at least
equal the outstanding principal balance of the Class A-2 Notes, (iii) the Class
A-3 Final Payment Date, the Class A Monthly Principal Distributable Amount will
at least equal the outstanding principal balance of the Class A-3 Notes, and
(iv) the Class A-4 Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding principal balance of
the Class A-4 Notes.
"Class A-1 Note Final Payment Date" means November 15, 2002.
2
"Class A-1 Note Interest Rate" means a rate per annum equal to
2.19%.
"Class A-1 Notes" means the Class A-1 Notes (as defined in the
Indenture).
"Class A-2 Note Final Payment Date" means February 17, 2004.
"Class A-2 Note Interest Rate" means a rate per annum equal to
2.56%.
"Class A-2 Notes" means the Class A-2 Notes (as defined in the
Indenture).
"Class A-3 Note Final Payment Date" means October 17, 2005.
"Class A-3 Note Interest Rate" means a rate per annum equal to
3.26%.
"Class A-3 Notes" means the Class A-3 Notes (as defined in the
Indenture).
"Class A-4 Note Final Payment Date" means September 15, 2008.
"Class A-4 Note Interest Rate" means a rate per annum equal to
3.78%.
"Class A-4 Notes" means the Class A-4 Notes (as defined in the
Indenture).
"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
October 31, 2001 and, with respect to each subsequent Payment Date, the Fiscal
Month ending immediately preceding such Payment Date. Any amount stated "as of
the close of business on the last day of a Collection Period" shall give effect
to the following calculations as determined as of the end of the day on such
last day: (1) all applications of collections and (2) all distributions to be
made on the following Payment Date.
"Contract" means an agricultural or construction equipment
retail installment sale or loan contract.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered, which office at date of the execution of this Agreement
is located at 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).
"Cut-off Date" means September 23, 2001.
"Dealer" means the dealer who sold an item of Financed
Equipment securing a Receivable.
"Deere" means Deere & Company, a Delaware corporation, and its
successors.
3
"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 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,
4
registration on the books and records of the issuer thereof in
the name of the Indenture Trustee, or by another Person (not a
securities intermediary) either becoming the registered owner of
the uncertificated security on behalf of the Indenture Trustee,
or having become the registered owner, acknowledging that it
holds for the Indenture Trustee, or the issuer thereof agreeing
that it will comply with instructions originated by the Indenture
Trustee without further consent of the registered owner thereof;
(e) 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) 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).
(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" shall mean the Seller in its capacity as Depositor
under the Trust Agreement.
"Determination Date" means, with respect to any Payment Date,
the third Business Day prior to such Payment Date.
"Eligible Deposit Account" means either (a) a segregated trust
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the unsecured debt obligations of such depository institution shall have a
credit rating from each of Xxxxx'x 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, the Owner Trustee or Bankers Trust Company
as long as it is paying agent under the Trust Agreement, or (b) a depository
institution organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (1)(i) which has either (A) a long-term unsecured debt rating of
AAA or better by Standard & Poor's and Aaa or better by Xxxxx'x 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 Xxxxx'x, 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
5
(ii) whose deposits are insured by the FDIC. If so qualified, the Indenture
Trustee, the Owner Trustee, Bankers Trust Company or The Bank of
New York may be
considered an Eligible Institution for the purposes of clause (b) of this
definition.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under
the laws of the United States of America or any state thereof (or
any domestic branch of a foreign bank) and subject to supervision
and examination by Federal or State banking or depository
institution authorities; provided, however, that at the time of
the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or
trust company) thereof shall have a credit rating from each of
Standard & Poor's and Xxxxx'x, 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 Xxxxx'x in the highest investment category
granted thereby;
(d) investments in money market funds having a rating from
each of Standard & Poor's and Xxxxx'x 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 Xxxxx'x and at least A+ by S&P.
6
"Financed Equipment" means an item of agricultural,
construction or forestry equipment, together with all accessions thereto,
securing an Obligor's indebtedness under the respective Receivable.
"Fiscal Month" means a fiscal month specified in Schedule C,
as may be amended from time to time by the delivery by the Servicer to the
Seller, the Owner Trustee and the Indenture Trustee of a new Schedule C hereto
listing the fiscal months; provided that the fiscal months on any such new
Schedule C shall have the ranges of number of days generally similar to the
ranges of the number of days in the fiscal months set forth in the original
Schedule C hereto and shall 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 November 1, 2001,
between the Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means The Bank of
New York solely in its
capacity as indenture trustee under the Indenture and not in its individual
capacity, its successors in interest and any successor indenture trustee under
the Indenture.
"Initial Pool Balance" means the Pool Balance as of the
Cut-off Date, which is $919,119,840.
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its property
in an involuntary case under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such decree
or order shall remain unstayed and in effect for a period of 90 consecutive
days; or (b) the commencement by such Person of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by such Person to the entry of an order for
relief in an involuntary case under any such law, or the consent by such Person
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Investment Earnings" means, with respect to any Payment Date,
the investment earnings (net of losses and investment expenses) on amounts on
deposit in the Trust Accounts to be deposited into the Collection Account on
such Payment Date pursuant to Section 5.01(b).
"JDCC" means Xxxx Deere Capital Corporation, a Delaware
corporation, and its successors.
7
"Lien" means a security interest, lien, charge, pledge, equity
or encumbrance of any kind, other than tax liens, mechanics' liens and any liens
which attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer through the sale or other disposition of the Financed Equipment or
which the Servicer has determined to charge-off without realizing upon the
Financed Equipment.
"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 APR" means, with respect to a Receivable, its APR less
the Servicing Fee Rate.
"Note Distribution Account" means the account designated as
such, established and maintained pursuant to Section 5.01.
"Note Interest Rate" means the per annum interest rate borne
by a Note.
"Note Value" means, with respect to any day, the present value
of the unpaid Scheduled Payments on the Receivables, discounted at an annual
rate equal to 7.635%. For purposes of calculating Note Value, in the case of a
defaulted Receivable, (a) prior to the time the related Financed Equipment
becomes repossessed, the Scheduled Payments on such Receivable will be computed
based on the amounts that would have been the Scheduled Payments had such
delinquency not occurred, (b) after the time, if any, at which the Financed
Equipment securing such defaulted Receivable has been repossessed, but prior to
the time such defaulted Receivable becomes a Liquidated Receivable, the
Principal Balance of such defaulted Receivable shall be added to such Note
Value, but there shall be deemed to be no Scheduled Payments due on such
defaulted Receivable and (c) after the time such defaulted Receivable becomes a
Liquidated Receivable, and after the payment of a Purchase Amount in respect of
a Purchased Receivable, there shall be deemed to be no Scheduled Payments due on
such Receivable.
"Noteholders' Distributable Amount" means, with respect to any
Payment Date, the sum of (a) the accrued and unpaid interest on the Notes for
such Payment Date and (b) the Class A Monthly Principal Distributable Amount.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 and the Class A-4 Notes.
8
"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.
"Opinion of Counsel" means one or more written opinions of
counsel who may be an employee of or counsel to the Seller or the Servicer,
which counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or
the Rating Agencies, as applicable.
"Owner Trust Estate" has the meaning assigned to such term in
the Trust Agreement.
"Owner Trustee" means Bankers Trust (Delaware) in its capacity
as Owner Trustee under the Trust Agreement, its successors in interest and any
successor owner trustee under the Trust Agreement.
"Payment Date" means the 15th day of each month or, if such
day is not a Business Day, the immediately following Business Day, commencing on
November 15, 2001.
"Pool Balance" as of the close of business on the last day of
a Collection Period, means the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
"Principal Balance" of a Receivable, as of the close of
business on the last day of a Collection Period, means the Amount Financed minus
the sum of (i) that portion of all Scheduled Payments paid on or prior to such
day allocable to principal using the actuarial method, (ii) any payment of the
Purchase Amount with respect to the Receivable purchased by the Servicer or
repurchased by the Seller and allocable to principal, and (iii) any prepayment
in full or any partial prepayments applied to reduce the Principal Balance of
the Receivable.
"Principal Carryover Shortfall" means, with respect to any
Payment Date, the excess of (i) the Principal Distributable Amount for the
immediately preceding Payment Date over (ii) the amount that was actually
deposited into the Note Distribution Account and the Certificate Distribution
Account on account of principal on such immediately preceding Payment Date.
"Principal Distributable Amount" means, with respect to any
Payment Date, will be the sum of (i) the Principal Distribution Amount for such
Payment Date and (ii) the Principal Carryover Shortfall for such Payment Date.
"Principal Distribution Amount" means, with respect to any
Payment Date, an amount equal to the Note Value at the beginning of the related
Collection Period less the Note Value at the end of that Collection Period.
9
"Purchase Agreement" means the Purchase Agreement dated as of
November 1, 2001, between the Seller and JDCC, as the same may be amended and
supplemented from time to time.
"Purchase Amount" means the amount, as of the close of
business on the last day of a Collection Period, required to prepay in full the
respective Receivable under the terms thereof including interest to the last day
of such Collection Period.
"Purchased Receivable" means a Receivable purchased as of the
close of business on the last day of a Collection Period by the Servicer
pursuant to Section 4.07 or repurchased as of such time by the Seller pursuant
to Section 3.02.
"Rating Agencies" means Moody's 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.
"Recoveries" means, with respect to any Liquidated Receivable,
monies collected in respect thereof, from whatever source (other than any
amounts from Dealer reserves) after the Fiscal Month in which such Receivable
became a Liquidated Receivable, net of the sum of any amounts expended by the
Servicer for the account of the Obligor and any amounts required by law to be
remitted to the Obligor.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.01.
"Reserve Account Initial Deposit" means, with respect to the
Closing Date, $16,302,577.
"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.
10
"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.
"Specified Reserve Account Balance" means, unless otherwise
consented to by the Rating Agencies as described below, with respect to any
Payment Date, 1.75% of the initial Note Value; PROVIDED, HOWEVER, that the
Specified Reserve Account Balance shall not exceed the sum of the outstanding
principal amount of the Notes immediately preceding such Payment Date less the
Principal Distribution Amount to be deposited in the Note Distribution Account
on such Payment Date and upon payment of all interest and principal due on the
Notes, the Specified Reserve Account Balance shall be zero. 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.
"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.
"Total Distribution Amount" means, for each Payment Date, the
sum of the aggregate collections in respect of Receivables (including
Liquidation Proceeds and Purchase Amounts) received during the related
Collection Period, plus Investment Earnings.
"Transfer Date" means, with respect to any Payment Date, the
Business Day preceding such Payment Date.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts
and investments held from time to time in any Trust Account (whether in the form
of deposit accounts, book-entry securities, uncertificated securities or
otherwise), including the Reserve Account Initial Deposit, and all proceeds of
the foregoing.
"Trust Accounts" has the meaning assigned thereto in
Section 5.01.
11
"Trust Agreement" means the Trust Agreement dated as of
November 1, 2001, between the Seller and the Owner Trustee, as the same may be
amended and supplemented from time to time.
"Trust Officer" means, in the case of the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Secretary, Assistant
Secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject and, with respect to the Owner Trustee, any officer in the
Corporate Trustee Administration Department of the Owner Trustee with direct
responsibility for the administration of the Trust Agreement and the Basic
Documents on behalf of the Owner Trustee.
"Unscheduled Principal Payments" means, for any Payment Date,
the aggregate amount of unscheduled principal payments on the Receivables
received during the related Collection Period.
SECTION 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used herein and not otherwise defined
herein have the meanings assigned to them in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
12
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 and the Class A-4 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 and the Class A-4
Notes in respect of a Payment Date will accrue from and including the 15th day
of the month preceding such Payment Date (or the Closing Date in the case of the
first Payment Date) to and including the 14th day of the month of such Payment
Date.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 CONVEYANCE OF RECEIVABLES. In consideration of
the Issuer's delivery to or upon the order of the Seller of $895,360,864.19 plus
the issuance to the Seller of the Certificate, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Issuer, 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.
ARTICLE III
THE RECEIVABLES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF SELLER. The
Seller makes the following representations and warranties as to the Receivables
on which the Issuer is deemed to have relied in acquiring the Receivables. Such
representations and warranties speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of
13
the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) TITLE. It is the intention of the Seller that the transfer
and assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Issuer and that the beneficial
interest in and title to such Receivables not be part of the
debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Issuer. Immediately prior to
the transfer and assignment herein contemplated, the Seller had
good and marketable title to each Receivable, free and clear of
all Liens and rights of others and, immediately upon the transfer
thereof, the Issuer shall have good and marketable title to each
such Receivable, free and clear of all Liens and rights of
others; and the transfer has been perfected under the UCC.
(b) ALL FILINGS MADE. All filings (including UCC filings)
necessary in any jurisdiction to give the Issuer a first
perfected ownership interest in the Receivables, and to give the
Indenture Trustee a first perfected security interest therein,
shall have been made.
SECTION 3.02 REPURCHASE BY SELLER UPON BREACH. The Seller, the
Servicer, the Sub-Servicer or the Owner Trustee, as the case may be, shall
inform the other parties to the Agreement and the Indenture Trustee and JDCC
promptly, in writing, upon the discovery of any breach of the Seller's
representations and warranties made pursuant to Section 3.01 or JDCC's
representations and warranties made pursuant to Section 3.02(b) of the Purchase
Agreement. Unless any such breach shall have been cured by the last day of the
second month following the month of the discovery thereof by the Owner Trustee
or receipt by the Owner Trustee of written notice from the Seller, the Servicer
or the Sub-Servicer of such breach, the Seller shall be obligated, and, if
necessary, the Seller or the Owner Trustee shall enforce the obligation of JDCC
under the Purchase Agreement, to repurchase any Receivable materially and
adversely affected by any such breach as of such last day (or, at the Seller's
option, the last day of the first month following the month of the discovery).
In consideration of the repurchase of the Receivable, the Seller shall remit the
Purchase Amount, in the manner specified in Section 5.03; PROVIDED, HOWEVER,
that the obligation of the Seller to repurchase any Receivable arising solely as
a result of a breach of JDCC's representations and warranties pursuant to
Section 3.02 (b) of the Purchase Agreement is subject to the receipt by the
Seller of the Purchase Amount from JDCC. Subject to the provisions of Section
6.03, the sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee,
the Noteholders or the Certificateholder with respect to a breach of
representations and warranties pursuant to Section 3.01 and the agreement
contained in this Section shall be to require the Seller to repurchase
Receivables pursuant to this Section, subject to the conditions contained
herein, or to enforce JDCC's obligation to the Seller to repurchase such
Receivables pursuant to the Purchase Agreement. The Owner Trustee shall have no
duty to conduct any affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Receivable pursuant to this Section.
SECTION 3.03 CUSTODY OF RECEIVABLE FILES. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Issuer hereby appoints the Servicer, and the Servicer hereby accepts such
appointment, to act as the agent of the Issuer and
14
the Indenture Trustee as custodian of the following documents or instruments
which are hereby constructively delivered to the Indenture Trustee, as pledgee
of the Issuer with respect to each Receivable:
(a) the original executed copy of the Receivable;
(b) the original or a copy of the credit application fully
executed by the Obligor;
(c) the original certificate of title (or a secured party copy
thereof), the file stamped copy of the UCC financing statement or
such other documents that the Seller or JDCC shall keep on file,
in accordance with its customary procedures, evidencing the
security interest of Deere & Company or an affiliate of Deere &
Company in the Financed Equipment; and
(d) any and all other documents that JDCC or the Seller shall
keep on file, in accordance with its customary procedures,
relating to a Receivable, an Obligor or Financed Equipment.
SECTION 3.04 DUTIES OF SERVICER AS CUSTODIAN.
(a) SAFEKEEPING. The Servicer shall hold the Receivable Files on
behalf of the Issuer and maintain such accurate and complete accounts, records
and computer systems pertaining to each Receivable File as shall enable the
Issuer to comply with this Agreement. In performing its duties as custodian the
Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the receivable files
relating to all comparable receivables that the Servicer services for itself or
others. The Servicer shall conduct, or cause to be conducted, periodic audits of
the Receivable Files held by it under this Agreement and of the related
accounts, records and computer systems, in such a manner as shall enable the
Issuer or the Indenture Trustee to verify the accuracy of the Servicer's record
keeping. The Servicer shall promptly report to the Issuer and the Indenture
Trustee any failure on its part to hold the Receivable Files and maintain its
accounts, records and computer systems as herein provided and promptly take
appropriate action to remedy any such failure. Nothing herein shall be deemed to
require an initial review or any periodic review by the Issuer, the Owner
Trustee or the Indenture Trustee of the Receivable Files.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer shall
maintain each Receivable File at its office specified in Schedule B to this
Agreement or at such other office as shall be specified to the Issuer and the
Indenture Trustee by written notice not later than 90 days after any change in
location. The Servicer shall make available to the Issuer and the Indenture
Trustee or their respective duly authorized representatives, attorneys or
auditors a list of locations of the Receivable Files and the related accounts,
records and computer systems maintained by the Servicer at such times as the
Issuer or the Indenture Trustee shall instruct.
(c) RELEASE OF DOCUMENTS. Upon instruction from the Indenture
Trustee, the Servicer shall release any Receivable File to the Indenture
Trustee, the Indenture Trustee's agent, or the Indenture Trustee's designee, as
the case may be, at such place or places as the Indenture Trustee may designate,
as soon as practicable.
15
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 Issuer (to the extent provided herein), shall manage, service, administer
and make collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable equipment receivables that it services
for itself or others. The Servicer's duties shall include calculating, billing,
collection and posting of all payments, responding to inquiries of Obligors on
such Receivables, investigating delinquencies, reporting tax information to
Obligors, accounting for collections,
16
and furnishing monthly and annual statements to the Owner Trustee and the
Indenture Trustee with respect to distributions. Subject to the provisions of
Section 4.02, the Servicer shall follow its customary standards, policies and
procedures in performing its duties as Servicer. Without limiting the generality
of the foregoing, the Servicer is authorized and empowered to execute and
deliver, on behalf of itself, the Issuer, the Owner Trustee, the Indenture
Trustee, the Certificateholder and the Noteholders or any of them, any and all
instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Equipment securing such Receivables. If the
Servicer shall commence a legal proceeding to enforce a Receivable, the Issuer
(in the case of a Receivable other than a Purchased Receivable) shall thereupon
be deemed to have automatically assigned, solely for the purpose of collection,
such Receivable to the Servicer. If in any enforcement suit or legal proceeding
it shall be held that the Servicer may not enforce a Receivable on the ground
that it shall not be a real party in interest or a holder entitled to enforce
such Receivable, the Owner Trustee shall, at the Servicer's expense and
direction, take steps to enforce such Receivable, including bringing suit in its
name or the name of the Owner Trustee, the Indenture Trustee, the
Certificateholder or the Noteholders. The Owner Trustee shall upon the written
request of the Servicer furnish the Servicer with any powers of attorney and
other documents reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
SECTION 4.02 COLLECTION OF RECEIVABLE PAYMENTS. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and 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 September 22, 2007, it shall
promptly purchase the Receivable from the Issuer 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
Issuer. The Servicer may in its discretion waive any additional interest above
the related APR due on late Scheduled Payments or any other fees that may be
collected in the ordinary course of servicing a Receivable. The Servicer shall
not agree to any alteration of the interest rate on any Receivable or of the
amount of any Scheduled Payment on a Receivable. Notwithstanding anything in
this Agreement to the contrary, any Recoveries shall be paid to the Seller and
the related Liquidated Receivable shall be assigned by the Trust to the Seller.
SECTION 4.03 REALIZATION UPON RECEIVABLES. On behalf of the
Issuer, the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise realize upon the Financed
Equipment securing any Receivable as to which the Servicer shall have determined
pursuant to customary servicing procedures that eventual payment in full is
unlikely. The Servicer shall follow such customary and usual practices and
procedures as it shall deem necessary or advisable in its servicing of
comparable equipment receivables, which may include selling the Financed
Equipment at public or private sale. The foregoing shall be subject to the
provision that, in any case in which the Financed Equipment shall have suffered
damage, consistent with its customary servicing procedures the Servicer may
17
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 Issuer 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 Issuer, 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 pursuant to Section
4.02, 4.05 or 4.06. Unless the breach shall have been cured by the last day of
the second month following such discovery (or, at the Servicer's election, the
last day of the first following month), the Servicer shall purchase any
Receivable materially and adversely affected by such breach. If the Servicer
takes any action pursuant to Section 4.02 that impairs the rights of the Issuer,
the Indenture Trustee, the Certificateholder or the Noteholders in any
Receivable or as otherwise provided in Section 4.02, the Servicer shall purchase
such Receivable. In consideration of the purchase of any such Receivable
pursuant to either of the two preceding sentences, the Servicer shall remit the
Purchase Amount in the manner specified in Section 5.03. Subject to Section
7.02, the sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee,
the 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
Receivables pursuant to this Section. The Owner Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the purchase of any Receivable pursuant to this Section.
SECTION 4.08 SERVICING FEE. On each Determination Date, the
Servicer shall be entitled to receive the Servicing Fee in respect of the
immediately preceding Collection Period equal to the product of (a) one twelfth
of the Servicing Fee Rate and (b) the Pool Balance as of the first day of such
preceding Collection Period. The Servicer shall also be entitled to that portion
of interest due on a Receivable that is in excess of interest at the related APR
and that is due because of a late Scheduled Payment, and other administrative
fees or similar charges
18
allowed by applicable law or the Receivable with respect to Receivables,
collected (from whatever source) on the Receivables.
SECTION 4.09 SERVICER'S CERTIFICATE. On each Determination
Date, the Servicer shall deliver to the Owner Trustee, the Indenture Trustee and
the Seller, with a copy to the Rating Agencies, a Servicer's Certificate
containing all information necessary to make the distributions pursuant to
Sections 5.04 and 5.06 for the Collection Period preceding the date of such
Servicer's Certificate. Neither the Owner Trustee nor the Indenture Trustee
shall be required to determine, confirm or recalculate the information contained
in the Servicer's Certificate. Receivables to be purchased by the Servicer or to
be repurchased by the Seller shall be identified by the Servicer by account
number with respect to such Receivable (as specified in Schedule A).
SECTION 4.10 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF
DEFAULT.
(a) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee, on or before February 28 of each year beginning February 28,
2003, an Officers' Certificate stating that (i) a review of the activities of
the Servicer during the 12-month period ending on October 31 of the preceding
year (or, in the case of October 31, 2002, the period from the Closing Date to
October 31, 2002) and of its performance under this Agreement has been made
under such officers' supervision and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled in all material
respects all its obligations under this Agreement throughout such period or, if
there has been a default in the fulfillment of any such obligation in any
material respect, specifying each such default known to such officers and the
nature and status thereof. The Indenture Trustee shall send a copy of such
certificate and the report referred to in Section 4.11 to the Rating Agencies. A
copy of such certificate and the report referred to in Section 4.11 may be
obtained by the Certificateholder by a request in writing to the Owner Trustee
at its address in Section 10.03.
(b) The Servicer shall deliver to the Owner Trustee, the
Indenture Trustee and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five (5) Business Days thereafter,
written notice in an Officers' Certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer Default under Section
8.01(a) or (b).
SECTION 4.11 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
REPORT. The Servicer shall cause a firm of independent certified public
accountants, which may also render other services to the Servicer, the Seller or
JDCC, to deliver to the Owner Trustee and the Indenture Trustee on or before
February 28 of each year beginning February 28, 2003, a report addressed to the
Board of Directors of the Servicer, the Owner Trustee and the Indenture Trustee,
to the effect that such firm has examined the financial statements of JDCC and
issued its report thereon and that such examination (a) was made in accordance
with generally accepted auditing standards and accordingly included such tests
of the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances; (b) included tests relating to
equipment loans serviced for others in accordance with the requirements of the
Uniform Single Attestation Program for Mortgage Bankers (the "Program"), to the
extent the procedures in such program are applicable to the servicing
obligations set forth in this
19
Agreement; and (c) except as described in the report, disclosed no exceptions or
errors in the records relating to equipment loans (including the Receivables)
serviced for others during the 12-month period (or, in the case of the report
due on or before February 28, 2003, the period from the Closing Date to October
31, 2002) that, in the firm's opinion, such Program requires such firm to
report.
Such report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
20
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 Issuer, the Owner Trustee, the Indenture Trustee, the
Certificateholder and the Noteholders for the servicing and administering of the
Receivables in accordance with the provisions hereof without diminution of such
obligation and liability by virtue of the appointment of such Sub-Servicer and
to the same extent and under the same terms and conditions as if the Servicer
alone were servicing and administering the Receivables. The fees and expenses of
the Sub-Servicer shall be as agreed between the Servicer and its Sub-Servicer
from time to time and none of the Issuer, the Owner Trustee, the Indenture
Trustee, the Certificateholder or the Noteholders shall have any responsibility
therefor.
ARTICLE V
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO 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
21
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 and the Certificateholder or the Noteholders, as applicable;
provided, however, that on each Payment Date all interest and other investment
income (net of losses and investment expenses) on funds on deposit in the Trust
Accounts shall be deposited into the Collection Account and shall be deemed to
constitute a portion of the Total Distribution Amount. Other than as permitted
by the Rating Agencies, funds on deposit in the Trust Accounts shall be invested
in Eligible Investments that will mature so that such funds will be available at
the close of business on the Transfer Date preceding the following Payment Date
or, in the case of the Note Distribution Account and the Reserve Account, the
following Payment Date. Funds deposited in a Trust Account on a Transfer Date
which immediately precedes a Payment Date are not required to be invested
overnight.
(c) (i) The Indenture Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the Trust Accounts and
in all proceeds thereof (including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust Estate. The Trust
Accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders and the Certificateholder or the Noteholders,
as the case may be. If, at any time, any of the Trust Accounts ceases to be an
Eligible Deposit Account, the Indenture Trustee (or the Servicer on its behalf)
shall within 10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a new Trust Account
as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Trust Account. So long as The Bank of
New York is an
Eligible Institution, any Trust Account shall be maintained with it in an
Eligible Deposit Account.
(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
22
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 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 Issuer 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, and (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;
(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
(E) any Trust Account Property that is an "uncertificated
security" under Article VIII of the UCC and that is not governed by clause (C)
above shall be delivered to the Indenture Trustee in accordance with paragraph
(d) of the definition of "Delivery" and shall be maintained by the Indenture
Trustee, pending maturity or disposition, through continued registration of the
Indenture Trustee's (or its nominee's) ownership of such security.
(iii) The Servicer shall have the power, revocable by the
Indenture Trustee or by the Owner Trustee with the consent of the Indenture
Trustee, to instruct the Indenture Trustee
23
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 P-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, unless the Servicer shall not be required to make
deposits within two Business Days of the receipt of collections from Obligors
pursuant to Section 5.02, in which case deposits of Purchased Amounts shall be
made on the Transfer Date.
SECTION 5.04 DISTRIBUTIONS.
(a) On each Determination Date, the Servicer shall calculate
the amounts to be deposited in the Note Distribution Account and the Certificate
Distribution Account.
(b) On the second Business Day prior to each Payment Date,
the Servicer shall instruct the Indenture Trustee in writing in substantially
the form of Schedule G hereto (based on the information contained in the
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 4.09) to make deposits and distributions to the Servicer or the
Administrator or distribute to the applicable Trust Account or Certificate
Distribution Account by 12:00 noon (
New York time) in the case of the Trust
Accounts and 11:00 A.M. (
New York time) in the case of the Certificate
Distribution Account, in each case on such Payment Date. Distributions of the
Total Distribution Amount shall be made by the Indenture Trustee in the
following order of priority:
(i) to the Servicer, from the Total Distribution Amount, the
Servicing Fee and all unpaid Servicing Fees from prior Collection
Periods:
24
(ii) to the Administrator under the Administration Agreement,
from the Total Distribution Amount remaining after the
application of clause (i), the Administration Fee and all unpaid
Administration Fees from prior Collection Periods;
(iii) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clauses
(i) and (ii), the accrued and unpaid interest on the Notes for
such Payment Date;
(iv) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clauses
(i), (ii) and (iii), the Class A Monthly Principal Distributable
Amount:
(v) to the Reserve Account, from the Total Distribution
Amount remaining after the application of clauses (i), (ii),
(iii) and (iv), the amount, if any, necessary to increase the
amounts on deposit in the Reserve Account to the Specified
Reserve Account Balance;
(vi) to the Certificate Distribution Account, from the Total
Distribution Amount remaining after the application of clauses
(i), (ii), (iii), (iv) and (v), the Certificate Monthly Principal
Distributable Amount; and
(vii) to the Reserve Account, the Total Distribution Amount
remaining after the application of clauses (i), (ii), (iii),
(iv), (v) and (vi).
SECTION 5.05 RESERVE ACCOUNT.
(a) On the Closing Date, the Seller shall deposit the
Reserve Account Initial Deposit into the Reserve Account. The Servicer shall
determine the Specified Reserve Account Balance for each Payment Date.
(b) (i) If the amount on deposit in the Reserve Account on
each Payment Date (after giving effect to all deposits or withdrawals therefrom
on such Payment Date pursuant to Section 5.04 and Section 5.05(c)) is greater
than the Specified Reserve Account Balance for such Payment Date, the Servicer
shall instruct the Indenture Trustee to distribute such excess in the Reserve
Account to the Seller.
(ii) On the date on which all interest on and principal of
the Notes have been paid in full, the Servicer shall instruct the Indenture
Trustee to distribute the Reserve Account balance to the Seller.
(iii) Amounts properly distributed to the Seller pursuant to
this Section 5.05(b) shall be deemed released from the Trust and the security
interest therein granted to the Indenture Trustee, and the Seller shall in no
event thereafter be required to refund any such distributed amounts.
(c) In the event that the Noteholders' Distributable Amount
for a Payment Date exceeds the amount deposited into the Note Distribution
Account pursuant to Section 5.04(b)(iii) and (iv) on such Payment Date, the
Servicer shall instruct the Indenture Trustee to
25
withdraw from the Reserve Account on such Payment Date, to the extent of funds
available therein, an amount equal to such excess and deposit such amount into
the Note Distribution Account.
SECTION 5.06 STATEMENTS TO THE CERTIFICATEHOLDER AND
NOTEHOLDERS.
(a) On the second Business Day preceding each Payment Date,
the Servicer shall provide to the Indenture Trustee (with a copy to the Rating
Agencies) and to the Owner Trustee for the Owner Trustee to forward to the
Certificateholder of record a statement substantially in the form of Schedule E
setting forth at least the following information as to the Notes and the
Certificate to the extent applicable:
(i) the amount of such distribution allocable to principal;
(ii) the amount of such distribution allocable to interest;
(iii) the Pool Balance and the Note Value as of the close of
business on the last day of the preceding Collection Period;
(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
and (4) the Class A-4 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;
(viii) the balance of the Reserve Account on such Payment
Date, after giving effect to distributions made on such Payment
Date, and the Specified Reserve Account Balance for such Payment
Date; and
(ix) the amount of any payments in respect of the
Receivables that are more than 60 days past due.
Each amount set forth pursuant to paragraph (i), (ii) or
(iv) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate or Note, as applicable.
(b) On the second Business Day preceding each Payment Date,
the Servicer shall provide to the Indenture Trustee (with a copy to the Rating
Agencies) for the Indenture Trustee to forward to each Noteholder of record, a
statement substantially in the form of
26
Schedule F setting forth at least the following information as to the Notes to
the extent applicable with respect to such Payment Date or the related
Collection Period:
(i) the amount of such distribution allocable to principal;
(ii) the amount of such distribution allocable to interest;
(iii) the Pool Balance and the Note Value as of the close of
business on the last day of the preceding Collection Period;
(iv) (A) the outstanding principal balance of (1) the
Class A-1 Notes, (2) the Class A-2 Notes, (3) the Class A-3 Notes
and (4) the Class A-4 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 such Collection Period;
(vi) the amount of the Administration Fee paid to the
Administrator with respect to such Collection Period;
(vii) the aggregate amount of Purchase Amounts for Purchased
Receivables with respect to such Collection Period;
(viii) the balance of the Reserve Account on such Payment
Date, after giving effect to the distributions made on such
Payment Date, and the Specified Reserve Account Balance for such
Payment Date; and
(ix) the amount of any payments in respect of the
Receivables that are more than 60 days past due.
Each amount set forth pursuant to subclause (i), (ii) or (iv)
above shall be expressed as a dollar amount per $1,000 of original principal
balance of a Note.
Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of the Indenture,
the Indenture Trustee shall mail to each Person who at any time during such
calendar year shall have been a Noteholder and received any payment thereon, a
statement containing the amounts described in (i) and (ii) (other than
information relating to the Note Interest Rates) above and any other information
required by applicable tax laws, for the purposes of such Noteholder's
preparation of Federal income tax returns.
The Indenture Trustee shall only be required to provide to the
Noteholders the information furnished to it by the Servicer.
SECTION 5.07 NET DEPOSITS. As an administrative convenience,
unless the Servicer is required to remit collections within two Business Days of
their receipt, the Servicer will be permitted to make the deposit of collections
on the Receivables and Purchase Amounts
27
for or with respect to the Collection Period net of distributions to be made to
the Servicer with respect to the Collection Period. The Servicer, however, will
account to the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholder as if all deposits, distributions and transfers were made
individually.
ARTICLE VI
THE SELLER
SECTION 6.01 REPRESENTATIONS OF SELLER. The Seller makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of this Agreement and shall survive the sale of the Receivables to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Seller is duly
organized and validly existing as a corporation in good standing under the laws
of the State of Nevada, with the power and authority to own its properties and
to conduct its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and has, the power,
authority and legal right to acquire and own the Receivables.
(b) DUE QUALIFICATION. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the failure to so
qualify or to obtain such license or approval would render any Receivable
unenforceable that would otherwise be enforceable by the Seller, the
Sub-Servicer or the Owner Trustee.
(c) POWER AND AUTHORITY. The Seller has the power and
authority to execute and deliver this Agreement and to carry out its terms; the
Seller has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Issuer and the Seller and shall have duly
authorized such sale and assignment to the Issuer by all necessary corporate
action; and the execution, delivery and performance of this Agreement have been
duly authorized by the Seller by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Seller enforceable in accordance with its
terms except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and the remedy of specific performance
and injunctive relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(e) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of the Seller, or any indenture, agreement
or other instrument to which the Seller is a party or by which it shall be
bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such
28
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);
(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
29
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
SECTION 6.03 LIABILITY OF SELLER; INDEMNITIES. The Seller
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under the Agreement.
(a) The Seller shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee and their officers,
directors and agents from and against any taxes that may at any time be asserted
against the Issuer, the Owner Trustee or the Indenture Trustee or their
officers, directors, and agents with respect to the sale of the Receivables to
the Issuer or the issuance and original sale of the Certificate and the Notes,
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of the Issuer, not
including any taxes asserted with respect to ownership of the Receivables or
Federal or other income taxes arising out of the transactions contemplated by
this Agreement) and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee and their officers,
directors, and agents from and against any loss, liability or expense incurred
by reason of (i) the Seller's willful misfeasance, bad faith or negligence in
the performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement and (ii) the
Seller's or the Issuer's violation of Federal or state securities laws in
connection with the offering and sale of the Notes and the Certificate.
(c) The Seller shall pay any and all property taxes (including
taxes on intangibles), excise taxes, sales taxes and similar taxes levied or
assessed upon all or any part of the Trust Estate including, without limitation,
the Receivables.
Indemnification under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture Trustee and the
termination of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Seller shall have made any indemnity
payments pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from others, such
Person shall promptly repay such amounts to the Seller, without interest.
SECTION 6.04 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the properties and assets of
the Seller substantially as a whole, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
this Agreement; provided, however, that (i) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 3.01
shall have been breached and no Servicer Default, and no event that, after
notice or lapse of time, or both, would become a Servicer Default shall have
occurred and be continuing, (ii) the Seller shall have delivered to the Owner
Trustee and the
30
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.
ARTICLE VII
THE SERVICER
SECTION 7.01 REPRESENTATIONS OF SERVICER. The Servicer makes
the following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of 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
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Servicer is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, and has the corporate power and
authority to own its properties and to conduct the business in which it is
currently engaged, and had at all relevant times, and has, the power, authority
and legal right to acquire, own, sell and service the Receivables and to hold
the Receivable Files as custodian.
31
(b) POWER AND AUTHORITY. The Servicer has the power and
authority to execute and deliver this Agreement and to carry out its terms; and
the execution, delivery and performance of this Agreement have been duly
authorized by the Servicer by all necessary corporate action.
(c) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Servicer enforceable in accordance with its
terms except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and the remedy of specific performance
and injunctive relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(d) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of the Servicer, or any indenture,
agreement or other instrument to which the Servicer is a party or by which it
shall be bound; nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or other
instrument (other than this Agreement); nor violate any law or, to the best of
the Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Servicer or its properties.
(e) NO PROCEEDINGS. To the Servicer's best knowledge, there
are no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Basic Documents,
the Notes or the Certificate, (ii) seeking to prevent the issuance of the Notes
or the Certificate or the consummation of any of the transactions contemplated
by this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificate or (iv) relating to the Servicer and
which might adversely affect the Federal or state income tax attributes of the
Notes or the Certificate.
(f) NO INSOLVENT OBLIGORS. As of the Cut-off Date, no
Obligor on a Receivable is shown on the Receivable Files as the subject of a
bankruptcy proceeding.
SECTION 7.02 INDEMNITIES OF SERVICER. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
(a) The Servicer shall defend, indemnify and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders, the
Certificateholder and the Seller and any of the officers, directors and agents
of the Issuer, the Owner Trustee, the Indenture Trustee and the Seller from and
against any and all costs, expenses, losses, damages, claims and
32
liabilities, arising out of or resulting from the use, ownership or operation by
the Servicer or any Affiliate thereof of any Financed Equipment.
(b) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, and the Seller and their
respective officers, directors and agents from and against any taxes that may at
any time be asserted against any such Person with respect to the transactions
contemplated herein, including any sales, gross receipts, general corporation,
tangible personal property, privilege or license taxes (but, in the case of the
Issuer, not including any taxes asserted with respect to, and as of the date of,
the sale of the Receivables to the Issuer or the issuance and original sale of
the Certificate and the Notes, or asserted with respect to ownership of the
Receivables, or Federal or other income taxes arising out of distributions on
the Certificate or the Notes) and costs and expenses in defending against the
same.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Seller, the
Certificateholder and the Noteholders and any of the officers, directors and
agents of the Issuer, the Owner Trustee, the Indenture Trustee and the Seller
from and against any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon any such Person through, the
negligence, willful misfeasance or bad faith of the Servicer in the performance
of its duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement or on account of the failure of the
Servicer to be qualified to do business as a foreign corporation or to have
obtained a license or approval in any jurisdiction.
(d) The Servicer shall indemnify, defend and hold harmless the
Owner Trustee and the Indenture Trustee and their respective officers, directors
and agents from and against all costs, expenses, losses, claims, damages and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties herein and in the Trust Agreement
contained, in the case of the Owner Trustee, and in the Indenture contained, in
the case of the Indenture Trustee, except to the extent that such cost, expense,
loss, claim, damage or liability: (i) shall be due to the willful misfeasance,
bad faith or negligence (except for errors in judgment) of the Owner Trustee or
the Indenture Trustee as applicable; or (ii) shall arise from the breach by the
Owner Trustee of any of its representations or warranties set forth in Section
7.03 of the Trust Agreement.
(e) To the extent not indemnified by the Seller under
Section 6.03, the Servicer shall pay any and all taxes levied or assessed upon
all or any part of the Owner Trust Estate, other than any taxes asserted with
respect to, and as of the date of, the sale of the Receivables to the Issuer or
the issuance and original sale of the Certificate and the Notes, or Federal or
other income taxes imposed on the Issuer because of its classification or
reclassification for tax purposes, or Federal or other income taxes arising out
of distributions on the Certificate or the Notes.
(f) The Servicer shall pay the Indenture Trustee from time to
time reasonable compensation for all services rendered by the Indenture Trustee
under the Indenture (which
33
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 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
34
clauses (i), (ii), (iii) and (iv) above shall be conditions to the consummation
of the transactions referred to in clause (a), (b), (c) or (d) above.
SECTION 7.04 LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
Neither the Servicer nor the Sub-Servicer nor any of the directors or officers
or employees or agents of the Servicer or the Sub-Servicer, as the case may be,
shall be under any liability to the Issuer, the Noteholders or the
Certificateholder, except as provided under this Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall not protect
the Servicer, the Sub-Servicer or any such person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer, the Sub-Servicer and
any director or officer or employee or agent of the Servicer or the
Sub-Servicer, as the case may be, may rely in good faith on any document of any
kind prima facie properly executed and submitted by any person respecting any
matters arising under this Agreement.
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.
35
SECTION 7.05 JDCC NOT TO RESIGN AS SERVICER. Subject to the
provisions of Section 7.03, JDCC shall not resign from the obligations and
duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law. Notice of any such determination
permitting the resignation of JDCC shall be communicated to the Owner Trustee
and the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a successor Servicer shall
have assumed the responsibilities and obligations of JDCC in accordance with
Section 8.02.
SECTION 7.06 SERVICER TO ACT AS ADMINISTRATOR. In the event of
the resignation or removal of the Administrator and the failure of a successor
Administrator to have been appointed and to have accepted such appointment as
successor Administrator, the Servicer shall become the successor Administrator
and shall be bound by the terms of the Administration Agreement.
ARTICLE VIII
DEFAULT
SECTION 8.01 SERVICER DEFAULT. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the Indenture
Trustee for deposit in any of the Trust Accounts or the
Certificate Distribution Account any required payment or to
direct the Indenture Trustee to make any required distributions
therefrom that shall continue unremedied for a period of three
Business Days after written notice of such failure is received by
the Servicer from the Owner Trustee or the Indenture Trustee or
after discovery of such failure by an officer of the Servicer; or
(b) failure on the part of the Servicer or the Seller, as the
case may be, duly to observe or to perform in any material
respect any other covenants or agreements of the Servicer or the
Seller (as the case may be) set forth in this Agreement or any
other Basic Document, which failure shall (i) materially and
adversely affect the rights of Certificateholder or Noteholders
and (ii) 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;
36
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, either the Indenture Trustee, or the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Servicer (and to the Indenture Trustee and the
Owner Trustee if given by the Noteholders) may terminate all the rights and
obligations (other than the obligations set forth in Section 7.02 hereof) of the
Servicer under this Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Notes, the Certificate or the Receivables or
otherwise, shall, without further action, pass to and be vested in the Indenture
Trustee or such successor Servicer as may be appointed under Section 8.02; and,
without limitation, the Indenture Trustee and the Owner Trustee are hereby
authorized and empowered to execute and deliver, on behalf of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related documents,
or otherwise. The predecessor Servicer shall cooperate with the successor
Servicer, the Indenture Trustee and the Owner Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received by it with
respect to a Receivable. All reasonable costs and expenses (including reasonable
attorneys' fees) incurred in connection with transferring the Receivable Files
to the successor Servicer and amending this Agreement to reflect such succession
as Servicer pursuant to this Section shall be paid by the predecessor Servicer
upon presentation of reasonable documentation of such costs and expenses. Upon
receipt of notice of the occurrence of a Servicer Default, the Owner Trustee
shall give notice thereof to the Rating Agencies.
SECTION 8.02 APPOINTMENT OF SUCCESSOR.
(a) Upon the Servicer's receipt of notice of termination,
pursuant to Section 8.01 or the Servicer's resignation in accordance with the
terms of this Agreement, the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement, in the case of termination, only
until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until receipt of such notice and, in the
case of resignation, until the earlier of (x) the date 45 days from the delivery
to the Owner Trustee and the Indenture Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (y) the date upon which the predecessor Servicer
shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the 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
37
Affiliate or agent in accordance with Section 4.14. The Indenture Trustee shall
not be liable for any action or failure to act on the part of the predecessor
Servicer. Notwithstanding the above, the Indenture Trustee shall, if it shall be
legally unable so to act, appoint or petition a court of competent jurisdiction
to appoint, any established institution, having a net worth of not less than
$50,000,000 and whose regular business shall include the servicing of equipment
receivables, as the successor to the Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the
Indenture Trustee acting as successor Servicer) shall be the successor in all
respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Servicer and shall be entitled to the Servicing Fee
and all the rights granted to the predecessor Servicer by the terms and
provisions of this Agreement.
(c) Subject to the Indenture Trustee's right to appoint a
successor Servicer pursuant to Section 8.02(a) after the Indenture Trustee has
become the Servicer, the Servicer may not resign unless it is prohibited from
serving as such by law.
SECTION 8.03 NOTIFICATION TO NOTEHOLDERS AND THE
CERTIFICATEHOLDER. Upon any termination of, or appointment of a successor to,
the Servicer pursuant to this Article VIII, the Owner Trustee shall give prompt
written notice thereof to the Certificateholder and the Indenture Trustee shall
give prompt written notice thereof to Noteholders and the Rating Agencies.
SECTION 8.04 WAIVER OF PAST DEFAULTS. The Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes, 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
38
confirmed that the rating assigned to the Notes by such Rating Agency shall not
be withdrawn or downgraded as a result of such purchase. To exercise such
option, the Servicer shall deposit pursuant to Section 5.03 in the Collection
Account an amount equal to the aggregate Purchase Amount for the Receivables
(including defaulted Receivables) and shall succeed to all interests in and to
the Trust.
(b) Upon any sale of the assets of the Trust pursuant to
Section 9.02 of the Trust Agreement, the Servicer shall instruct the Indenture
Trustee to deposit the proceeds from such sale after all payments and reserves
therefrom have been made (the "Insolvency Proceeds") in the Collection Account.
On the Payment Date on which the Insolvency Proceeds are deposited in the
Collection Account (or, if such proceeds are not so deposited on a Payment Date,
on the Payment Date immediately following such deposit), the Servicer shall
instruct the Indenture Trustee to make the following deposits (after the
application on such Payment Date of the Total Distribution Amount and funds on
deposit in the Reserve Account pursuant to Sections 5.04 and 5.05) from the
Insolvency Proceeds and any funds remaining on deposit in the Reserve Account
(including the proceeds of any sale of investments therein as described in the
following sentence):
(i) to the Note Distribution Account, any portion of the
accrued but unpaid interest on the Notes not otherwise deposited
into the Note Distribution Account on such Payment Date;
(ii) to the Note Distribution Account, the outstanding
principal balance of the Notes (after giving effect to the
reduction in the outstanding principal balance of the Notes to
result from the deposits made in the Note Distribution Account on
such Payment Date and on prior Payment Dates); and
(iii) to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction in the
Certificate Balance to result from the deposits made in the
Certificate Distribution Account on such Payment Date).
Any investments on deposit in the Reserve Account and Note Distribution Account
which will not mature on or before such Payment Date shall be sold by the
Indenture Trustee at such time as will result in the Indenture Trustee receiving
the proceeds from such sale not later than the Transfer Date preceding such
Payment Date. Any Insolvency Proceeds remaining after the deposits described
above shall be paid to the Seller.
(c) Notice of any termination of the Trust shall be given by
the Servicer to the Owner Trustee and the Indenture Trustee as soon as
practicable after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture
and the payment in full of the principal of and interest on, and the
cancellation of all of, the Notes, the Certificateholder will succeed to the
rights of the Noteholders hereunder other than Section 5.05(b) and the Owner
Trustee will succeed to the rights of the Indenture Trustee pursuant to this
Agreement.
(e) This Agreement shall terminate upon the termination of
the Trust.
39
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 AMENDMENT. The Agreement may be amended by the
Seller, the Servicer and the Trust, with the consent of the Indenture Trustee,
but without the consent of any of the Noteholders or the Certificateholder, to
cure any ambiguity, to correct or supplement any provision in this Agreement or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholder; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Owner Trustee and the Indenture Trustee, adversely affect in
any material respect the interests of any Noteholder or Certificateholder;
provided further that 10 days' prior written notice of any such amendment be
given to each Rating Agency and, if a Rating Agency notifies the Owner Trustee
that such amendment will result in a downgrading or withdrawal of the then
current rating of the Notes or the Certificate, such amendment shall become
effective with the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes and the consent of the
Certificateholder.
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 and the Indenture Trustee.
It shall not be necessary for the consent of the
Certificateholder or the Noteholders pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the
Owner Trustee and the Indenture Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel referred to
in Section 10.02(i)(1) and that all conditions precedent have been satisfied.
The Owner Trustee and the Indenture Trustee may, but shall not be obligated to,
enter
40
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, execute) such
financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain, and protect the interest of the Issuer and the
interests of the Indenture Trustee in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Owner
Trustee and the Indenture Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity, 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 principal executive office if, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment 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
principal executive office, 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 Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer and
has been pledged to the Indenture Trustee. Indication of the Issuer's and the
Indenture Trustee's interest in a Receivable shall be deleted from or modified
on the Servicer's computer systems when, and only when, the related Receivable
shall have been paid in full, purchased or repurchased.
41
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
equipment receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its
agents at any time during normal business hours to inspect, audit and make
copies of and abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Owner
Trustee or to the Indenture Trustee, within five Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part of the
Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificate furnished before such
request indicating removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Cut-off Date, an Opinion of 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.
(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.
42
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., First
Xxxxxxxxxx Xxxx Xxxxxxxx, 0 Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention:
Manager (702-786-5914), with a copy to Director, Corporate Finance, Deere &
Company, Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000 (309-765-5095), (b) in the
case of the Servicer, to Xxxx Deere Capital Corporation, 0 Xxxx Xxxxx Xxxxxx,
Xxxx, Xxxxxx 00000, Attention: Manager (702-786-5527), with a copy to Director,
Corporate Finance, Deere & Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000-0000 (309-765-5095), (c) in the case of the Issuer or the owner Trustee,
at the Corporate Trust Office (as defined in the Trust Agreement), (d) in the
case of the Indenture Trustee, at the Corporate Trust Office, (e) in the case of
Moody's, to 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
Issuer, the Owner Trustee, the Certificateholder, the Indenture Trustee and the
Noteholders and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.06 SEVERABILITY. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 10.07 SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 10.08 HEADINGS. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
43
SECTION 10.09 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 10.10 ASSIGNMENT TO INDENTURE TRUSTEE. The Seller
hereby acknowledges and consents to any mortgage, pledge, assignment and grant
of a security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Receivables and/or the assignment of any or all
of the Issuer's rights and obligations hereunder to the Indenture Trustee.
SECTION 10.11 NONPETITION COVENANTS.
(a) Notwithstanding any prior termination of this Agreement,
the Servicer and the Seller shall not, prior to the date which is one year and
one day after the termination of this Agreement with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement,
the Servicer shall not, prior to the date which is one year and one day after
the termination of this Agreement with respect to the Seller, acquiesce,
petition or otherwise invoke or cause the Seller to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Seller under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller.
SECTION 10.12 LIMITATION OF LIABILITY OF OWNER TRUSTEE AND
INDENTURE TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Bankers Trust (Delaware) not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Bankers Trust (Delaware) in its individual capacity have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by The Bank of
New York not in its individual
capacity but solely as Indenture Trustee and in no event shall The Bank of New
York have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or
44
in any of the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the Issuer.
SECTION 10.13 ADDITIONAL SECURITIES. The issuance of any
securities by Xxxx Deere Receivables, Inc., other than the Notes and the
Certificate, will require satisfaction of the Rating Agency Condition.
45
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 2001
By: Bankers Trust (Delaware)
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: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
XXXX DEERE CAPITAL CORPORATION,
Servicer,
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
Acknowledged and Accepted:
The Bank of New York,
not in its individual
capacity but solely
as Indenture Trustee,
By:
------------------------------------
Name:
Title:
46
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)
EXHIBIT C
LIST OF FISCAL MONTHS
Fiscal Month Cutoff Dates (By Fiscal Year)
Fiscal Calendar 2001 2002 2003 2004 2005 2006 2007
Month Month
1 November 00-Xxx-00 00-Xxx-00 00-Xxx-00 00-Xxx-00 00-Xxx-00 00-Xxx-00 00-Xxx-00
0 December 24-Dec-00 23-Dec-01 22-Dec-02 28-Dec-03 26-Dec-04 25-Dec-05 24-Dec-06
3 January 28-Jan-01 27-Jan-02 26-Jan-03 01-Feb-04 30-Jan-05 29-Jan-06 28-Jan-07
4 February 25-Feb-01 24-Feb-02 23-Feb-03 29-Feb-04 27-Feb-05 26-Feb-06 25-Feb-07
5 March 25-Mar-01 24-Mar-02 23-Mar-03 28-Mar-04 27-Mar-05 26-Mar-06 25-Mar-07
6 April 29-Apr-01 28-Apr-02 27-Apr-03 02-May-04 01-May-05 30-Apr-06 29-Apr-07
7 May 27-May-01 26-May-02 25-May-03 30-May-04 29-May-05 28-May-06 27-May-07
8 June 24-Jun-01 23-Jun-02 22-Jun-03 27-Jun-04 26-Jun-05 25-Jun-06 24-Jun-07
9 July 29-Jul-01 28-Jul-02 27-Jul-03 01-Aug-04 31-Jul-05 30-Jul-06 29-Jul-07
10 August 26-Aug-01 25-Aug-02 24-Aug-03 29-Aug-04 28-Aug-05 27-Aug-06 26-Aug-07
11 September 23-Sep-01 22-Sep-02 28-Sep-03 26-Sep-04 25-Sep-05 24-Sep-06 23-Sep-07
12 October 31-Oct-01 31-Oct-02 31-Oct-03 31-Oct-04 31-Oct-05 31-Oct-06 31-Oct-07
SCHEDULE D
Servicer's Certificate
The undersigned hereby certify that (i) they are,
respectively, a duly elected Treasurer 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
November 1, 2001 between Xxxx Deere Owner Trust 2001, Xxxx Deere Receivables,
Inc. and Xxxx Deere Capital Corporation.
Dated:
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
------------------------------------------
Name:
Title: Assistant Secretary
Payment Date:
--------------------------------------
(1) Servicing Fee:
(2) Administration Fee:
(3) Total Distribution Amount:
(4) Accrued and unpaid interest on the Notes:
(5) Class A Monthly Principal Distributable Amount:
(6) Deposit to Reserve Account from Collection Account to increase the
amount on deposit in the Reserve Account to the Specified Reserve
Account Balance:
(7) Deposit of Excess to Reserve Account from Collection Account:
(8) Specified Reserve Account Balance (before any distributions of excess):
(9) Reserve Account Balance over the Specified Reserve Account Balance
(before any distributions of excess):
(10) Excess Reserve Account Balance distributable to Seller
(5.05 (b) (i) or (ii))
(11) Certificateholder's Monthly Principal Distributable Amount:
(12) 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:
(13) (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:
(14) 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 the Certificate:
(15) Aggregate amount of Purchased Receivables for related Collection
Period:
(16) Reserve Account Balance after giving effect to all distributions:
(17) Specified Reserve Account Balance (after all distributions and
adjustments):
2
Officer's Certificate
The undersigned hereby certify that (i) they are,
respectively, a duly elected Treasurer 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 November 1, 2001
between Xxxx Deere Owner Trust 2001, 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: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
------------------------------------------
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) Certificate:
per $1,000 original principal amount:
(f) 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) Total:
(3) (a) Pool Balance at end of related Collection Period:
(b) Note Value at end of related Collection Period:
(4) After giving effect to distributions on this Payment Date:
(a) (i) Outstanding principal amount of
Class A-1 Notes:
(ii) Outstanding principal amount of Class A-2 Notes:
(iii) Outstanding principal amount of Class A-3 Notes:
(iv) Outstanding principal amount of Class A-4 Notes:
(b) Certificate Balance:
(5) Amount of Servicing Fee:
per $1,000 original principal amount of Notes and Certificate:
(6) Amount of Administration Fee:
(7) Aggregate Purchase Amounts for Collection Period:
(8) (i) Amount in Reserve Account:
(ii) Specified Reserve Account Balance:
(9) Amount of any payments in respect of the Receivables that are more than
60 days past due as of the end of the related Collection Period:
2
SCHEDULE F
Statement for Noteholders
pursuant to Section 5.06(b)
Payment Date:
--------------------------------------
(1) Amount of principal being paid on Notes:
(a) Class A-1 Notes:
per $1,000 original principal amount:
(b) Class A-2 Notes:
per $1,000 original principal amount:
(c) Class A-3 Notes:
per $1,000 original principal amount:
(d) Class A-4 Notes:
per $1,000 original principal amount:
(e) 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) Total:
(3) (a) Pool Balance at end of related Collection Period:
(b) Note Value at end of related Collection Period:
(4) After giving effect to distributions on this Payment Date:
(a) (i) Outstanding principal amount of Class A-1 Notes:
(ii) Outstanding principal amount of Class A-2 Notes:
(iii) Outstanding principal amount of Class A-3 Notes:
(iv) Outstanding principal amount of Class A-4 Notes:
(b) (i) Certificate Balance:
(ii) Certificate Factor:
(5) Amount of Servicing Fee:
per $1,000 original principal amount of
Notes and Certificate:
(6) Amount of Administration Fee:
(7) Aggregate Purchase Amounts for Collection Period:
(8) (i) Amount in Reserve Account:
(ii) Specified Reserve Account Balance:
(9) Amount of any payments in respect of the Receivables that are more than
60 days past due as of the end of the related Collection Period:
2
SCHEDULE G
Instructions to the Trustee for payments and deposits pursuant to
Section 5.04(b) of the
Sale and Servicing Agreement:
Payment Date: ____________________
(i) Payment of Servicing Fee (including any previously
unpaid Servicing Fees) to Servicer: ____________________
(ii) Payment of Administration Fee to Administrator: ____________________
(iii) Accrued and unpaid interest on the Notes for such
Payment Date: ____________________
(iv) Class A Monthly Principal Distributable Amount to be deposited into
Note Distribution Account: ____________________
(v) Deposit to Reserve Account to increase the amounts on deposit in the
Reserve Account to the Specified Reserve Account Balance: ____________
(vi) Certificate Monthly Principal Distributable Amount to be deposited into
Certificate Distribution Account: ____________________
(vii) Deposit to Reserve Account: ____________________
