Contract
EXHIBIT
99.2
EXECUTION
COPY
ADMINISTRATION
AGREEMENT, dated as of April 15, 2008, among XXXX DEERE OWNER TRUST 2008, a
Delaware statutory trust (the “Issuing Entity”),
XXXX DEERE CAPITAL CORPORATION, a Delaware corporation, as administrator (the
“Administrator”), and
U.S. Bank National Association, a national banking association, not in its
individual capacity but solely as indenture trustee (the “Indenture
Trustee”).
W I T N E
S S E T H
WHEREAS,
the Issuing Entity is issuing the Class A-1 2.74080% Asset Backed Notes (the
“A-1 Notes”),
the Class A-2 3.63% Asset Backed Notes (the “A-2 Notes”), the
Class A-3 4.18% Asset Backed Notes (the “A-3 Notes”) and the
Class A-4 4.89% Asset Backed Notes (the “A-4 Notes” and
together with the A-1 Notes, A-2 Notes and A-3 Notes, the “Notes”) pursuant to
the Indenture, dated as of April 15, 2008 (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the “Indenture”), between
the Issuing Entity and the Indenture Trustee.
WHEREAS,
the Issuing Entity has entered into certain agreements in connection with the
issuance of the Notes and the issuance of certain beneficial ownership interests
of the Issuing Entity, including (i) a Sale and Servicing Agreement, dated as of
April 15, 2008 (the “Sale and Servicing
Agreement”), among the Issuing Entity, Xxxx Deere Capital Corporation, as
Servicer, and Xxxx Deere Receivables, Inc., a Nevada corporation, as seller (the
“Seller”), (ii)
a Depository Agreement, dated April 15, 2008 (the “Depository
Agreement”), between the Issuing Entity and The Depository Trust Company,
(iii) the Indenture and (iv) a Trust Agreement, dated as of April 15, 2008 (the
“Trust
Agreement”), between the Seller and BNYM (Delaware), a Delaware banking
corporation, as owner trustee (the “Owner Trustee”)(the
Sale and Servicing Agreement, the Depository Agreement, the Indenture and the
Trust Agreement being hereinafter referred to collectively as the “Related
Agreements”);
WHEREAS,
pursuant to the Related Agreements, the Issuing Entity and the Owner Trustee are
required to perform certain duties in connection with (a) the Notes and the
collateral therefor pledged pursuant to the Indenture (the “Collateral”) and (b)
the beneficial ownership interests in the Issuing Entity (the holders of such
interests being referred to herein as the “Owners”);
WHEREAS,
the Issuing Entity and the Owner Trustee desire to have the Administrator
perform certain of the duties of the Issuing Entity and the Owner Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuing Entity and the Owner Trustee may from time to time request;
and
WHEREAS,
the Administrator has the capacity to provide the services required hereby and
is willing to perform such services for the Issuing Entity and the Owner Trustee
on the terms set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1.
Duties of the
Administrator.
(a)
Duties with Respect to the Depository Agreement and the Indenture.
(i)
The Administrator agrees to perform all its duties as Administrator and the
duties of the Issuing Entity and the Owner Trustee under the Depository
Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuing Entity under the Indenture and
the Depository Agreement. The Administrator shall monitor the
performance of the Issuing Entity or the Owner Trustee and shall advise the
Owner Trustee when action is necessary to comply with the Issuing Entity’s or
the Owner Trustee’s duties under the Indenture or the Depository
Agreement. The Administrator shall prepare for execution by the
Issuing Entity or the Owner Trustee or shall cause the preparation by other
appropriate persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuing Entity or the
Owner Trustee to prepare, file or deliver pursuant to the Indenture or the
Depository Agreement. In furtherance of the foregoing, the
Administrator shall take all appropriate action that it is the duty of the
Issuing Entity or the Owner Trustee to take pursuant to the Indenture including,
without limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (references are to sections of the
Indenture):
(A)
the duty to cause the Note Register to be kept and to give the Indenture Trustee
notice of any appointment of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.04);
(B)
the notification of Noteholders of the final principal payment on their
Notes (Section 2.07(b));
(C)
the fixing or causing to be fixed of any special record date and the
notification of the Indenture Trustee and Noteholders with respect to special
payment dates, if any (Section 2.07(c));
(D)
the preparation of or obtaining of the documents and instruments required for
authentication of the Notes and delivery of the same to the Indenture Trustee
(Section 2.02);
(E)
the preparation, obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of collateral (Section
2.09);
(F)
the duty to cause newly appointed Paying Agents, if any, to deliver to the
Indenture Trustee the instrument specified in the Indenture regarding funds held
in trust (Section 3.03);
(G)
the direction to the Indenture Trustee to deposit monies with Paying Agents, if
any, other than the Indenture Trustee (Section 3.03);
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(H)
the obtaining and preservation of the Issuing Entity’s qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in the
Trust Estate (Section 3.04);
(I)
the preparation of all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and other instruments,
in accordance with Section 3.05 of the Indenture, necessary to protect the Trust
Estate (Section 3.05);
(J)
the delivery of the Opinion of Counsel on the Closing Date and the annual
delivery of Opinions of Counsel, in accordance with Section 3.06 of the
Indenture, as to the Trust Estate, and the annual delivery of the Officers’
Certificate and certain other statements, in accordance with Section 3.09 of the
Indenture, as to compliance with the Indenture (Sections 3.06 and
3.09);
(K)
the identification to the Indenture Trustee in an Officers’ Certificate of a
Person with whom the Issuing Entity has contracted to perform its duties under
the Indenture (Section 3.07(b));
(L)
the notification of the Indenture Trustee and the Rating Agencies of a Servicer
Default pursuant to the Sale and Servicing Agreement and, if such Servicer
Default arises from the failure of the Servicer to perform any of its duties
under the Sale and Servicing Agreement, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(M)
the preparation and obtaining of documents and instruments required for the
release of the Issuing Entity from its obligation under the Indenture (Section
3.11);
(N)
the delivery of notice to the Indenture Trustee of each Event of Default and
each default by the Servicer or Seller under the Sale and Servicing Agreement
(Section 3.19);
(O)
the monitoring of the Issuing Entity’s obligations as to the satisfaction and
discharge of the Indenture and the preparation of an Officers’ Certificate and
the obtaining of the Opinion of Counsel and the Independent Certificate relating
thereto (Section 4.01);
(P)
the compliance with any written directive of the Indenture Trustee with respect
to the sale of the Trust Estate in a commercially reasonable manner if an Event
of Default shall have occurred and be continuing (Section 5.04);
(Q)
the preparation and delivery of notice to Noteholders of the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee (Section
6.08);
(R)
the preparation of any written instruments required to confirm more fully the
authority of any co-trustee or separate trustee and any written instruments
necessary in
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connection
with the resignation or removal of any co-trustee or separate trustee (Sections
6.08 and 6.10);
(S)
the furnishing of the Indenture Trustee with the names and addresses of
Noteholders during any period when the Indenture Trustee is not the Note
Registrar (Section 7.01);
(T)
the preparation and filing with the Commission, any applicable State agencies
and the Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable State agencies and the
transmission of such summaries, as necessary, to the Noteholders (including,
without limitation, the preparation, execution and filing of all certificates or
other documents required to be delivered by the Trust pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 or the rules and regulations promulgated thereunder
unless otherwise required by law or regulation) (Section 7.03);
(U)
the opening of one or more accounts in the Indenture Trustee’s name, the
preparation of Issuing Entity Orders and Officers’ Certificates and Opinions of
Counsel and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.02 and
8.03);
(V)
the preparation of an Issuing Entity Request and Officers’ Certificate and the
obtaining of an Opinion of Counsel and Independent Certificates, if necessary,
for the release of the Trust Estate as defined in the Indenture (Sections 8.04
and 8.05);
(W)
the preparation of Issuing Entity Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and the mailing
to the Noteholders of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(X)
the preparation and, after execution by the Owner Trustee on behalf of the
Issuing Entity, delivery of new Notes conforming to any supplemental indenture
(Section 9.06);
(Y)
the notification of Noteholders of redemption of the Notes or the duty to cause
the Indenture Trustee to provide such notification (Section 10.02);
(Z)
the preparation and delivery of all Officers’ Certificates, Opinions of Counsel
and Independent Certificates with respect to any requests by the Issuing Entity
to the Indenture Trustee to take any action under the Indenture (Section
11.01(a));
(AA)
the preparation and delivery of Officers’ Certificates and the obtaining of
Independent Certificates, if necessary, for the release of property from the
lien of the Indenture (Section 11.01(b));
(BB)
the notification of the Rating Agencies, upon the failure of the Indenture
Trustee to give such notification, of the information required pursuant to
Section 11.04 (Section 11.04);
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(CC)
the preparation and delivery to Noteholders and the Indenture Trustee of any
agreements with respect to alternate payment and notice provisions (Section
11.06); and
(DD)
the recording of the Indenture, if applicable (Section 11.15).
(ii)
The Administrator (other than at any time when the Indenture Trustee, in the
capacity as successor Servicer, is also acting as successor Administrator)
will:
(A)
pay the Indenture Trustee from time to time reasonable compensation for all
services rendered by the Indenture Trustee under the Indenture (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B)
except as otherwise expressly provided in the Indenture, reimburse the Indenture
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Indenture Trustee in accordance with any provision of
the Indenture (including the reasonable compensation, expenses and disbursements
of its agents and either in-house counsel or outside counsel, but not both),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(C)
indemnify the Indenture Trustee and its agents for, and hold them harmless
against, any losses, liability or expense incurred without negligence or bad
faith on their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Indenture, including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties under the Indenture;
(D)
pay the Owner Trustee from time to time reasonable compensation for all services
rendered by the Owner Trustee under the Trust Agreement (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(E)
except as otherwise expressly provided in the Trust Agreement, reimburse the
Owner Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Owner Trustee in accordance with any provision
of the Trust Agreement (including the reasonable compensation, expenses and
disbursements of its agents and either in-house counsel or outside counsel, but
not both), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(F)
indemnify the Owner Trustee and its agents for, and to hold them harmless
against, any losses, liability or expense incurred without negligence or bad
faith on their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust Agreement,
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Trust Agreement.
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(b)
Additional Duties.
(i)
In addition to the duties of the Administrator set forth above, the
Administrator shall perform such calculations and shall prepare or shall cause
the preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuing Entity or the Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuing Entity or the Owner
Trustee to take pursuant to the Related Agreements.
(ii)
Notwithstanding anything in this Agreement or the Related Agreements to the
contrary, the Administrator shall be responsible for performance of the duties
of the Owner Trustee set forth in Section 5.05 of the Trust Agreement with
respect to, among other things, accounting and reports to the
Owner.
(iii)
The Administrator shall perform the duties of the Administrator specified in
Section 10.02 of the Trust Agreement required to be performed in connection with
the resignation or removal of the Owner Trustee, and any other duties expressly
required to be performed by the Administrator under the Trust
Agreement.
(iv)
In carrying out the foregoing duties or any of its other obligations under this
Agreement, the Administrator may enter into transactions with or otherwise deal
with any of its affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Administrator’s
opinion, no less favorable to the Issuing Entity than would be available from
unaffiliated parties.
(v)
The Administrator hereby agrees to execute on behalf of the Issuing Entity all
such documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Issuing Entity to prepare, file or deliver pursuant to
the Basic Documents.
(c)
Non-Ministerial Matters.
(i)
With respect to matters that in the reasonable judgment of the Administrator are
non-ministerial, the Administrator shall not take any action unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee and the Indenture Trustee of the proposed action and
the Owner Trustee and the Indenture Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding
sentence, “non-ministerial matters” shall include, without
limitation:
(A)
the amendment of or any supplement to the Indenture;
(B)
the initiation of any claim or lawsuit by the Issuing Entity and the compromise
of any action, claim or lawsuit brought by or against the Issuing
Entity;
(C)
the amendment, change or modification of the Related Agreements;
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(D)
the appointment of successor Note Registrars, successor Paying Agents and
successor Indenture Trustees pursuant to the Indenture or the appointment of
successor Administrators or successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E)
the removal of the Indenture Trustee.
(ii)
Notwithstanding anything to the contrary in this Agreement, the Administrator
shall not be obligated to, and shall not, (x) make any payments to the
Noteholders under the Related Agreements, (y) sell the Trust Estate pursuant to
Section 5.04 of the Indenture or (z) take any other action that the Issuing
Entity directs the Administrator not to take on its behalf.
2.
Records. The
Administrator shall maintain appropriate books of account and records relating
to services performed hereunder, which books of account and records shall be
accessible for inspection by the Issuing Entity, the Owner Trustee and the
Depositor and their respective agents at any time during normal business
hours.
3.
Compensation. As
compensation for the performance of the Administrator’s obligations under this
Agreement and as reimbursement for its expenses related thereto, the
Administrator shall be entitled to $100 per month which shall be solely an
obligation of the Issuing Entity.
4.
Additional Information
to Be Furnished to the Issuing Entity. The Administrator shall
furnish to the Issuing Entity from time to time such additional information
regarding the Collateral as the Issuing Entity shall reasonably
request.
5.
Independence of the
Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and, except as set forth
herein, shall not be subject to the supervision of the Issuing Entity or the
Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized
by the Issuing Entity, the Administrator shall have no authority to act for or
represent the Issuing Entity or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuing Entity or the Owner
Trustee.
6.
No Joint
Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuing Entity or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7.
Other Activities of
the Administrator. Nothing herein shall prevent the
Administrator or its affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of or in competition with the Issuing Entity, the
Owner Trustee or the Indenture Trustee.
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8.
Term of Agreement;
Resignation and Removal of the Administrator.
(a)
This Agreement shall continue in force until the termination of the Issuing
Entity, upon which event this Agreement shall automatically
terminate.
(b)
Subject to Section 8(e), the Administrator may resign its duties hereunder by
providing the Issuing Entity with at least 60 days’ prior written
notice.
(c)
Subject to Section 8(e), the Issuing Entity may remove the Administrator without
cause by providing the Administrator with at least 60 days’ prior written
notice.
(d)
Subject to Section 8(e), at the sole option of the Issuing Entity, the
Administrator may be removed immediately upon written notice of termination from
the Issuing Entity to the Administrator if any of the following events shall
occur:
(i)
the Administrator shall default in the performance of any of its duties under
this Agreement and, after notice of such default, shall not cure such default
within ten days (or, if such default cannot be cured in such time, shall not
give within ten days such assurance of cure as shall be reasonably satisfactory
to the Issuing Entity);
(ii)
a court having jurisdiction in the premises shall enter a decree or order for
relief, and such decree or order shall not have been vacated within 60 days, in
respect of the Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect or
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii)
the Administrator shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The
Administrator agrees that if any of the events specified in clause (ii) or (iii)
of this Section shall occur, it shall give written notice thereof to the Issuing
Entity and the Indenture Trustee within seven days after the happening of such
event.
(e)
No resignation or removal of the Administrator pursuant to this Section shall be
effective until (i) a successor Administrator shall have been appointed by the
Issuing Entity and (ii) such successor Administrator shall have agreed in
writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder; provided, however, that, if a successor
Administrator has not been appointed and accepted its appointment hereunder as
administrator (x) within 60 days following delivery of the notice referred to in
Section 8(b) or 8(c) or (y) upon the removal of the Administrator pursuant to
Section 8(d), then the Servicer shall automatically become successor
Administrator.
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(f)
The appointment of any successor Administrator shall be effective only after
satisfaction of the Rating Agency Condition with respect to the proposed
appointment.
9.
Action upon
Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuing Entity all property
and documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the Administrator
shall cooperate with the Issuing Entity and take all reasonable steps requested
to assist the Issuing Entity in making an orderly transfer of the duties of the
Administrator.
10.
Notices. Any
notice, report or other communication given hereunder shall be in writing and
addressed as follows:
(a)
if to the Issuing Entity or the Owner Trustee, to
Xxxx
Deere Owner Trust 2008
c/o BNYM
(Delaware)
000 Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention: Xxxxxxxx
X. Xxxxx, Vice President
with a
copy to
The Bank
of New York
000
Xxxxxxx Xxxxxx, 0X
Xxx Xxxx,
XX 00000
Attention: Xxxxxxx
Xxxxxx
(b)
if to the Administrator, to
Xxxx
Deere Capital Corporation
Xxxxx
000
0 Xxxx
Xxxxx Xxxxxx
Xxxx,
XX 00000
Attention: Manager
with a
copy to
Deere
& Company
Xxx Xxxx
Xxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: Treasury
Department, Assistant Treasurer
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(c)
if to the Indenture Trustee, to
U.S. Bank
National Association
000 X.
XxXxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Attention:
JDOT 2008
or to
such other address as any party shall have provided to the other parties in
writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, sent
by facsimile or hand-delivered to the address of such party as provided above,
except that notices to the Issuing Entity, the Owner Trustee or the Indenture
Trustee are effective only upon receipt.
11.
Amendments. This
Agreement may be amended from time to time by a written amendment duly executed
and delivered by the Issuing Entity, the Administrator and the Indenture
Trustee, with the written consent of the Owner Trustee, without the consent of
the Noteholders and the Certificateholder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholder; provided that such amendment will not, materially and
adversely affect the interest of any Noteholder or the Certificateholder;
provided further that 10 days’ prior written notice of any such amendment be
given to each Rating Agency and, if a Rating Agency notifies the Owner Trustee
that such amendment will result in a downgrading or withdrawal of the then
current rating of any class of the Notes, such amendment shall become effective
with the consent of the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes; provided further, that any solicitation of
such consent shall disclose the downgrading or withdrawal that would result from
such amendment. This Agreement may also be amended by the Issuing
Entity, the Administrator and the Indenture Trustee with the written consent of
the Owner Trustee and the holders of Notes evidencing at least a majority in the
Outstanding Amount of the Notes and the holder of the Certificate (which
consents, will not be unreasonably withheld) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of Noteholders or the
Certificateholder; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on Receivables or distributions
that are required to be made for the benefit of the Noteholders or the
Certificateholder or (ii) reduce the aforesaid percentage of the holders of
Notes which are required to consent to any such amendment or eliminate the
consent of the Certificateholder, without the consent of the holders of all the
outstanding Notes and the Certificate. Notwithstanding the foregoing,
the Administrator may not amend this Agreement without the permission of Xxxx
Deere Receivables, Inc., as Depositor under the Trust Agreement, which
permission shall not be unreasonably withheld.
12.
Successors and
Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuing Entity and the Owner Trustee and subject to the satisfaction of the
Rating Agency Condition in respect thereof. An
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assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuing Entity or the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided that
such successor organization executes and delivers to the Issuing Entity, the
Owner Trustee and the Indenture Trustee an agreement in which such corporation
or other organization agrees to be bound hereunder by the terms of said
assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
13.
Definitions. Capitalized
terms shall have the meanings set forth herein or in the recitals
hereto. Any capitalized term used herein but not defined herein or in
the recitals hereto shall have the meaning assigned to such term in the
Indenture.
14.
GOVERNING
LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
15.
Headings. The
section headings hereof have been inserted for convenience of reference only and
shall not be construed to affect the meaning, construction or effect of this
Agreement.
16.
Counterparts. This
Agreement may be executed in counterparts, each of which when so executed shall
together constitute but one and the same agreement.
17.
Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18.
Not Applicable to Xxxx
Deere Capital Corporation in Other Capacities. Nothing in this
Agreement shall affect any obligation Xxxx Deere Capital Corporation may have in
any other capacity.
19.
Limitation of
Liability of the Owner Trustee and the Indenture Trustee.
(a)
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by BNYM (Delaware) not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuing Entity and in no event shall
BNYM (Delaware) in its individual capacity or any beneficial owner of the
Issuing Entity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuing Entity hereunder, as
to all of which recourse shall be had solely to the assets of the Issuing
Entity. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuing Entity 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.
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(b)
Notwithstanding anything contained herein to the contrary, this Agreement has
been countersigned by U.S. Bank National Association not in its individual
capacity but solely as Indenture Trustee, and in no event shall U.S. Bank
National Association have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuing Entity hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuing
Entity.
20.
Third-Party
Beneficiary. The Owner Trustee is a third-party beneficiary to
this Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the day and year first above written.
| XXXX DEERE OWNER TRUST 2008 | ||
| By: BNYM (DELAWARE), not in its individual capacity but solely as owner trustee | ||
| By: | /s/ Xxxxxxxx X. Xxxxx | |
| Name: Xxxxxxxx X. Xxxxx | ||
| Title: Vice President | ||
| U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as indenture trustee | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
| Title: Vice President | ||
| XXXX DEERE CAPITAL CORPORATION, as Administrator | ||
| By: | /s/ Xxxxxxx X. Xxx Xxxxxx | |
| Name: Xxxxxxx X. Xxx Xxxxxx | ||
| Title: Assistant Secretary | ||
