EXHIBIT 4.3
SALE AND SERVICING AGREEMENT
among
XXXX DEERE OWNER TRUST 1999-A
Issuer
XXXX DEERE RECEIVABLES, INC.
Seller
and
XXXX DEERE CAPITAL CORPORATION
Servicer
Dated as of May 15, 1999
TABLE OF CONTENTS Page
ARTICLE I Definitions
SECTION 1.01 Definitions 1
SECTION 1.02 Other Definitional Provisions 13
SECTION 1.03 Calculations 14
ARTICLE II Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables 14
ARTICLE III The Receivables
SECTION 3.01 Representations and Warranties of Seller 15
SECTION 3.02 Repurchase by Seller upon Breach 15
SECTION 3.03 Custody of Receivable Files 16
SECTION 3.04 Duties of Servicer as Custodian 16
SECTION 3.05 Instructions; Authority to Act 17
SECTION 3.06 Custodian's Indemnification 17
SECTION 3.07 Effective Period and Termination 17
ARTICLE IV Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer 18
SECTION 4.02 Collection of Receivable Payments 18
SECTION 4.03 Realization upon Receivables 19
SECTION 4.04 Physical Damage Insurance 19
SECTION 4.05 Maintenance of Security Interests
in Financed Equipment 19
SECTION 4.06 Covenants of Servicer 19
SECTION 4.07 Purchase by Servicer of Receivables
upon Breach 19
SECTION 4.08 Servicing Fee 20
SECTION 4.09 Servicer's Certificate 20
SECTION 4.10 Annual Statement as to Compliance;
Notice of Default 20
SECTION 4.11 Annual Independent Certified Public
Accountants' Report 21
SECTION 4.12 Access to Certain Documentation and
Information Regarding Receivables 21
SECTION 4.13 Servicer Expenses 21
SECTION 4.14 Appointment of Sub-Servicer 22
ARTICLE V Distributions; Reserve Account; Statements
to Certificateholders and Noteholders
SECTION 5.01 Establishment of Trust Accounts 22
SECTION 5.02 Collections 24
SECTION 5.03 Additional Deposits 25
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SECTION 5.04 Distributions 25
SECTION 5.05 Reserve Account 26
SECTION 5.06 Statements to the Certificateholder
and Noteholders 26
SECTION 5.07 Net Deposits 28
ARTICLE VI The Seller
SECTION 6.01 Representations of Seller 28
SECTION 6.02 Corporate Existence 30
SECTION 6.03 Liability of Seller; Indemnities 30
SECTION 6.04 Merger or Consolidation of, or
Assumption of the Obligations of, Seller 31
SECTION 6.05 Limitation on Liability of Seller
and Others 32
SECTION 6.06 Seller May Own the Certificate or Notes 32
ARTICLE VII The Servicer
SECTION 7.01 Representations of Servicer 32
SECTION 7.02 Indemnities of Servicer 33
SECTION 7.03 Merger or Consolidation of, or Assumption
of the Obligations of, Servicer 35
SECTION 7.04 Limitation on Liability of Servicer
and Others 35
SECTION 7.05 JDCC Not to Resign as Servicer 36
SECTION 7.06 Servicer to Act as Administrator 36
ARTICLE VIII Default
SECTION 8.01 Servicer Default 36
SECTION 8.02 Appointment of Successor 37
SECTION 8.03 Notification to Noteholders and the
Certificateholder 38
SECTION 8.04 Waiver of Past Defaults 38
ARTICLE IX Termination
SECTION 9.01 Optional Purchase of All Receivables
and Termination 39
ARTICLE X Miscellaneous Provisions
SECTION 10.01 Amendment 40
SECTION 10.02 Protection of Title to Trust 41
SECTION 10.03 Notices 43
SECTION 10.04 Assignment 43
SECTION 10.05 Limitations on Rights of Others 43
SECTION 10.06 Severability 43
SECTION 10.07 Separate Counterparts 44
SECTION 10.08 Headings 44
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SECTION 10.09 Governing Law 44
SECTION 10.10 Assignment to Indenture Trustee 44
SECTION 10.11 Nonpetition Covenants 44
SECTION 10.12 Limitation of Liability of Owner Trustee
and Indenture Trustee 44
SECTION 10.13 Additional Securities 45
SCHEDULES
SCHEDULE A - Schedule of Receivables 47
SCHEDULE B - Location of Receivable Files 48
SCHEDULE C - List of Fiscal Months 49
SCHEDULE D - Servicer's Certificate 50
SCHEDULE E - Statement to Certificateholder 53
SCHEDULE F - Statement to Noteholders 55
SCHEDULE G - Payment and Deposit Instructions to
Indenture Trustee 57
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This SALE AND SERVICING AGREEMENT dated as of May 15,
1999, among XXXX DEERE OWNER TRUST 1999-A, 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 May 15, 1999 between the Trust, JDCC, as
Administrator, and The Bank of New York, as indenture trustee,
as amended from time to time.
"Administration Fee" means the fee payable to the
Administrator pursuant to Section 3 of the Administration
Agreement.
"Administrator" means the administrator under the
Administration Agreement.
"Agreement" means this Sale and Servicing Agreement, as
the same may be amended and supplemented from time to time.
"Amount Financed" with respect to a Receivable means the
amount advanced under the Receivable toward the purchase price
of the related Financed Equipment and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means
the fixed annual rate of finance charges specified in the
related Contract.
"Certificate" means the Certificate (as defined in the
Trust Agreement).
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"Certificate Adjusted Principal Distributable Amount"
means, with respect to any Payment Date, an amount equal to
the excess, if any, of (a) the outstanding principal amount of
the Certificates (before giving effect to payments on such
Payment Date) less any Certificate Principal Carryover
Shortfall over (b) the Certificate Percentage of the
outstanding Note Value as of the end of the related Collection
Period; provided, however, that if on such Payment Date any
principal of the Class A-1 Notes remains outstanding, the
Certificate Adjusted Principal Distributable Amount will not
exceed an amount equal to the Unscheduled Principal Payments
for such Payment Date less the Class B Adjusted Principal
Distributable Amount.
"Certificate Balance" equals, initially, $12,086,832 and,
on each day thereafter, equals the initial Certificate Balance
reduced by all amounts allocable to principal previously
distributed to the Certificateholder.
"Certificate Distribution Account" has the meaning
assigned to such term in the Trust Agreement.
"Certificateholder" has the meaning assigned to such term
in the Trust Agreement.
"Certificate Monthly Principal Distributable Amount"
means, with respect to any Payment Date the sum of (a) the
Certificate Adjusted Principal Distributable Amount and (b)
the Certificate Principal Carryover Shortfall; provided that
the Certificate Monthly Principal Distributable Amount shall
not exceed the Certificate Balance.
"Certificate Percentage" will be 1.50%.
"Certificate Principal Carryover Shortfall" means, for any
Payment Date, the excess of the Certificate Monthly Principal
Distributable Amount for the preceding Payment Date over (b)
the amount of principal actually paid to the Certificateholder
on such preceding Payment Date.
"Class A Monthly Principal Distributable Amount" means,
for any Payment Date, the Principal Distributable Amount less
the sum of (i) the Class B Monthly Principal Distributable
Amount and (ii) the Certificate Monthly Principal
Distributable Amount; provided that the Class A Monthly
Principal Distributable Amount will not exceed the outstanding
principal balance of the Class A Notes; provided further that
on (i) the Class A-1 Final Payment Date, the Class A Monthly
Principal Distributable Amount will at least equal the
outstanding principal balance of the Class A-1 Notes, (ii) the
Class A-2 Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding
principal balance of the Class A-2 Notes, (iii) the Class A-3
Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding
principal balance of the Class A-3 Notes, and (iv) the Class
A-4 Final Payment Date, the Class A Monthly Principal
Distributable Amount will at least equal the outstanding
principal balance of the Class A-4 Notes.
"Class A-1 Note Final Payment Date" means June 19, 2000.
"Class A-1 Note Interest Rate" means a rate per annum
equal to 4.9988%.
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"Class A-1 Notes" means the Class A-1 Notes (as defined in
the Indenture).
"Class A-2 Note Final Payment Date" means August 15, 2001.
"Class A-2 Note Interest Rate" means a rate per annum
equal to 5.466%.
"Class A-2 Notes" means the Class A-2 Notes (as defined in
the Indenture).
"Class A-3 Note Final Payment Date" means October 15,
2002.
"Class A-3 Note Interest Rate" means a rate per annum
equal to 5.94%.
"Class A-3 Notes" means the Class A-3 Notes (as defined in
the Indenture).
"Class A-4 Note Final Payment Date" means October 17,
2005.
"Class A-4 Note Interest Rate" means a rate per annum
equal to 6.12%.
"Class A-4 Notes" means the Class A-4 Notes (as defined in
the Indenture).
"Class B Adjusted Principal Distributable Amount" means,
for any Payment Date, an amount equal to the excess, if any,
of (a) the outstanding principal balance of the Class B Note
(before giving effect to payments on such Payment Date) less
any Class B Principal Carryover Shortfall over (b) the Class B
Percentage of the Note Value as of the end of the related
Collection Period; provided that if on such Payment Date any
principal of the A-1 Notes remains outstanding, then the Class
B Adjusted Principal Distributable Amount will not exceed an
amount equal to the Unscheduled Principal Payments for such
Payment Date. Notwithstanding the above, on and after the
Payment Date on which the principal balance of the Class A
Notes is reduced to zero, the Class B Adjusted Principal
Distributable Amount will be the Principal Distributable
Amount less the sum of (i) the amount, if any, necessary to
reduce the aggregate principal balances of the Class A Notes
to zero and (ii) the Certificate Monthly Principal
Distributable Amount.
"Class B Note Final Payment Date" means October 17, 2005.
"Class B Note Interest Rate" means a rate par annum equal
to 6.10%.
"Class B Monthly Principal Distributable Amount" means,
for any Payment Date, the sum of (a) the Class B Adjusted
Principal Distributable Amount and (b) the Class B Principal
Carryover Shortfall; provided that the Class B Monthly
Principal Distributable Amount will not exceed the outstanding
principal amount of the Class B Note; provided further that on
the Class B Final Payment Date, the Class B Monthly Principal
Distributable Amount shall equal the outstanding principal
amount of the Class B Note.
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"Class B Principal Carryover Shortfall" means, as for any
Payment Date, the excess of the Class B Monthly Principal
Distributable Amount for the preceding Payment Date over the
amount of principal actually paid to the Class B Noteholder on
such preceding Payment Date.
"Class B Note" means the Class B Note (as defined in the
Indenture).
"Class B Percentage" means 4.0%.
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 5.01.
"Collection Period" means, with respect to the first
Payment Date, the period from the Cut-off Date through the
Fiscal Month ending on May 30, 1999 and, with respect to each
subsequent Payment Date, the Fiscal Month ending immediately
preceding such Payment Date. Any amount stated "as of the
close of business on the last day of a Collection Period"
shall give effect to the following calculations as determined
as of the end of the day on such last day: (1) all
applications of collections and (2) all distributions to be
made on the following Payment Date.
"Contract" means an agricultural or construction equipment
retail installment sale or loan contract.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its
corporate trust business shall be administered, which office
at date of the execution of this Agreement is located at 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 April 30, 1999.
"Dealer" means the dealer who sold an item of Financed
Equipment securing a Receivable.
"Deere" means Deere & Company, a Delaware corporation, and
its successors.
"Delivery" when used with respect to Trust Account
Property the perfection and priority in which is governed by
the law of a jurisdiction which has adopted the 1994 Revision
to Article 8 of the UCC means:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other
obligations that constitute "instruments" within the meaning
of Section 9-105(l)(i) of the UCC (other than certificated
securities) and are susceptible to physical delivery, transfer
thereof to the Indenture Trustee or its nominee or custodian
by physical delivery to the Indenture Trustee or its nominee
or custodian endorsed to, or registered in the name of, the
Indenture Trustee or its nominee or custodian or endorsed in
blank, and such additional or
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alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Trust
Property to the Indenture Trustee or its nominee or custodian
free and clear of any adverse claims, consistent with changes
in applicable law or regulations or the interpretation
thereof;
(b) with respect to a "certificated security" (as
defined in Section 8-102(a)(4) of the UCC), transfer thereof
(i) by physical delivery of such certificated security
endorsed to, or registered in the name of, the Indenture
Trustee or its nominee or custodian or endorsed in blank, (ii)
by physical delivery of such certificated security in
registered form to a "securities intermediary" (as defined in
Section 8-102(a)(14) of the UCC) acting on behalf of the
Indenture Trustee if the certificated security has been
specially endorsed to the Indenture Trustee by an effective
endorsement;
(c) with respect to any security issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the
Federal National Mortgage Association that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations, the following procedures, all
in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC: book-
entry registration of such Trust Account Property to an
appropriate book-entry account maintained with a Federal
Reserve Bank by a securities intermediary which is also a
"depository" pursuant to applicable Federal regulations and
issuance by such securities intermediary of a deposit advice
or other written confirmation of such book-entry registration
to the Indenture Trustee or its nominee or custodian of the
purchase by the Indenture Trustee or its nominee or custodian
of such book-entry securities; the identification by the
Federal Reserve Bank of such book-entry certificates on its
records being credited to the securities intermediary's
Participant's securities account; the making by such
securities intermediary of entries in its books and records
identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as
belonging to the Indenture Trustee or its nominee or custodian
and indicating that such custodian holds such Trust Account
Property solely as agent for the Indenture Trustee or its
nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account
Property to the Indenture Trustee or its nominee or custodian,
consistent with changes in applicable law or regulations or
the interpretation thereof; and
(d) with respect to any item of Trust Account Property
that is an uncertificated security under Article 8 of the UCC
and that is not governed by clause (c) above, registration on
the books and records of the issuer thereof in the name of the
Indenture Trustee, or by another Person (not a securities
intermediary) either becoming the registered owner of the
uncertificated security on behalf of the Indenture Trustee, or
having become the registered owner, acknowledging that it
holds for the Indenture Trustee, or the issuer thereof
agreeing that it will comply with instructions originated by
the Indenture Trustee without further consent of the
registered owner thereof;
(e) in each case of delivery contemplated herein, the
Indenture Trustee shall make appropriate notations on its
records, and shall cause same to be made on the records of its
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nominees, indicating that securities are held in trust
pursuant to and as provided in this Agreement;
(f) with respect to a "financial asset" (as defined in
Section 8-102(a)(9) of the UCC) to the extent not covered by
paragraphs (a) through (e) above, if a securities intermediary
(i) indicates by book entry that such financial asset has been
credited to the Indenture Trustee's "securities account" (as
defined in Section 8-501(a) of the UCC), (ii) receives a
financial asset from the Indenture Trustee or acquires a
financial asset for the Indenture Trustee, and in either case,
accepts it for credit to the Indenture Trustee's securities
account, (iii) becomes obligated under other law, regulation
or rule to credit a financial asset to the Indenture Trustee's
securities account, or (iv) has agreed that it will comply
with "entitlement orders" (as defined in Section 8-102(a)(8)
of the UCC) originated by the Indenture Trustee without
further consent by the "entitlement holder" (as defined in
Section 8-102(a)(7) of the UCC).
"Depositor" shall mean the Seller in its capacity as
Depositor under the Trust Agreement.
"Determination Date" means, with respect to any Payment
Date, the third Business Day prior to such Payment Date.
"Eligible Deposit Account" means either (a) a segregated
trust account with an Eligible Institution or (b) a segregated
trust account with the corporate trust department of a
depository institution organized under the laws of the United
States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for
funds deposited in such account, so long as any of the
unsecured debt obligations of such depository institution
shall have a credit rating from each of Moody's and Standard &
Poor's in one of its generic rating categories which signifies
investment grade and if rated by Fitch in one of its generic
rating categories which signifies investment grade.
"Eligible Institution" means (a) the corporate trust
department of the Indenture Trustee, the Owner Trustee or
Bankers Trust Company as long as it is paying agent under the
Trust Agreement, or (b) a depository institution organized
under the laws of the United States of America or any one of
the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), (1)(i) which has either
(A) a long-term unsecured debt rating of AAA or better by
Standard & Poor's, Aaa or better by Moody's and, if rated by
Fitch, AAA or (B) a short-term unsecured debt rating or a
certificate of deposit rating of A-1+ by Standard & Poor's, P-
1 or better by Moody's and, if rated by Fitch, F-1+, or any
other long-term, short-term or certificate of deposit rating
acceptable to the Rating Agencies and (ii) whose deposits are
insured by the FDIC or (2)(i) the parent of which has a long-
term or short-term unsecured debt rating acceptable to the
Rating Agencies and (ii) whose deposits are insured by the
FDIC. If so qualified, the Indenture Trustee, the Owner
Trustee, Bankers Trust Company or The Bank of New York may be
considered an Eligible Institution for the purposes of clause
(b) of this definition.
"Eligible Investments" mean book-entry securities,
negotiable instruments or securities represented by
instruments in bearer or registered form which evidence:
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(a) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company
incorporated under the laws of the United States of America or
any state thereof (or any domestic branch of a foreign bank)
and subject to supervision and examination by Federal or State
banking or depository institution authorities; provided,
however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a
Person other than such depository institution or trust
company) thereof shall have a credit rating from each of
Standard & Poor's, Moody's and, if rated by Fitch, Fitch, in
the highest investment category granted thereby;
(c) commercial paper having, at the time of the
investment or contractual commitment to invest therein, a
rating from each of Standard & Poor's, Moody's and, if rated
by Fitch, Fitch in the highest investment category granted
thereby;
(d) investments in money market funds having a rating
from each of Standard & Poor's and Moody's in the highest
investment category granted thereby (including funds for which
the Indenture Trustee or the Owner Trustee or any of their
respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security
that is a direct obligation of, or fully guaranteed by, the
United States of America or any agency or instrumentality
thereof the obligations of which are backed by the full faith
and credit of the United States of America, in either case
entered into with a depository institution or trust company
(acting as principal) described in clause (b); and
(g) any other investment permitted by each of the
Rating Agencies in writing; provided, however, that if an
investment would be an Eligible Investment solely by virtue of
clause (b), (c), (d), (e) or (f) and has a remaining maturity
of more than 30 days at the time of its acquisition by the
Indenture Trustee, then such investment shall be an Eligible
Investment only if the long-term unsecured debt rating of the
obligor on such investment is at least A1 from Moody's and at
least A+ by S&P.
"Financed Equipment" means an item of agricultural or
construction equipment, together with all accessions thereto,
securing an Obligor's indebtedness under the respective
Receivable.
"Fiscal Month" means a fiscal month specified in Schedule
C, as may be amended from time to time by the delivery by the
Servicer to the Seller, the Owner Trustee and the Indenture
Trustee of a new Schedule C hereto listing the fiscal months;
provided that the fiscal months on any such new Schedule C
shall have the ranges of number of days generally similar to
the ranges of the number of days in the fiscal months set
forth in the original Schedule C hereto and shall
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not result in a Collection Period that does not allow the
Servicer a sufficient amount of time to perform the
calculations required of it hereunder in respect of such
Collection Period prior to the related Determination Date.
"Fitch" means Fitch IBCA, Inc. or its successor.
"Indenture" means the Indenture dated as of May 15, 1999,
between the Issuer and the Indenture Trustee, as the same may
be amended and supplemented from time to time.
"Indenture Trustee" means The Bank of New York solely in
its capacity as indenture trustee under the Indenture and not
in its individual capacity, its successors in interest and any
successor indenture trustee under the Indenture.
"Initial Pool Balance" means the Pool Balance as of the
Cut-off Date, which is $800,100,048.
"Insolvency Event" means, with respect to a specified
Person, (a) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of such
Person or any substantial part of its property in an
involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such
Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or (b) the
commencement by such Person of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by such
Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
for such Person or for any substantial part of its property,
or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of
action by such Person in furtherance of any of the foregoing.
"Investment Earnings" means, with respect to any Payment
Date, the investment earnings (net of losses and investment
expenses) on amounts on deposit in the Trust Accounts to be
deposited into the Collection Account on such Payment Date
pursuant to Section 5.01(b).
"JDCC" means Xxxx Deere Capital Corporation, a Delaware
corporation, and its successors.
"Lien" means a security interest, lien, charge, pledge,
equity or encumbrance of any kind, other than tax liens,
mechanics' liens and any liens which attach to the respective
Receivable by operation of law as a result of any act or
omission by the related Obligor.
"Liquidated Receivable" means any Receivable liquidated by
the Servicer through the sale or other disposition of the
Financed Equipment or which the Servicer has determined to
charge-off without realizing upon the Financed Equipment.
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"Liquidation Proceeds" means, with respect to any
Liquidated Receivable, the moneys collected in respect
thereof, from whatever source (including the proceeds of
insurance policies with respect to the related Financed
Equipment or Obligor but excluding any amounts from Dealer
reserves) on a Liquidated Receivable during the Fiscal Month
in which such Receivable became a Liquidated Receivable, net
of the sum of any amounts expended by the Servicer in
connection with such liquidation and any amounts required by
law to be remitted to the Obligor on such Liquidated
Receivable.
"Moody's" means 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 Value" means, with respect to any day, the present
value of the unpaid Scheduled Payments on the Receivables,
discounted at an annual rate equal to 7.920%. For purposes of
calculating Note Value, in the case of a defaulted Receivable,
(a) prior to the time the related Financed Equipment becomes
repossessed, the Scheduled Payments on such Receivable will be
computed based on the amounts that would have been the
Scheduled Payments had such delinquency not occurred, (b)
after the time, if any, at which the Financed Equipment
securing such defaulted Receivable has been repossessed, but
prior to the time such defaulted Receivable becomes a
Liquidated Receivable, the Principal Balance of such defaulted
Receivable shall be added to such Note Value, but there shall
be deemed to be no Scheduled Payments due on such defaulted
Receivable and (c) after the time such defaulted Receivable
becomes a Liquidated Receivable, and after the payment of a
Purchase Amount in respect of a Purchased Receivable, there
shall be deemed to be no Scheduled Payments due on such
Receivable.
"Noteholders' Distributable Amount" means, with respect to
any Payment Date, the sum of (a) the accrued and unpaid
interest on the Notes for such Payment Date and (b) the Note
Principal Distributable Amount.
"Note Principal Distributable Amount" means, for any
Payment Date, the sum of (i) the Class A Monthly Principal
Distributable Amount and (ii) the Class B Monthly Principal
Distributable Amount.
"Obligor" on a Receivable means the purchaser or co-
purchasers of the Financed Equipment and any other Person who
owes payments under the Receivable.
"Officers' Certificate" means a certificate signed by (a)
the chairman of the board, the president, any vice president,
the treasurer or any assistant treasurer and (b) the secretary
or any assistant secretary of the Seller or the Servicer, as
appropriate.
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"Opinion of Counsel" means one or more written opinions of
counsel who may be an employee of or counsel to the Seller or
the Servicer, which counsel shall be acceptable to the
Indenture Trustee, the Owner Trustee or the Rating Agencies,
as applicable.
"Owner Trust Estate" has the meaning assigned to such term
in the Trust Agreement.
"Owner Trustee" means Bankers Trust (Delaware) in its
capacity as Owner Trustee under the Trust Agreement, its
successors in interest and any successor owner trustee under
the Trust Agreement.
"Payment Date" means the 15th day of each month or, if
such day is not a Business Day, the immediately following
Business Day, commencing on June 15, 1999.
"Pool Balance" as of the close of business on the last day
of a Collection Period, means the aggregate Principal Balance
of the Receivables (excluding Purchased Receivables and
Liquidated Receivables).
"Principal Balance" of a Receivable, as of the close of
business on the last day of a Collection Period, means the
Amount Financed minus the sum of (i) that portion of all
Scheduled Payments paid on or prior to such day allocable to
principal using the actuarial method, (ii) any payment of the
Purchase Amount with respect to the Receivable purchased by
the Servicer or repurchased by the Seller and allocable to
principal, and (iii) any prepayment in full or any partial
prepayments applied to reduce the Principal Balance of the
Receivable.
"Principal Carryover Shortfall" means, with respect to any
Payment Date, the excess of (i) the Principal Distributable
Amount for the immediately preceding Payment Date over (ii)
the amount that was actually deposited into the Note
Distribution Account and the Certificate Distribution Account
on account of principal on such immediately preceding Payment
Date.
"Principal Distributable Amount" means, with respect to
any Payment Date, will be the sum of (i) the Principal
Distribution Amount for such Payment Date and (ii) the
Principal Carryover Shortfall for such Payment Date.
"Principal Distribution Amount" means, with respect to any
Payment Date, an amount equal to the Note Value at the
beginning of the related Collection Period less the Note Value
at the end of that Collection Period.
"Purchase Agreement" means the Purchase Agreement dated as
of May 15, 1999, between the Seller and JDCC, as the same may
be amended and supplemented from time to time.
"Purchase Amount" means the amount, as of the close of
business on the last day of a Collection Period, required to
prepay in full the respective Receivable under the terms
thereof including interest to the last day of such Collection
Period.
Page 10
"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 Xxxxx'x, Standard & Poor's and
Fitch. If no such organization or successor is in existence,
"Rating Agency" shall be a nationally recognized statistical
rating organization or other comparable Person designated by
the Seller, notice of which designation shall be given to the
Indenture Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any
action, that each Rating Agency shall have been given 10 days
(or such shorter period that is acceptable to each Rating
Agency) prior notice thereof and that each of the Rating
Agencies shall have notified the Seller, the Servicer, the
Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the
then current rating of the Notes.
"Realized Losses" means the excess of the Principal
Balance of any Liquidated Receivable over Liquidation Proceeds
to the extent allocable to principal.
"Receivable" means any retail installment sale or loan
contract listed on Schedule A hereto.
"Receivable Files" means the documents specified in
Section 3.03.
"Recoveries" means, with respect to any Liquidated
Receivable, monies collected in respect thereof, from whatever
source (other than any amounts from Dealer reserves) after the
Fiscal Month in which such Receivable became a Liquidated
Receivable, net of the sum of any amounts expended by the
Servicer for the account of the Obligor and any amounts
required by law to be remitted to the Obligor.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.01.
"Reserve Account Initial Deposit" means, with respect to
the Closing Date, $16,114,837.
"Scheduled Payment" on a Receivable means the scheduled
periodic payment of principal and interest required to be made
by the Obligor.
"Seller" means Xxxx Deere Receivables, Inc., a Nevada
corporation, and its successors in interest to the extent
permitted hereunder.
"Servicer" means JDCC, as the servicer of the Receivables,
and each successor to JDCC (in the same capacity) pursuant to
Section 7.03 or 8.02.
"Servicer Default" means an event specified in Section
8.01.
Page 11
"Servicer's Certificate" means an Officers' Certificate of
the Servicer delivered pursuant to Section 4.09, substantially
in the form of Schedule D.
"Servicing Fee" means the fee payable to the Servicer for
services rendered during the respective Collection Period,
determined pursuant to Section 4.08.
"Servicing Fee Rate" means 1.00% per annum.
"Specified Reserve Account Balance" means, unless
otherwise consented to by the Rating Agencies as described
below, with respect to any Payment Date, the greater of (a)
2.00% of the Note Value as of the close of business on the
last day of the related Collection Period and (b) 1.75% of the
initial Note Value; provided, however, that the Specified
Reserve Account Balance shall not exceed the sum of the
outstanding principal amount of the Notes immediately
preceding such Payment Date less the Principal Distribution
Amount to be deposited in the Note Distribution Account on
such Payment Date and upon payment of all interest and
principal due on the Notes, the Specified Reserve Account
Balance shall be zero; provided further that the amount in
clause (a) with respect to a Payment Date (referred to herein
as the "current Payment Date") shall be equal to the amount
calculated for such clause (a) for the Payment Date
immediately preceding such current Payment Date if a Specified
Reserve Account Condition has occurred and is continuing. The
Specified Reserve Account Balance may be reduced or the
definition otherwise modified without the consent of the
Noteholders and the Certificateholder provided that the Rating
Agencies confirm in writing that such reduction or
modification will not result in the reduction or withdrawal of
the then current rating of any class of the Notes.
"Specified Reserve Account Condition" occurs in respect of
a Payment Date so long as:
(a) the aggregate of the Realized Losses realized from
the Cut-off-Date through the end of the Collection Period
preceding such current Payment Date exceeds the amount equal
to 2.25% of the Initial Pool Balance;
(b) other than in respect of the first two Payment
Dates, the sum of (i) four times the aggregate of the Realized
Losses realized during the three Collection Periods
immediately preceding such current Payment Date, plus (ii) the
aggregate principal amount of all Receivables as to which the
related Financed Equipment has been repossessed but which has
not become a Liquidated Receivable exceeds the amount equal to
1.65% of the Pool Balance at the beginning of such three
Collection Periods; or
(c) the Average Delinquency Ratio exceeds 2.25% through
and including the third consecutive Payment Date as of which
such ratio does not exceed and has not exceeded such
percentage. For the purposes of this clause, the "Average
Delinquency Ratio," means, as of any Payment Date (other than
in respect of the first two Payment Dates), the average of the
Delinquency Ratios for the three preceding Collection Periods;
and "Delinquency Ratio" means (i) the aggregate amount of
Scheduled Payments that are delinquent by more than 60 days as
of the end of the Collection Period immediately preceding such
current Payment Date (ii) divided by the Pool Balance as of
the end of such Collection Period.
Page 12
"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.
"Trust Agreement" means the Trust Agreement dated as of
May 15, 1999, between the Seller and the Owner Trustee, as the
same may be amended and supplemented from time to time.
"Trust Officer" means, in the case of the Indenture
Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee, including any Vice President, Assistant
Vice President, Secretary, Assistant Secretary or any other
officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with
the particular subject and, with respect to the Owner Trustee,
any officer in the Corporate Trustee Administration Department
of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement and the Basic Documents
on behalf of the Owner Trustee.
"Unscheduled Principal Payments" means, for any Payment
Date, the aggregate amount of unscheduled principal payments
on the Receivables received during the related Collection
Period.
SECTION 1.02 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined herein have the meanings assigned to them in the
Indenture.
Page 13
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement or in any such
certificate or other document, and accounting terms partly
defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the
definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words
of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision
of this Agreement; Section, Schedule and Exhibit references
contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean
"including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and
neuter genders of such terms.
SECTION 1.03 Calculations. For all purposes of this
Agreement, interest in respect of the Class A-1 Notes and the
Class A-2 Notes shall be computed on the basis of a 360-day
year and the actual number of days in the related period of
accrual. Interest in respect of the Class A-1 Notes and the
Class A-2 Notes shall accrue from and including the Closing
Date or from and including the most recent Payment Date to
which interest has been paid to but excluding the current
Payment Date. Interest in respect of the Class A-3 Notes, the
Class A-4 Notes and the Class B Note shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Interest on the Class A-3 Notes, the Class A-4 Notes and the
Class B Note in respect of a Payment Date will accrue from and
including the 15th day of the month preceding such Payment
Date (or the Closing Date in the case of the first Payment
Date) to and including the 14th day of the month of such
Payment Date.
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables. In consideration
of the Issuer's delivery to or upon the order of the Seller of
$760,071,023 plus the issuance to the Seller of the Class B
Note and the Certificate, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Issuer,
without recourse (subject to the obligations herein):
Page 14
(a) all right, title and interest of the Seller in and
to the Receivables, and all moneys due thereon, on or after
the Cut-off Date;
(b) the interest of the Seller in the security
interests in the Financed Equipment granted by Obligors
pursuant to the Receivables and any other interest of the
Seller in the Financed Equipment;
(c) the interest of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed
Equipment or Obligors;
(d) all right, title and interest of the Seller in and
to the Purchase Agreement, including the right of the Seller
to cause JDCC to repurchase Receivables from the Seller under
certain circumstances; and
(e) the proceeds of any and all of the foregoing.
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties of Seller.
The Seller makes the following representations and warranties
as to the Receivables on which the Issuer is deemed to have
relied in acquiring the Receivables. Such representations and
warranties speak as of the execution and delivery of this
agreement, but shall survive the sale, transfer and assignment
of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale
of the Receivables from the Seller to the Issuer and that the
beneficial interest in and title to such Receivables not be
part of the debtor's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the
Issuer. Immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title
to each Receivable, free and clear of all Liens and rights of
others and, immediately upon the transfer thereof, the Issuer
shall have good and marketable title to each such Receivable,
free and clear of all Liens and rights of others; and the
transfer has been perfected under the UCC.
(b) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Issuer a
first perfected ownership interest in the Receivables, and to
give the Indenture Trustee a first perfected security interest
therein, shall have been made.
SECTION 3.02 Repurchase by Seller upon Breach. The
Seller, the Servicer, the Sub-Servicer or the Owner Trustee,
as the case may be, shall inform the other parties to the
Agreement and the Indenture Trustee and JDCC promptly, in
writing, upon the discovery of any
Page 15
breach of the Seller's representations and warranties made
pursuant to Section 3.01 or JDCC's representations and
warranties made pursuant to Section 3.02(b) of the Purchase
Agreement. Unless any such breach shall have been cured by
the last day of the second month following the month of the
discovery thereof by the Owner Trustee or receipt by the Owner
Trustee of written notice from the Seller, the Servicer or the
Sub-Servicer of such breach, the Seller shall be obligated,
and, if necessary, the Seller or the Owner Trustee shall
enforce the obligation of JDCC under the Purchase Agreement,
to repurchase any Receivable materially and adversely affected
by any such breach as of such last day (or, at the Seller's
option, the last day of the first month following the month of
the discovery). In consideration of the repurchase of the
Receivable, the Seller shall remit the Purchase Amount, in the
manner specified in Section 5.03; provided, however, that the
obligation of the Seller to repurchase any Receivable arising
solely as a result of a breach of JDCC's representations and
warranties pursuant to Section 3.02(b) of the Purchase
Agreement is subject to the receipt by the Seller of the
Purchase Amount from JDCC. Subject to the provisions of
Section 6.03, the sole remedy of the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders or the
Certificateholder with respect to a breach of representations
and warranties pursuant to Section 3.01 and the agreement
contained in this Section shall be to require the Seller to
repurchase Receivables pursuant to this Section, subject to
the conditions contained herein, or to enforce JDCC's
obligation to the Seller to repurchase such Receivables
pursuant to the Purchase Agreement. The Owner Trustee shall
have no duty to conduct any affirmative investigation as to
the occurrence of any condition requiring the repurchase of
any Receivable pursuant to this Section.
SECTION 3.03 Custody of Receivable Files. To assure
uniform quality in servicing the Receivables and to reduce
administrative costs, the Issuer hereby appoints the Servicer,
and the Servicer hereby accepts such appointment, to act as
the agent of the Issuer and the Indenture Trustee as custodian
of the following documents or instruments which are hereby
constructively delivered to the Indenture Trustee, as pledgee
of the Issuer with respect to each Receivable:
(a) the original executed copy of the Receivable;
(b) the original or a copy of the credit application
fully executed by the Obligor;
(c) the original certificate of title (or a secured
party copy thereof), the file stamped copy of the UCC
financing statement or such other documents that the Seller or
JDCC shall keep on file, in accordance with its customary
procedures, evidencing the security interest of Deere &
Company or an affiliate of Deere & Company in the Financed
Equipment; and
(d) any and all other documents that JDCC or the Seller
shall keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor or Financed
Equipment.
SECTION 3.04 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the
Receivable Files on behalf of the Issuer and maintain such
accurate and complete accounts, records and computer systems
pertaining to each Receivable File as shall enable the Issuer
to comply with this Agreement. In performing its
Page 16
duties as custodian the Servicer shall act with reasonable
care, using that degree of skill and attention that the
Servicer exercises with respect to the receivable files
relating to all comparable receivables that the Servicer
services for itself or others. The Servicer shall conduct, or
cause to be conducted, periodic audits of the Receivable Files
held by it under this Agreement and of the related accounts,
records and computer systems, in such a manner as shall enable
the Issuer or the Indenture Trustee to verify the accuracy of
the Servicer's record keeping. The Servicer shall promptly
report to the Issuer and the Indenture Trustee any failure on
its part to hold the Receivable Files and maintain its
accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or
any periodic review by the Issuer, the Owner Trustee or the
Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer
shall maintain each Receivable File at its office specified in
Schedule B to this Agreement or at such other office as shall
be specified to the Issuer and the Indenture Trustee by
written notice not later than 90 days after any change in
location. The Servicer shall make available to the Issuer and
the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors a list of locations of
the Receivable Files and the related accounts, records and
computer systems maintained by the Servicer at such times as
the Issuer or the Indenture Trustee shall instruct.
(c) Release of Documents. Upon instruction from the
Indenture Trustee, the Servicer shall release any Receivable
File to the Indenture Trustee, the Indenture Trustee's agent,
or the Indenture Trustee's designee, as the case may be, at
such place or places as the Indenture Trustee may designate,
as soon as practicable.
SECTION 3.05 Instructions; Authority to Act. The
Servicer shall be deemed to have received proper instructions
with respect to the Receivable Files upon its receipt of
written instructions signed by a Trust Officer of the
Indenture Trustee.
SECTION 3.06 Custodian's Indemnification. The Servicer
as custodian shall indemnify the Trust, the Owner Trustee and
the Indenture Trustee and each of their officers, directors
and agents for any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses of any kind
whatsoever that may be imposed on, incurred by or asserted
against the Trust, the Owner Trustee or the Indenture Trustee
or any of their officers, directors and agents as the result
of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the
Receivable Files; provided, however, that the Servicer shall
not be liable to the Trust or the Owner Trustee for any
portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Owner Trustee and
the Servicer shall not be liable to the Trust or the Indenture
Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Indenture
Trustee.
SECTION 3.07 Effective Period and Termination. The
Servicer's appointment as custodian shall become effective as
of the Cut-off Date and shall continue in full force and
effect until terminated pursuant to this Section. If JDCC
shall resign as Servicer in accordance with the provisions of
the Agreement or if all of the rights and obligations of any
Servicer shall have been terminated under Section 8.01, the
appointment of such Servicer as custodian shall be terminated
Page 17
by the Indenture Trustee or by the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes or,
with the consent of Holders of the Notes evidencing not less
than 25% of the Outstanding Amount of the Notes, by the Owner
Trustee or by the Certificateholder, in the same manner as the
Indenture Trustee or such Holders may terminate the rights and
obligations of the Servicer under Section 8.01. The Indenture
Trustee or, with the consent of the Indenture Trustee, the
Owner Trustee may terminate the Servicer's appointment as
custodian, with cause, at any time upon written notification
to the Servicer, and without cause upon 30 days' prior written
notification to the Servicer. As soon as practicable after
any termination of such appointment, the Servicer shall
deliver the Receivable Files to the Indenture Trustee or the
Indenture Trustee's agent at such place or places as the
Indenture Trustee may reasonably designate. The Servicer
shall pay the fees of any other Person acting as custodian of
the Receivables Files.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer. The Servicer, as agent
for the Issuer (to the extent provided herein), shall manage,
service, administer and make collections on the Receivables
(other than Purchased Receivables) with reasonable care, using
that degree of skill and attention that the Servicer exercises
with respect to all comparable equipment receivables that it
services for itself or others. The Servicer's duties shall
include calculating, billing, collection and posting of all
payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, reporting tax
information to Obligors, accounting for collections, and
furnishing monthly and annual statements to the Owner Trustee
and the Indenture Trustee with respect to distributions.
Subject to the provisions of Section 4.02, the Servicer shall
follow its customary standards, policies and procedures in
performing its duties as Servicer. Without limiting the
generality of the foregoing, the Servicer is authorized and
empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the
Certificateholder and the Noteholders or any of them, any and
all instruments of satisfaction or cancellation, or partial or
full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the
Financed Equipment securing such Receivables. If the Servicer
shall commence a legal proceeding to enforce a Receivable, the
Issuer (in the case of a Receivable other than a Purchased
Receivable) shall thereupon be deemed to have automatically
assigned, solely for the purpose of collection, such
Receivable to the Servicer. If in any enforcement suit or
legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce such
Receivable, the Owner Trustee shall, at the Servicer's expense
and direction, take steps to enforce such Receivable,
including bringing suit in its name or the name of the Owner
Trustee, the Indenture Trustee, the Certificateholder or the
Noteholders. The Owner Trustee shall upon the written request
of the Servicer furnish the Servicer with any powers of
attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing
and administrative duties hereunder.
SECTION 4.02 Collection of Receivable Payments. The
Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Receivables
as and
Page 18
when the same shall become due and shall follow such
collection procedures as it follows with respect to all
comparable equipment receivables that it services for itself
or others. In connection therewith, the Servicer may grant
extensions, rebates or adjustments on a Receivable; provided,
however, that if the Servicer extends the date for final
payment by the Obligor of any Receivable beyond May 1, 2005,
it shall promptly purchase the Receivable from the Issuer in
accordance with the terms of Section 4.07. The Servicer may
in its discretion waive any additional interest above the
related APR due on late Scheduled Payments or any other fees
that may be collected in the ordinary course of servicing a
Receivable. The Servicer shall not agree to any alteration of
the interest rate on any Receivable or of the amount of any
Scheduled Payment on a Receivable. Notwithstanding anything
in this Agreement to the contrary, any Recoveries shall be
paid to the Seller and the related Liquidated Receivable shall
be assigned by the Trust to the Seller.
SECTION 4.03 Realization upon Receivables. On behalf of
the Issuer, the Servicer shall use its best efforts,
consistent with its customary servicing procedures, to
repossess or otherwise realize upon the Financed Equipment
securing any Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. The Servicer
shall follow such customary and usual practices and procedures
as it shall deem necessary or advisable in its servicing of
comparable equipment receivables, which may include selling
the Financed Equipment at public or private sale. The
foregoing shall be subject to the provision that, in any case
in which the Financed Equipment shall have suffered damage,
the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Equipment unless
it shall determine in its discretion that such repair and/or
repossession will increase the Liquidation Proceeds by an
amount greater than the amount of such expenses.
SECTION 4.04 Physical Damage Insurance. The Servicer
shall, in accordance with its customary servicing procedures,
require that each Obligor shall have obtained physical damage
insurance covering the Financed Equipment as of the execution
of the Receivable.
SECTION 4.05 Maintenance of Security Interests in
Financed Equipment. The Servicer shall, in accordance with
its customary servicing procedures, take such steps as are
necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Equipment.
The Servicer is hereby authorized to take such steps as are
necessary to re-perfect such security interest on behalf of
the Issuer and the Indenture Trustee in the event of the
relocation of a Financed Equipment or for any other reason.
SECTION 4.06 Covenants of Servicer. The Servicer shall
not release the Financed Equipment securing any Receivable
from the security interest granted by such Receivable in whole
or in part except in accordance with Section 4.03 above or in
the event of payment in full by the Obligor thereunder, nor
shall the Servicer impair the rights of the Issuer, the
Indenture Trustee, the Certificateholders or the Noteholders
in such Receivables, nor shall the Servicer increase the
number of scheduled payments due under a Receivable except in
accordance with the terms thereof or the terms of Section
4.02.
SECTION 4.07 Purchase by Servicer of Receivables upon
Breach. The Servicer (or the Sub-Servicer on behalf of the
Servicer) or the Owner Trustee shall inform the other party
and the Indenture Trustee, the Seller and JDCC promptly, in
writing, upon the discovery of any breach
Page 19
pursuant to Section 4.02, 4.05 or 4.06. Unless the breach
shall have been cured by the last day of the second month
following such discovery (or, at the Servicer's election, the
last day of the first following month), the Servicer shall
purchase any Receivable materially and adversely affected by
such breach. If the Servicer takes any action pursuant to
Section 4.02 that impairs the rights of the Issuer, the
Indenture Trustee, the Certificateholder or the Noteholders in
any Receivable or as otherwise provided in Section 4.02, the
Servicer shall purchase such Receivable. In consideration of
the purchase of any such Receivable pursuant to either of the
two preceding sentences, the Servicer shall remit the Purchase
Amount in the manner specified in Section 5.03. Subject to
Section 7.02, the sole remedy of the Issuer, the Owner
Trustee, the Indenture Trustee, the Certificateholders or the
Noteholders with respect to a breach pursuant to Section 4.02,
4.05 or 4.06 shall be to require the Servicer to purchase
Receivables pursuant to this Section. The Owner Trustee shall
have no duty to conduct any affirmative investigation as to
the occurrence of any condition requiring the purchase of any
Receivable pursuant to this Section.
SECTION 4.08 Servicing Fee. On each Determination Date,
the Servicer shall be entitled to receive the Servicing Fee in
respect of the immediately preceding Collection Period equal
to the product of (a) one-twelfth of the Servicing Fee Rate
and (b) the Pool Balance as of the first day of such preceding
Collection Period. The Servicer shall also be entitled to
that portion of interest due on a Receivable that is in excess
of interest at the related APR and that is due because of a
late Scheduled Payment, and other administrative fees or
similar charges allowed by applicable law or the Receivable
with respect to Receivables, collected (from whatever source)
on the Receivables.
SECTION 4.09 Servicer's Certificate. On each
Determination Date, the Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and the Seller, with a copy to
the Rating Agencies, a Servicer's Certificate containing all
information necessary to make the distributions pursuant to
Sections 5.04 and 5.06 for the Collection Period preceding the
date of such Servicer's Certificate. Neither the Owner
Trustee nor the Indenture Trustee shall be required to
determine, confirm or recalculate the information contained in
the Servicer's Certificate. Receivables to be purchased by
the Servicer or to be repurchased by the Seller shall be
identified by the Servicer by account number with respect to
such Receivable (as specified in Schedule A).
SECTION 4.10 Annual Statement as to Compliance; Notice of
Default.
(a) The Servicer shall deliver to the Owner Trustee and
the Indenture Trustee, on or before February 28 of each year
beginning February 28, 2000, an Officers' Certificate stating
that (i) a review of the activities of the Servicer during the
12-month period ending on October 31 of the preceding year
(or, in the case of October 31, 1999, the period from the
Closing Date to October 31, 1999) and of its performance under
this Agreement has been made under such officers' supervision
and (ii) to the best of such officers' knowledge, based on
such review, the Servicer has fulfilled in all material
respects all its obligations under this Agreement throughout
such period or, if there has been a default in the fulfillment
of any such obligation in any material respect, specifying
each such default known to such officers and the nature and
status thereof. The Indenture Trustee shall send a copy of
such certificate and the report referred to in Section 4.11 to
the Rating Agencies. A copy of such certificate and the
report referred to in Section 4.11
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may be obtained by the Certificateholder by a request in
writing to the Owner Trustee at its address in Section 10.03.
(b) The Servicer shall deliver to the Owner Trustee,
the Indenture Trustee and the Rating Agencies, promptly after
having obtained knowledge thereof, but in no event later than
five (5) Business Days thereafter, written notice in an
Officers' Certificate of any event which with the giving of
notice or lapse of time, or both, would become a Servicer
Default under Section 8.01(a) or (b).
SECTION 4.11 Annual Independent Certified Public
Accountants' Report. The Servicer shall cause a firm of
independent certified public accountants, which may also
render other services to the Servicer, the Seller or JDCC, to
deliver to the Owner Trustee and the Indenture Trustee on or
before February 28 of each year beginning February 28, 2000, a
report addressed to the Board of Directors of the Servicer,
the Owner Trustee and the Indenture Trustee, to the effect
that such firm has examined the financial statements of JDCC
and issued its report thereon and that such examination (a)
was made in accordance with generally accepted auditing
standards and accordingly included such tests of the
accounting records and such other auditing procedures as such
firm considered necessary in the circumstances; (b) included
tests relating to equipment loans serviced for others in
accordance with the requirements of the Uniform Single
Attestation Program for Mortgage Bankers (the "Program"), to
the extent the procedures in such program are applicable to
the servicing obligations set forth in this Agreement; and (c)
except as described in the report, disclosed no exceptions or
errors in the records relating to equipment loans (including
the Receivables) serviced for others during the 12-month
period (or, in the case of the report due on or before
February 28, 2000, the period from the Closing Date to October
31, 1999) that, in the firm's opinion, such Program requires
such firm to report.
Such report will also indicate that the firm is
independent of the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified
Public Accountants.
SECTION 4.12 Access to Certain Documentation and
Information Regarding Receivables. The Servicer shall provide
to the Certificateholder and Noteholders access to the
Receivable Files in such cases where the Certificateholder or
Noteholders shall be required by applicable statutes or
regulations to review such documentation. Access shall be
afforded without charge, but only upon reasonable request and
during the normal business hours at the respective offices of
the Servicer. Nothing in this Section shall affect the
obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors
and the failure of the Servicer to provide access to
information as a result of such obligation shall not
constitute a breach of this Section.
SECTION 4.13 Servicer Expenses. The Servicer shall be
required to pay all expenses incurred by it in connection with
its activities hereunder, including fees and disbursements of
independent accountants, fees and disbursements incurred in
connection with collection and enforcement of Receivables
(other than amounts incurred in connection with the
liquidation of a Receivable which amounts shall be netted
against the Liquidation Proceeds, if any), taxes
Page 21
imposed on the Servicer and expenses incurred in connection
with distributions and reports to Certificateholder and
Noteholders.
SECTION 4.14 Appointment of Sub-Servicer. The Servicer
hereby appoints Deere Credit Services, Inc. as Sub-Servicer
and may at any time appoint a successor Sub-Servicer to
perform all or any portion of its obligations as Servicer
hereunder; provided, however, that the Rating Agency Condition
shall have been satisfied in connection with the appointment
of a successor Sub-Servicer; provided further that the
Servicer shall remain obligated and be liable to the Issuer,
the Owner Trustee, the Indenture Trustee, the
Certificateholder and the Noteholders for the servicing and
administering of the Receivables in accordance with the
provisions hereof without diminution of such obligation and
liability by virtue of the appointment of such Sub-Servicer
and to the same extent and under the same terms and conditions
as if the Servicer alone were servicing and administering the
Receivables. The fees and expenses of the Sub-Servicer shall
be as agreed between the Servicer and its Sub-Servicer from
time to time and none of the Issuer, the Owner Trustee, the
Indenture Trustee, the Certificateholder or the Noteholders
shall have any responsibility therefor.
ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.01 Establishment of Trust Accounts.
(a) (i) The Servicer, for the benefit of the
Noteholders and the Certificateholder, shall establish and
maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Collection Account"), bearing a
designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders and the
Certificateholder.
(ii) The Servicer, for the benefit of the
Noteholders, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Note
Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the
benefit of the Noteholders.
(iii) The Servicer, for the benefit of the
Noteholders and the Certificateholder, shall establish and
maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Reserve Account"), bearing a designation
clearly indicating that the funds deposited therein are held
for the benefit of the Noteholders and the Certificateholder.
(b) Funds on deposit in the Collection Account, the
Note Distribution Account and the Reserve Account
(collectively the "Trust Accounts") shall be invested by the
Indenture Trustee pursuant to the Servicer's written
instruction in Eligible Investments selected by the Servicer;
provided, however, it is understood and agreed that the
Indenture Trustee shall not be liable for any loss arising
from such investment in Eligible Investments; provided further
none of the funds deposited in the Trust Accounts shall be
invested in an Eligible Investment or Eligible Investments
issued by the Servicer or the Seller for a period of 30 days
following the Closing Date. All such Eligible Investments
shall be held by the Indenture Trustee for the benefit of the
Page 22
Noteholders and the Certificateholder or the Noteholders, as
applicable; provided, however, that on each Payment Date all
interest and other investment income (net of losses and
investment expenses) on funds on deposit in the Trust Accounts
shall be deposited into the Collection Account and shall be
deemed to constitute a portion of the Total Distribution
Amount. Other than as permitted by the Rating Agencies, funds
on deposit in the Trust Accounts shall be invested in Eligible
Investments that will mature so that such funds will be
available at the close of business on the Transfer Date
preceding the following Payment Date or, in the case of the
Note Distribution Account and the Reserve Account, the
following Payment Date. Funds deposited in a Trust Account on
a Transfer Date which immediately precedes a Payment Date are
not required to be invested overnight.
If the unenhanced commercial paper of JDCC is not an
Eligible Investment for one or more Rating Agencies (each a
"Nonapproving Rating Agency") but the commercial paper of JDCC
enhanced by a put agreement is an Eligible Investment pursuant
to clause (g) of the term "Eligible Investment" for each
Nonapproving Rating Agency and the Servicer instructs the
Indenture Trustee to purchase such commercial paper and put
agreement in accordance with the preceding paragraph, then the
Indenture Trustee will purchase such commercial paper (which
shall have a maturity of 30 days or such longer period that is
acceptable to each Nonapproving Rating Agency) so that such
commercial paper will mature on or prior to the Business Day
immediately preceding the next succeeding Payment Date and
such put agreement shall come into effect no later than the
time of purchase of such commercial paper and shall expire no
earlier than the close of business on the second Business Day
next succeeding such Payment Date. Such put agreement shall
be in a form acceptable to each Nonapproving Rating Agency.
The Indenture Trustee shall exercise its right to put the JDCC
commercial paper to the obligee under the put agreement upon
the maturity date of such commercial paper if payment in full
for such commercial paper is not made on such maturity date.
Notwithstanding anything in this paragraph to the contrary,
the Indenture Trustee shall not purchase the commercial paper
of JDCC unless the Servicer, in directing the Indenture
Trustee to purchase such commercial paper, delivers to it an
Officers' Certificate of the Servicer to the effect that the
yield on such commercial paper (after giving effect to the
cost of the put agreement) is at least equal to the yield on
U.S. Treasury securities of comparable maturity.
(c) (i) The Indenture Trustee shall possess all
right, title and interest in all funds on deposit from time to
time in the Trust Accounts and in all proceeds thereof
(including all income thereon) and all such funds,
investments, proceeds and income shall be part of the Trust
Estate. The Trust Accounts shall be under the sole dominion
and control of the Indenture Trustee for the benefit of the
Noteholders and the Certificateholder or the Noteholders, as
the case may be. If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, the Indenture
Trustee (or the Servicer on its behalf) shall within 10
Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent)
establish a new Trust Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new
Trust Account. So long as The Bank of New York is an Eligible
Institution, any Trust Account shall be maintained with it in
an Eligible Deposit Account.
Page 23
(ii) With respect to the Trust Account Property,
the Indenture Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in the Eligible Deposit
Accounts; and each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the Indenture
Trustee, and the Indenture Trustee shall have sole signature
authority with respect thereto;
(B) any Trust Account Property that is of the
type described in paragraph (a) or (b) of the definition of
"Delivery" shall be delivered to the Indenture Trustee in
accordance with paragraph (a) or (b), as applicable, of the
definition of "Delivery, and shall be held as described in
such paragraph;
(C) any Trust Account Property that is a book-
entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations shall be delivered
in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition, through continued book-entry
registration of such Trust Account Property as described in
such paragraph; and
(D) any Trust Account Property that is an
"uncertificated security" under Article VIII of the UCC and
that is not governed by clause (C) above shall be delivered to
the Indenture Trustee in accordance with paragraph (d) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition, through
continued registration of the Indenture Trustee's (or its
nominee's) ownership of such security.
(iii) The Servicer shall have the power, revocable
by the Indenture Trustee or by the Owner Trustee with the
consent of the Indenture Trustee, to instruct the Indenture
Trustee to make withdrawals and payments from the Trust
Accounts for the purpose of permitting the Servicer or the
Owner Trustee to carry out its respective duties hereunder or
permitting the Indenture Trustee to carry out its duties under
the Indenture.
SECTION 5.02 Collections. The Servicer shall remit to
the Collection Account all payments by or on behalf of the
Obligors with respect to the Receivables (other than Purchased
Receivables) and all Liquidation Proceeds (exclusive of
Recoveries, which shall be applied in accordance with Section
4.02), within two Business Days of receipt thereof.
Notwithstanding the foregoing, if (i) JDCC is the Servicer,
(ii) a Servicer Default shall not have occurred and be
continuing and (iii) JDCC's unsecured, non-guaranteed short-
term debt is assigned a rating of at least A-1 by Standard &
Poor's, P-1 by Moody's and F-1 by Fitch, the Servicer shall
remit such collections (as collected during each Fiscal Month)
to the Collection Account not less than two Business Days
prior to the 15th day of the calendar month following such
Fiscal Month (or, if such Fiscal Month ends in the early part
of a calendar month, then the 15th day of such calendar month
in which such Fiscal Month ends). For purposes of this
Article V the phrase "payments by or on behalf of Obligors"
shall mean payments made with respect to the Receivables by
persons other than the Servicer or JDCC.
Page 24
SECTION 5.03 Additional Deposits. The Servicer and the
Seller shall deposit or cause to be deposited in the
Collection Account the aggregate Purchase Amount with respect
to Purchased Receivables and the Servicer shall deposit
therein all amounts to be paid under Section 9.01(a). The
Servicer will deposit the aggregate Purchase Amount with
respect to Purchased Receivables when such obligations are
due, unless the Servicer shall not be required to make
deposits within two Business Days of the receipt of
collections from Obligors pursuant to Section 5.02, in which
case deposits of Purchased Amounts shall be made on the
Transfer Date.
SECTION 5.04 Distributions.
(a) On each Determination Date, the Servicer shall
calculate the amounts to be deposited in the Note Distribution
Account and the Certificate Distribution Account.
(b) On the second Business Day prior to each Payment
Date, the Servicer shall instruct the Indenture Trustee in
writing in substantially the form of Schedule G hereto (based
on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to
Section 4.09) to make deposits and distributions to the
Servicer or the Administrator or distribute to the applicable
Trust Account or Certificate Distribution Account by 12:00
noon (New York time) in the case of the Trust Accounts and
11:00 A.M. (New York time) in the case of the Certificate
Distribution Account, in each case on such Payment Date.
Distributions of the Total Distribution Amount shall be made
by the Indenture Trustee in the following order of priority:
(i) to the Servicer, from the Total Distribution
Amount, the Servicing Fee and all unpaid Servicing Fees from
prior Collection Periods;
(ii) to the Administrator under the Administration
Agreement, from the Total Distribution Amount remaining after
the application of clause (i), the Administration Fee and all
unpaid Administration Fees from prior Collection Periods;
(iii) to the Note Distribution Account, from the
Total Distribution Amount remaining after the application of
clauses (i) and (ii), the accrued and unpaid interest on the
Notes for such Payment Date;
(iv) to the Note Distribution Account, from the
Total Distribution Amount remaining after the application of
clauses (i), (ii) and (iii), the Note Principal Distributable
Amount;
(v) to the Reserve Account, from the Total
Distribution Amount remaining after the application of clauses
(i), (ii), (iii) and (iv), the amount, if any, necessary to
increase the amounts on deposit in the Reserve Account to the
Specified Reserve Account Balance;
(vi) to the Certificate Distribution Account, from
the Total Distribution Amount remaining after the application
of clauses (i), (ii), (iii), (iv) and (v), the Certificate
Monthly Principal Distributable Amount; and
Page 25
(vii) to the Reserve Account, the Total
Distribution Amount remaining after the application of clauses
(i), (ii), (iii), (iv), (v) and (vi).
SECTION 5.05 Reserve Account.
(a) On the Closing Date, the Seller shall deposit the
Reserve Account Initial Deposit into the Reserve Account. The
Servicer shall determine the Specified Reserve Account Balance
for each Payment Date.
(b) (i) If the amount on deposit in the Reserve
Account on each Payment Date (after giving effect to all
deposits or withdrawals therefrom on such Payment Date
pursuant to Section 5.04 and Section 5.05(c)) is greater than
the Specified Reserve Account Balance for such Payment Date,
the Servicer shall instruct the Indenture Trustee to
distribute such excess in the Reserve Account to the Seller.
(ii) On the date on which all interest on and
principal of the Notes have been paid in full, the Servicer
shall instruct the Indenture Trustee to distribute the Reserve
Account balance to the Seller.
(iii) Amounts properly distributed to the Seller
pursuant to this Section 5.05(b) shall be deemed released from
the Trust and the security interest therein granted to the
Indenture Trustee, and the Seller shall in no event thereafter
be required to refund any such distributed amounts.
(c) In the event that the Noteholders' Distributable
Amount for a Payment Date exceeds the amount deposited into
the Note Distribution Account pursuant to Section 5.04(b)(iii)
and (iv) on such Payment Date, the Servicer shall instruct the
Indenture Trustee to withdraw from the Reserve Account on such
Payment Date, to the extent of funds available therein, an
amount equal to such excess and deposit such amount into the
Note Distribution Account.
SECTION 5.06 Statements to the Certificateholder and
Noteholders.
(a) On the second Business Day preceding each Payment
Date, the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies) and to the Owner Trustee
for the Owner Trustee to forward to the Certificateholder of
record a statement substantially in the form of Schedule E
setting forth at least the following information as to the
Notes and the Certificate to the extent applicable:
(i) the amount of such distribution allocable to
principal;
(ii) the amount of such distribution allocable to
interest;
(iii) the Pool Balance and the Note Value as of the
close of business on the last day of the preceding Collection
Period;
Page 26
(iv) (A) the outstanding principal balance of (1)
the Class A-1 Notes, (2) the Class A-2 Notes, (3) the Class A-
3 Notes, (4) the Class A-4 Notes and (5) the Class B Note and
(B) the Certificate Balance, in each case after giving effect
to payments allocated to principal reported under (i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period;
(vi) the amount of the Administration Fee paid to
the Administrator with respect to such Collection Period;
(vii) the aggregate amount of the Purchase Amounts
for Purchased Receivables with respect to the related
Collection Period;
(viii) the balance of the Reserve Account on such
Payment Date, after giving effect to distributions made on
such Payment Date, and the Specified Reserve Account Balance
for such Payment Date; and
(ix) the amount of any payments in respect of the
Receivables that are more than 60 days past due.
Each amount set forth pursuant to paragraph (i), (ii)
or (iv) above shall be expressed as a dollar amount per $1,000
of original principal balance of a Certificate or Note, as
applicable.
(b) On the second Business Day preceding each Payment
Date, the Servicer shall provide to the Indenture Trustee
(with a copy to the Rating Agencies) for the Indenture Trustee
to forward to each Noteholder of record, a statement
substantially in the form of Schedule F setting forth at least
the following information as to the Notes to the extent
applicable with respect to such Payment Date or the related
Collection Period:
(i) the amount of such distribution allocable to
principal;
(ii) the amount of such distribution allocable to
interest;
(iii) the Pool Balance and the Note Value as of the
close of business on the last day of the preceding Collection
Period;
(iv) (A) the outstanding principal balance of (1)
the Class A-1 Notes, (2) the Class A-2 Notes, (3) the Class A-
3 Notes, (4) the Class A-4 Notes and (5) the Class B Note and
(B) the Certificate Balance, in each case after giving effect
to payments allocated to principal reported under (i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to such Collection Period;
Page 27
(vi) the amount of the Administration Fee paid to
the Administrator with respect to such Collection Period;
(vii) the aggregate amount of Purchase Amounts for
Purchased Receivables with respect to such Collection Period;
(viii) the balance of the Reserve Account on such
Payment Date, after giving effect to the distributions made on
such Payment Date, and the Specified Reserve Account Balance
for such Payment Date; and
(ix) the amount of any payments in respect of the
Receivables that are more than 60 days past due.
Each amount set forth pursuant to subclause (i), (ii)
or (iv) above shall be expressed as a dollar amount per $1,000
of original principal balance of a Note.
Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term
of the Indenture, the Indenture Trustee shall mail to each
Person who at any time during such calendar year shall have
been a Noteholder and received any payment thereon, a
statement containing the amounts described in (i) and (ii)
(other than information relating to the Note Interest Rates)
above and any other information required by applicable tax
laws, for the purposes of such Noteholder's preparation of
Federal income tax returns.
The Indenture Trustee shall only be required to provide to
the Noteholders the information furnished to it by the
Servicer.
SECTION 5.07 Net Deposits. As an administrative
convenience, unless the Servicer is required to remit
collections within two Business Days of their receipt, the
Servicer will be permitted to make the deposit of collections
on the Receivables and Purchase Amounts for or with respect to
the Collection Period net of distributions to be made to the
Servicer with respect to the Collection Period. The Servicer,
however, will account to the Owner Trustee, the Indenture
Trustee, the Noteholders and the Certificateholder as if all
deposits, distributions and transfers were made individually.
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller. The Seller makes
the following representations on which the Issuer is deemed to
have relied in acquiring the Receivables. The representations
speak as of the execution and delivery of this Agreement and
shall survive the sale of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
Page 28
(a) Organization and Good Standing. The Seller is duly
organized and validly existing as a corporation in good
standing under the laws of the State of Nevada, with the power
and authority to own its properties and to conduct its
business as such properties are currently owned and such
business is presently conducted, and had at all relevant
times, and has, the power, authority and legal right to
acquire and own the Receivables.
(b) Due Qualification. The Seller is duly qualified to
do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals in all
jurisdictions in which the failure to so qualify or to obtain
such license or approval would render any Receivable
unenforceable that would otherwise be enforceable by the
Seller, the Sub-Servicer or the Owner Trustee.
(c) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and to carry
out its terms; the Seller has full power and authority to sell
and assign the property to be sold and assigned to and
deposited with the Issuer and the Seller and shall have duly
authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Seller by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Seller enforceable
in accordance with its terms except that such enforcement may
be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and the remedy of
specific performance and injunctive relief may be subject to
certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the articles
of incorporation or by-laws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party
or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Seller's knowledge, any order, rule
or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Seller or its properties.
(f) No Proceedings. To the Seller's best knowledge,
there are no proceedings or investigations pending, or
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Seller or its properties: (i) asserting
the invalidity of this Agreement, the Indenture or any of the
other Basic Documents, the Notes or the Certificate, (ii)
seeking to prevent the issuance of the Notes or the
Certificate or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking any determination or
ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture,
any of the other Basic Documents, the Notes or
Page 29
the Certificate or (iv) which involve the Seller and which
might adversely affect the Federal or state income tax
attributes of the Notes or the Certificate.
SECTION 6.02 Corporate Existence.
(a) During the term of this Agreement, the Seller will
keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction
of its incorporation and will obtain and preserve its
qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Basic
Documents and each other instrument or agreement necessary or
appropriate to the proper administration of this Agreement and
the transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall
observe the applicable legal requirements for the recognition
of the Seller as a legal entity separate and apart from its
Affiliates, including as follows:
(i) the Seller shall maintain corporate records and
books of account separate from those of its Affiliates;
(ii) except as otherwise provided in this
Agreement, the Seller shall not commingle its assets and funds
with those of its Affiliates;
(iii) the Seller shall hold such appropriate
meetings of its Board of Directors as are necessary to
authorize all the Seller's corporate actions required by law
to be authorized by the Board of Directors, shall keep minutes
of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities (and any
successor Seller not a corporation shall observe similar
procedures in accordance with its governing documents and
applicable law);
(iv) the Seller shall at all times hold itself out
to the public under the Seller's own name as a legal entity
separate and distinct from its Affiliates; and
(v) all transactions and dealings between the
Seller and its Affiliates will be conducted on an arm's-length
basis.
SECTION 6.03 Liability of Seller; Indemnities. The
Seller shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the
Seller under the Agreement.
(a) The Seller shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee and the Indenture
Trustee and their officers, directors and agents from and
against any taxes that may at any time be asserted against the
Issuer, the Owner Trustee or the Indenture Trustee or their
officers, directors, and agents with respect to the sale of
the Receivables to the Issuer or the issuance and original
sale of the Certificate and the Notes, including any sales,
gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the
Page 30
case of the Issuer, not including any taxes asserted with
respect to ownership of the Receivables or Federal or other
income taxes arising out of the transactions contemplated by
this Agreement) and costs and expenses in defending against
the same.
(b) The Seller shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee and the Indenture
Trustee and their officers, directors, and agents from and
against any loss, liability or expense incurred by reason of
(i) the Seller's willful misfeasance, bad faith or negligence
in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties
under this Agreement and (ii) the Seller's or the Issuer's
violation of Federal or state securities laws in connection
with the offering and sale of the Notes and the Certificate.
(c) The Seller shall pay any and all property taxes
(including taxes on intangibles), excise taxes, sales taxes
and similar taxes levied or assessed upon all or any part of
the Trust Estate including, without limitation, the
Receivables.
Indemnification under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture
Trustee and the termination of this Agreement and shall
include reasonable fees and expenses of counsel and expenses
of litigation. If the Seller shall have made any indemnity
payments pursuant to this Section and the Person to or on
behalf of whom such payments are made thereafter shall collect
any of such amounts from others, such Person shall promptly
repay such amounts to the Seller, without interest.
SECTION 6.04 Merger or Consolidation of, or Assumption of
the Obligations of, Seller. Any Person (a) into which the
Seller may be merged or consolidated, (b) which may result
from any merger or consolidation to which the Seller shall be
a party or (c) which may succeed to the properties and assets
of the Seller substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to
perform every obligation of the Seller under this Agreement,
shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any
of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.01 shall
have been breached and no Servicer Default, and no event that,
after notice or lapse of time, or both, would become a
Servicer Default shall have occurred and be continuing, (ii)
the Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this
Section and that all conditions precedent, if any, provided
for in this Agreement relating to such transaction have been
complied with, (iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction and (iv) the
Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating
that, in the opinion of such counsel, all financing statements
and continuation statements and amendments thereto have been
executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and Indenture
Trustee, respectively, in the Receivables and reciting the
details of such filings, or (B) stating that, in the opinion
of such counsel, no such action shall be necessary to preserve
and protect such interests. Notwithstanding anything herein
to the contrary, the execution of the foregoing
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agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) above shall be conditions to the consummation
of the transactions referred to in clause (a), (b) or (c)
above.
SECTION 6.05 Limitation on Liability of Seller and
Others. The Seller and any director or officer or employee or
agent of the Seller may rely in good faith on the advice of
counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters
arising hereunder. The Seller shall not be under any
obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 6.06 Seller May Own the Certificate or Notes.
The Seller and any Affiliate thereof may in its individual or
any other capacity become the owner or pledgee of the
Certificate or Notes with the same rights as it would have if
it were not the Seller or an Affiliate thereof, except as
expressly provided herein or in any Basic Document; provided,
however, that the Seller shall retain and not transfer the
Certificate and the Class B Note.
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer. The Servicer
makes the following representations on which the Issuer is
deemed to have relied in acquiring the Receivables. The
representations speak as of the execution and delivery of the
Agreement (or as of the date a Person (other than the
Indenture Trustee) becomes Servicer pursuant to Sections 7.03
and 8.02, in the case of a successor to the Servicer) and
shall survive the sale of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Servicer is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to
own its properties and to conduct the business in which it is
currently engaged, and had at all relevant times, and has, the
power, authority and legal right to acquire, own, sell and
service the Receivables and to hold the Receivable Files as
custodian.
(b) Power and Authority. The Servicer has the power
and authority to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Servicer by all necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms except that such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and the remedy of specific performance and injunctive relief
may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor
may be brought.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof shall not conflict with, result in any breach of
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any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the articles
of incorporation or by-laws of the Servicer, or any indenture,
agreement or other instrument to which the Servicer is a party
or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument
(other than this Agreement); nor violate any law or, to the
best of the Servicer's knowledge, any order, rule or
regulation applicable to the Servicer of any court or of any
Federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Servicer or its properties.
(e) No Proceedings. To the Servicer's best knowledge,
there are no proceedings or investigations pending, or
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties: (i)
asserting the invalidity of this Agreement, the Indenture, any
of the other Basic Documents, the Notes or the Certificate,
(ii) seeking to prevent the issuance of the Notes or the
Certificate or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking any determination or
ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement, the Indenture,
any of the other Basic Documents, the Notes or the Certificate
or (iv) relating to the Servicer and which might adversely
affect the Federal or state income tax attributes of the Notes
or the Certificate.
(f) No Insolvent Obligors. As of the Cut-off Date, no
Obligor on a Receivable is shown on the Receivable Files as
the subject of a bankruptcy proceeding.
SECTION 7.02 Indemnities of Servicer. The Servicer shall
be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer under this
Agreement.
(a) The Servicer shall defend, indemnify and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee,
the Noteholders, the Certificateholder and the Seller and any
of the officers, directors and agents of the Issuer, the Owner
Trustee, the Indenture Trustee and the Seller from and against
any and all costs, expenses, losses, damages, claims and
liabilities, arising out of or resulting from the use,
ownership or operation by the Servicer or any Affiliate
thereof of any Financed Equipment.
(b) The Servicer shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee,
and the Seller and their respective officers, directors and
agents from and against any taxes that may at any time be
asserted against any such Person with respect to the
transactions contemplated herein, including any sales, gross
receipts, general corporation, tangible personal property,
privilege or license taxes (but, in the case of the Issuer,
not including any taxes asserted with respect to, and as of
the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Certificate and the Notes,
or asserted with respect to ownership of the Receivables, or
Federal or other income taxes arising out of distributions on
the Certificate or the Notes) and costs and expenses in
defending against the same.
Page 33
(c) The Servicer shall indemnify, defend and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee,
the Seller, the Certificateholder and the Noteholders and any
of the officers, directors and agents of the Issuer, the Owner
Trustee, the Indenture Trustee and the Seller from and against
any and all costs, expenses, losses, claims, damages and
liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon
any such Person through, the negligence, willful misfeasance
or bad faith of the Servicer in the performance of its duties
under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement or on account of
the failure of the Servicer to be qualified to do business as
a foreign corporation or to have obtained a license or
approval in any jurisdiction.
(d) The Servicer shall indemnify, defend and hold
harmless the Owner Trustee and the Indenture Trustee and their
respective officers, directors and agents from and against all
costs, expenses, losses, claims, damages and liabilities
arising out of or incurred in connection with the acceptance
or performance of the trusts and duties herein and in the
Trust Agreement contained, in the case of the Owner Trustee,
and in the Indenture contained, in the case of the Indenture
Trustee, except to the extent that such cost, expense, loss,
claim, damage or liability: (i) shall be due to the willful
misfeasance, bad faith or negligence (except for errors in
judgment) of the Owner Trustee or the Indenture Trustee as
applicable; or (ii) shall arise from the breach by the Owner
Trustee of any of its representations or warranties set forth
in Section 7.03 of the Trust Agreement.
(e) To the extent not indemnified by the Seller under
Section 6.03, the Servicer shall pay any and all taxes levied
or assessed upon all or any part of the Owner Trust Estate,
other than any taxes asserted with respect to, and as of the
date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Certificate and the Notes,
or Federal or other income taxes imposed on the Issuer because
of its classification or reclassification for tax purposes, or
Federal or other income taxes arising out of distributions on
the Certificate or the Notes.
(f) The Servicer shall pay the Indenture Trustee from
time to time reasonable compensation for all services rendered
by the Indenture Trustee under the Indenture (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust).
(g) The Servicer shall, except as otherwise expressly
provided in the Indenture, reimburse the Indenture Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including,
but not limited to, the reasonable compensation, expenses and
disbursements of its agents and either in-house counsel or
outside counsel, but not both) except any such expense,
disbursement or advance as may be attributable to its
negligence or bad faith.
For purposes of this Section 7.02, in the event of the
termination of the rights and obligations of JDCC (or any
successor thereto pursuant to Section 7.03) as Servicer
pursuant to Section 8.01, or a resignation by such Servicer
pursuant to this Agreement, such Servicer shall be deemed to
be the Servicer pending appointment of a successor Servicer
(other than the Indenture Trustee) pursuant to Section 8.02.
Page 34
Indemnification under this Section shall survive the
resignation or removal of the Owner Trustee or the Indenture
Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity
payments pursuant to this Section and the Person to or on
behalf of whom such payments are made thereafter collects any
of such amounts from others, such Person shall promptly repay
such amounts to the Servicer, without interest.
SECTION 7.03 Merger or Consolidation of, or Assumption of
the Obligations of, Servicer. Any Person (a) into which the
Servicer may be merged or consolidated, (b) which may result
from any merger or consolidation to which the Servicer shall
be a party, (c) which may succeed to the properties and assets
of the Servicer substantially as a whole, or (d) with respect
to the Servicer's obligations hereunder, which is a
corporation 50% or more of the voting stock of which is owned,
directly or indirectly, by Deere, which Person executed an
agreement of assumption to perform every obligation of the
Servicer hereunder, shall be the successor to the Servicer
under this Agreement without further act on the part of any of
the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no
Servicer Default, and no event which, after notice or lapse of
time, or both, would become a Servicer Default shall have
occurred and be continuing, (ii) the Servicer shall have
delivered to the Owner Trustee and the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all
conditions precedent provided for in this Agreement relating
to such transaction have been complied with, (iii) the Rating
Agency Condition shall have been satisfied with respect to
such transaction and (iv) the Servicer shall have delivered to
the Owner Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements
and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the
Owner Trustee and the Indenture Trustee, respectively, in the
Receivables and reciting the details of such filings or (B)
stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests.
Notwithstanding anything herein to the contrary, the execution
of the foregoing agreement of assumption and compliance with
clauses (i), (ii), (iii) and (iv) above shall be conditions to
the consummation of the transactions referred to in clause
(a), (b), (c) or (d) above.
SECTION 7.04 Limitation on Liability of Servicer and
Others. Neither the Servicer nor the Sub-Servicer nor any of
the directors or officers or employees or agents of the
Servicer or the Sub-Servicer, as the case may be, shall be
under any liability to the Issuer, the Noteholders or the
Certificateholder, except as provided under this Agreement,
for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the
Servicer, the Sub-Servicer or any such person against any
liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and
duties under this Agreement. The Servicer, the Sub-Servicer
and any director or officer or employee or agent of the
Servicer or the Sub-Servicer, as the case may be, may rely in
good faith on any document of any kind prima facie properly
executed and submitted by any person respecting any matters
arising under this Agreement.
Page 35
Except as provided in this Agreement, neither the Servicer
nor the Sub-Servicer shall be under any obligation to appear
in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may
involve it in any expense or liability; provided, however,
that the Servicer or the Sub-Servicer may undertake any
reasonable action that it may deem necessary or desirable in
respect of this Agreement and the Basic Documents and the
rights and duties of the parties to this Agreement and the
Basic Documents and the interests of the Certificateholder
under this Agreement and the Noteholders under the Indenture.
SECTION 7.05 JDCC Not to Resign as Servicer. Subject to
the provisions of Section 7.03, JDCC shall not resign from the
obligations and duties hereby imposed on it as Servicer under
this Agreement except upon determination that the performance
of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such
determination permitting the resignation of JDCC shall be
communicated to the Owner Trustee and the Indenture Trustee at
the earliest practicable time (and, if such communication is
not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be
evidenced by an Opinion of Counsel to such effect delivered to
the Owner Trustee and the Indenture Trustee concurrently with
or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a successor
Servicer shall have assumed the responsibilities and
obligations of JDCC in accordance with Section 8.02.
SECTION 7.06 Servicer to Act as Administrator. In the
event of the resignation or removal of the Administrator and
the failure of a successor Administrator to have been
appointed and to have accepted such appointment as successor
Administrator, the Servicer shall become the successor
Administrator and shall be bound by the terms of the
Administration Agreement.
ARTICLE VIII
Default
SECTION 8.01 Servicer Default. If any one of the
following events (a "Servicer Default") shall occur and be
continuing:
(a) any failure by the Servicer to deliver to the
Indenture Trustee for deposit in any of the Trust Accounts or
the Certificate Distribution Account any required payment or
to direct the Indenture Trustee to make any required
distributions therefrom that shall continue unremedied for a
period of three Business Days after written notice of such
failure is received by the Servicer from the Owner Trustee or
the Indenture Trustee or after discovery of such failure by an
officer of the Servicer; or
(b) failure on the part of the Servicer or the Seller,
as the case may be, duly to observe or to perform in any
material respect any other covenants or agreements of the
Servicer or the Seller (as the case may be) set forth in this
Agreement or any other Basic Document, which failure shall (i)
materially and adversely affect the rights of
Certificateholder or Noteholders and (ii) continues unremedied
for a period of 60 days after the date on which written
Page 36
notice of such failure, requiring the same to be remedied,
shall have been given (A) to the Servicer or the Seller (as
the case may be) by the Owner Trustee or the Indenture Trustee
or (B) to the Servicer or the Seller (as the case may be), and
to the Owner Trustee and the Indenture Trustee by the Holders
of Notes evidencing not less than 25% of the Outstanding
Amount of the Notes or the Certificateholder (as defined in
the Trust Agreement); or
(c) an Insolvency Event occurs with respect to the
Servicer;
then, and in each and every case, so long as the Servicer
Default shall not have been remedied, either the Indenture
Trustee, or the Holders of Notes evidencing not less than 25%
of the Outstanding Amount of the Notes, by notice then given
in writing to the Servicer (and to the Indenture Trustee and
the Owner Trustee if given by the Noteholders) may terminate
all the rights and obligations (other than the obligations set
forth in Section 7.02 hereof) of the Servicer under this
Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Notes, the
Certificate or the Receivables or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee
or such successor Servicer as may be appointed under Section
8.02; and, without limitation, the Indenture Trustee and the
Owner Trustee are hereby authorized and empowered to execute
and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice
of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or
otherwise. The predecessor Servicer shall cooperate with the
successor Servicer, the Indenture Trustee and the Owner
Trustee in effecting the termination of the responsibilities
and rights of the predecessor Servicer under this Agreement,
including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the
time be held by the predecessor Servicer for deposit, or shall
thereafter be received by it with respect to a Receivable.
All reasonable costs and expenses (including reasonable
attorneys' fees) incurred in connection with transferring the
Receivable Files to the successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to
this Section shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a
Servicer Default, the Owner Trustee shall give notice thereof
to the Rating Agencies.
SECTION 8.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of
termination, pursuant to Section 8.01 or the Servicer's
resignation in accordance with the terms of this Agreement,
the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement, in the case of
termination, only until the date specified in such termination
notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of
resignation, until the earlier of (x) the date 45 days from
the delivery to the Owner Trustee and the Indenture Trustee of
written notice of such resignation (or written confirmation of
such notice) in accordance with the terms of this Agreement
and (y) the date upon which the predecessor Servicer shall
become unable to act as Servicer, as specified in the notice
of resignation and accompanying Opinion of Counsel. In the
event of the Servicer's termination hereunder, the
Page 37
Indenture Trustee shall appoint a successor Servicer, and the
successor Servicer shall accept its appointment by a written
assumption in form acceptable to the Owner Trustee and the
Indenture Trustee. In the event that a successor Servicer has
not been appointed at the time when the predecessor Servicer
has ceased to act as Servicer in accordance with this Section,
pending the appointment of and acceptance by a successor
Servicer, the Indenture Trustee without further action shall
automatically be appointed and serve as the successor Servicer
and the Indenture Trustee shall be entitled to the Servicing
Fee; provided, however, the provisions of Section 7.01 shall
not apply and the provisions of Section 4.07 shall not apply
in the case of a breach by a predecessor Servicer. The
Indenture Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with
Section 4.14. The Indenture Trustee shall not be liable for
any action or failure to act on the part of the predecessor
Servicer. Notwithstanding the above, the Indenture Trustee
shall, if it shall be legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than
$50,000,000 and whose regular business shall include the
servicing of equipment receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including
the Indenture Trustee acting as successor Servicer) shall be
the successor in all respects to the predecessor Servicer and
shall be subject to all the responsibilities, duties and
liabilities arising thereafter relating thereto placed on the
predecessor Servicer and shall be entitled to the Servicing
Fee and all the rights granted to the predecessor Servicer by
the terms and provisions of this Agreement.
(c) Subject to the Indenture Trustee's right to appoint
a successor Servicer pursuant to Section 8.02(a) after the
Indenture Trustee has become the Servicer, the Servicer may
not resign unless it is prohibited from serving as such by
law.
SECTION 8.03 Notification to Noteholders and the
Certificateholder. Upon any termination of, or appointment of
a successor to, the Servicer pursuant to this Article VIII,
the Owner Trustee shall give prompt written notice thereof to
the Certificateholder and the Indenture Trustee shall give
prompt written notice thereof to Noteholders and the Rating
Agencies.
SECTION 8.04 Waiver of Past Defaults. The Holders of
Notes evidencing not less than a majority of the Outstanding
Amount of the Notes (or the Holder (as defined in the Trust
Agreement) of the Certificate, in the case of any default
which does not adversely affect the Indenture Trustee or the
Noteholders) may, on behalf of all Noteholders and
Certificateholders, waive in writing any default by the
Servicer in the performance of its obligations hereunder and
its consequences, except a default in making any required
deposits to or payments from any of the Trust Accounts in
accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any
Servicer Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or
impair any right consequent thereto.
Page 38
ARTICLE IX
Termination
SECTION 9.01 Optional Purchase of All Receivables and
Termination.
(a) On the last day of any Collection Period
immediately preceding a Payment Date as of which the then
outstanding Pool Balance is 10% or less of the Initial Pool
Balance, the Servicer shall have the option to purchase the
Owner Trust Estate, other than the Trust Accounts and the
Certificate Distribution Account; provided, however, that the
Servicer may not effect any such purchase so long as the
rating on Deere's long-term debt obligations is less than Baa3
by Moody's, unless the Owner Trustee and the Indenture Trustee
shall have received an Opinion of Counsel to the effect that
such purchase would not constitute a fraudulent conveyance;
provided further that each Rating Agency shall receive a copy
of such Opinion of Counsel and shall have confirmed that the
rating assigned to the Notes by such Rating Agency shall not
be withdrawn or downgraded as a result of such purchase. To
exercise such option, the Servicer shall deposit pursuant to
Section 5.03 in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables (including
defaulted Receivables) and shall succeed to all interests in
and to the Trust.
(b) Upon any sale of the assets of the Trust pursuant
to Section 9.02 of the Trust Agreement, the Servicer shall
instruct the Indenture Trustee to deposit the proceeds from
such sale after all payments and reserves therefrom have been
made (the "Insolvency Proceeds") in the Collection Account.
On the Payment Date on which the Insolvency Proceeds are
deposited in the Collection Account (or, if such proceeds are
not so deposited on a Payment Date, on the Payment Date
immediately following such deposit), the Servicer shall
instruct the Indenture Trustee to make the following deposits
(after the application on such Payment Date of the Total
Distribution Amount and funds on deposit in the Reserve
Account pursuant to Sections 5.04 and 5.05) from the
Insolvency Proceeds and any funds remaining on deposit in the
Reserve Account (including the proceeds of any sale of
investments therein as described in the following sentence):
(i) to the Note Distribution Account, any portion
of the accrued but unpaid interest on the Notes not otherwise
deposited into the Note Distribution Account on such Payment
Date;
(ii) to the Note Distribution Account, the
outstanding principal balance of the Notes (after giving
effect to the reduction in the outstanding principal balance
of the Notes to result from the deposits made in the Note
Distribution Account on such Payment Date and on prior Payment
Dates); and
(iii) to the Certificate Distribution Account, the
Certificate Balance (after giving effect to the reduction in
the Certificate Balance to result from the deposits made in
the Certificate Distribution Account on such Payment Date).
Page 39
Any investments on deposit in the Reserve Account and Note
Distribution Account which will not mature on or before such
Payment Date shall be sold by the Indenture Trustee at such
time as will result in the Indenture Trustee receiving the
proceeds from such sale not later than the Transfer Date
preceding such Payment Date. Any Insolvency Proceeds
remaining after the deposits described above shall be paid to
the Seller.
(c) Notice of any termination of the Trust shall be
given by the Servicer to the Owner Trustee and the Indenture
Trustee as soon as practicable after the Servicer has received
notice thereof.
(d) Following the satisfaction and discharge of the
Indenture and the payment in full of the principal of and
interest on, and the cancellation of all of, the Notes, the
Certificateholder will succeed to the rights of the
Noteholders hereunder other than Section 5.05(b) and the Owner
Trustee will succeed to the rights of the Indenture Trustee
pursuant to this Agreement.
(e) This Agreement shall terminate upon the termination
of the Trust.
ARTICLE X
Miscellaneous Provisions
SECTION 10.01 Amendment. The Agreement may be amended by
the Seller, the Servicer and the Trust, with the consent of
the Indenture Trustee, but without the consent of any of the
Noteholders or the Certificateholder, to cure any ambiguity,
to correct or supplement any provision in this Agreement or
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement
or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel delivered to
the Owner Trustee and the Indenture Trustee, adversely affect
in any material respect the interests of any Noteholder or
Certificateholder; provided further that 10 days' prior
written notice of any such amendment be given to each Rating
Agency and, if a Rating Agency notifies the Owner Trustee that
such amendment will result in a downgrading or withdrawal of
the then current rating of the Notes or the Certificate, such
amendment shall become effective with the consent of the
Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the
Certificateholder (as defined in the Trust Agreement).
This Agreement may also be amended from time to time, with
10 days' prior notice to each of the Rating Agencies, by the
Seller, the Servicer and the Owner Trustee, with the consent
of the Indenture Trustee, the consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount
of the Notes and the consent of the Holders (as defined in the
Trust Agreement) of Certificate, for the purpose of adding any
provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner
the rights of the Noteholders or the Certificateholder;
provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the
benefit of the Noteholders or the Certificateholder or (b)
reduce the aforesaid
Page 40
percentage of the Outstanding Amount of the Notes and the
Certificate Balance, the Holders of which are required to
consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and the consent of the
Certificateholder (as defined in the Trust Agreement).
Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to the
Certificateholder and the Indenture Trustee.
It shall not be necessary for the consent of the
Certificateholder or the Noteholders pursuant to this Section
to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by
this Agreement and the Opinion of Counsel referred to in
Section 10.02(i)(1) and that all conditions precedent have
been satisfied. The Owner Trustee and the Indenture Trustee
may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's or the Indenture
Trustee's, as applicable, own rights, duties or immunities
under this Agreement or otherwise.
SECTION 10.02 Protection of Title to Trust.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such
continuation statements, all in such manner and in such places
as may be required by law fully to preserve, maintain, and
protect the interest of the Issuer and the interests of the
Indenture Trustee in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered)
to the Owner Trustee and the Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change
its name, identity or corporate structure in any manner that
would, could or might make any financing statement or
continuation statement filed in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402(7) of
the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least five days' prior written notice
thereof and shall have promptly filed appropriate amendments
to all previously filed financing statements or continuation
statements.
(c) Each of the Seller and the Servicer shall have an
obligation to give the Owner Trustee and the Indenture Trustee
at least 60 days' prior written notice of any relocation of
its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement
and shall promptly file any such amendment. The Servicer
shall at all times maintain each office from which it shall
service Receivables, and its principal executive office,
within the United States of America.
Page 41
(d) The Servicer shall maintain accounts and records as
to each Receivable accurately and in sufficient detail to
permit (i) the reader thereof to know at any time the status
of such Receivable, including payments and recoveries made and
payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with
respect to) each Receivable and the amounts from time to time
deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of
the Receivables, the Servicer's master computer records
(including any backup archives) that refer to a Receivable
shall indicate clearly the interest of the Issuer and the
Indenture Trustee in such Receivable and that such Receivable
is owned by the Issuer and has been pledged to the Indenture
Trustee. Indication of the Issuer's and the Indenture
Trustee's interest in a Receivable shall be deleted from or
modified on the Servicer's computer systems when, and only
when, the related Receivable shall have been paid in full,
purchased or repurchased.
(f) If at any time the Seller or the Servicer shall
propose to sell, grant a security interest in, or otherwise
transfer any interest in equipment receivables to any
prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts
(including any restored from backup archives) that, if they
shall refer in any manner whatsoever to any Receivable, shall
indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Indenture
Trustee.
(g) The Servicer shall permit the Indenture Trustee and
its agents at any time during normal business hours to
inspect, audit and make copies of and abstracts from the
Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the
Owner Trustee or to the Indenture Trustee, within five
Business Days, a list of all Receivables (by contract number
and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificate
furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Owner Trustee and
the Indenture Trustee:
(1) promptly after the execution and delivery of
this Agreement and of each amendment thereto, an Opinion of
Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements
have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the
Indenture Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to
preserve and protect such interest; and
(2) within 90 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Cut-off Date, an Opinion of
Page 42
Counsel, dated as of a date during such 90-day period, either
(A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Owner Trustee and the Indenture
Trustee in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which
such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve
and protect such interest.
Each Opinion of Counsel referred to in clause (l) or
(2) above shall specify any action necessary (as of the date
of such opinion) to be taken in the following year to preserve
and protect such interest.
(j) The Seller shall, to the extent required by
applicable law, cause the Certificate and the Notes to be
registered with the Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.03 Notices. All demands, notices,
instructions and communications upon or to the Seller, the
Servicer, the Owner Trustee, the Indenture Trustee or the
Rating Agencies under this Agreement shall be in writing,
personally delivered, sent by facsimile or mailed by certified
mail, return receipt requested, and shall be deemed to have
been duly given upon receipt (a) in the case of the Seller, to
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, Domestic Finance,
Deere & Company, Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000
(309-765-5815), (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,
Domestic Finance, Deere & Company, Xxx Xxxx Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000-0000 (309-765-5815), (c) in the case of
the Issuer or the Owner Trustee, at the Corporate Trust Office
(as defined in the Trust Agreement), (d) in the case of the
Indenture Trustee, at the Corporate Trust Office, (e) in the
case of Moody's, to Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, (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; and (g) in the case of Fitch, to Fitch IBCA, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Structured Finance Surveillance; or, as to each of the
foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 10.04 Assignment. Notwithstanding anything to
the contrary contained herein, except as provided in Sections
6.04 and 7.03 and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this
Agreement may not be assigned by the Seller or the Servicer.
SECTION 10.05 Limitations on Rights of Others. The
provisions of this Agreement are solely for the benefit of the
Seller, the Servicer, the Issuer, the Owner Trustee, the
Certificateholder, the Indenture Trustee and the Noteholders
and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or
under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Page 43
SECTION 10.06 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 10.07 Separate Counterparts. This Agreement may
be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 10.08 Headings. The headings of the various
Articles and Sections herein are for convenience of reference
only and shall not define or limit any of the terms or
provisions hereof.
SECTION 10.09 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 10.10 Assignment to Indenture Trustee. The
Seller hereby acknowledges and consents to any mortgage,
pledge, assignment and grant of a security interest by the
Issuer to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders of all right, title and
interest of the Issuer in, to and under the Receivables and/or
the assignment of any or all of the Issuer's rights and
obligations hereunder to the Indenture Trustee.
SECTION 10.11 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this
Agreement, the Servicer and the Seller shall not, prior to the
date which is one year and one day after the termination of
this Agreement with respect to the Issuer, acquiesce, petition
or otherwise invoke or cause the Issuer to invoke the process
of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any
Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this
Agreement, the Servicer shall not, prior to the date which is
one year and one day after the termination of this Agreement
with respect to the Seller, acquiesce, petition or otherwise
invoke or cause the Seller to invoke the process of any court
or government authority for the purpose of commencing or
sustaining a case against the Seller under any Federal or
state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Seller.
Page 44
SECTION 10.12 Limitation of Liability of Owner Trustee
and Indenture Trustee.
(a) Notwithstanding anything contained herein to the
contrary, this Agreement has been countersigned by Bankers
Trust (Delaware) not in its individual capacity but solely in
its capacity as Owner Trustee of the Issuer and in no event
shall Bankers Trust (Delaware) in its individual capacity have
any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in
any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this
Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions
of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been accepted by The Bank of New
York not in its individual capacity but solely as Indenture
Trustee and in no event shall The Bank of New York have any
liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in
any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
SECTION 10.13 Additional Securities. The issuance of any
securities by Xxxx Deere Receivables, Inc., other than the
Notes and the Certificate, will require satisfaction of the
Rating Agency Condition.
Page 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 1999-A
By: Bankers Trust (Delaware)
not in its individual capacity but
solely as Owner Trustee on behalf
of the Trust,
By: ___________________________________
Title:
XXXX DEERE RECEIVABLES, INC.,
Seller,
By: ___________________________________
Name: Timur Gok
Title: Assistant Secretary
XXXX DEERE CAPITAL CORPORATION,
Servicer,
By: ___________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
Acknowledged and Accepted:
The Bank of New York,
not in its individual
capacity but solely
as Indenture Trustee,
By: ________________________________________
Title:
Page 46
SCHEDULE A
Schedule of Receivables
[Delivered to the Trust at the Closing]
Page 47
SCHEDULE B
Location of Receivable Files
Xxxxx 000
0 Xxxx Xxxxx Xxxxxx
Xxxx, Xxxxxx 00000
Page 48
SCHEDULE C
LIST OF FISCAL MONTHS
FISCAL MONTH CUTOFF DATES (BY FISCAL YEAR)
Cal-
Fis- en-
cal dar
Mo. Mo. 1999 2000 2001 2002 2003 2004 2005 2006 2007
--------------------------------------------------------------
1 Nov 00Xxx00 00Xxx00 00Xxx00
2 Dec 26Dec99 24Dec00 23Dec01
3 Jan 30Jan 28Jan 27Jan
4 Feb 27Feb 25Feb 24Feb
5 Mar 26Mar 25Mar 24Mar
6 Apr 30Apr 29Apr 28Apr
7 May 30May 28May 27May 26May
8 Jun 27Jun 25Jun 24Jun 23Jun
9 Jul 00Xxx 00Xxx 00Xxx 00Xxx
10 Aug 29Aug 27Aug 26Aug 25Aug
11 Sep 24Sep 24Sep 23Sep 22Sep
12 Oct 31Oct 31Oct 31Oct 31Oct
Page 49
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 May
15, 1999 between Xxxx Deere Owner Trust 1999-A, Xxxx Deere
Receivables, Inc. and Xxxx Deere Capital Corporation.
Dated: ______________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer
______________________________
Name: Timur Gok
Title: Assistant Secretary
Page 50
Payment Date: _______________________________
(1) Servicing Fee:
(2) Administration Fee:
(3) Total Distribution Amount:
(4) Accrued and unpaid interest on the Notes:
(5) Class A Monthly Principal Distributable Amount:
(6) Class B Monthly Principal Distributable Amount:
(7) Deposit to Reserve Account from Collection Account to
increase the amount on deposit in the Reserve Account
to the Specified Reserve Account Balance:
(8) Deposit of Excess to Reserve Account from Collection
Account:
(9) Specified Reserve Account Balance (before any
distributions of excess):
(10) Reserve Account Balance over the Specified Reserve
Account Balance (before any distributions of excess):
(11) Excess Reserve Account Balance distributable to Seller
(5.05(b)(i) or (ii)):
(12) Certificateholder's Monthly Principal Distributable
Amount:
(13) Amount to be withdrawn from the Reserve Account and
deposited into the Note Distribution Account
(5.05(c)):
Interest amount included in above figure:
Principal amount included in above figure:
(14) (a) Pool Balance as of the close of business on the
last day of the related Collection Period:
(b) Note Value at the end of the related Collection
Period:
(c) Number of Accounts at the end of the related
Collection Period:
(15) Outstanding Principal Balance of Class A-1 Notes:
Outstanding Principal Balance of Class A-2 Notes
Outstanding Principal Balance of Class A-3 Notes
Outstanding Principal Balance of Class A-4 Notes
Outstanding Principal Balance of Class B Note
Outstanding Principal Balance of the Certificate:
(16) Aggregate amount of Purchased Receivables for related
Collection Period:
(17) Reserve Account Balance after giving effect to all
distributions:
(18) Specified Reserve Account Balance (after all
distributions and adjustments):
Page 51
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 May
15, 1999 between Xxxx Deere Owner Trust 1999-A, 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: Treasurer
___________________________________
Name: Timur Gok
Title: Assistant Secretary
Page 52
SCHEDULE E
Statement to Certificateholders
pursuant to Section 5.06(a)
Payment Date: _____________________________________
(1) Amount of principal being paid or distributed:
(a) Class A-1 Notes:
per $1,000 original principal amount:
(b) Class A-2 Notes:
per $1,000 original principal amount:
(c) Class A-3 Notes:
per $1,000 original principal amount:
(d) Class A-4 Notes:
per $1,000 original principal amount:
(e) Class B Note:
per $1,000 original principal amount:
(f) Certificate:
per $1,000 original principal amount:
(g) Total:
(2) (a) Amount of interest being paid or distributed:
(i) Class A-1 Notes:
per $1,000 original principal amount:
(ii) Class A-2 Notes:
per $1,000 original principal amount:
(iii) Class A-3 Notes:
per $1,000 original principal amount:
(iv) Class A-4 Notes:
per $1,000 original principal amount:
(v) Class B Note:
per $1,000 original principal amount
Page 53
(vii) Total:
(3) (a) Pool Balance at end of related Collection
Period:
(b) Note Value at end of related Collection Period:
(4) After giving effect to distributions on this Payment
Date:
(a) (i) Outstanding principal amount of
Class A-1 Notes:
(ii) Outstanding principal amount of
Class A-2 Notes:
(iii) Outstanding principal amount of
Class A-3 Notes:
(iv) Outstanding principal amount of
Class A-4 Notes:
(v) Outstanding principal amount of
Class B Note:
(b) Certificate Balance:
(5) Amount of Servicing Fee:
per $1,000 original principal amount of Notes and
Certificate:
(6) Amount of Administration Fee:
(7) Aggregate Purchase Amounts for Collection Period:
(8) (i) Amount in Reserve Account:
(ii) Specified Reserve Account Balance:
(9) Amount of any payments in respect of the Receivables
that are more than 60 days past due as of the end of
the related Collection Period:
Page 54
SCHEDULE F
Statement for Noteholders
pursuant to Section 5.06(b)
Payment Date: _____________________________________
(1) Amount of principal being paid on Notes:
(a) Class A-1 Notes:
per $1,000 original principal amount:
(b) Class A-2 Notes:
per $1,000 original principal amount:
(c) Class A-3 Notes:
per $1,000 original principal amount:
(d) Class A-4 Notes:
per $1,000 original principal amount:
(e) Class B Note:
per $1,000 original principal amount:
(f) Total:
(2) (a) Amount of interest being paid on Notes:
(i) Class A-1 Notes:
per $1,000 original principal amount:
(ii) Class A-2 Notes:
per $1,000 original principal amount:
(iii) Class A-3 Notes:
per $1,000 original principal amount:
(iv) Class A-4 Notes:
per $1,000 original principal amount:
(v) Class B Note:
per $1,000 original principal amount
(vi) Total:
Page 55
(3) (a) Pool Balance at end of related Collection
Period:
(b) Note Value at end of related Collection Period:
(4) After giving effect to distributions on this Payment
Date:
(a) (i) Outstanding principal amount of Class A-1
Notes:
(ii) Outstanding principal amount of Class A-2
Notes:
(iii) Outstanding principal amount of Class A-3
Notes:
(iv) Outstanding principal amount of Class A-4
Notes:
(v) Outstanding principal amount of Class B
Note:
(b) (i) Certificate Balance:
(ii) Certificate Factor:
(5) Amount of Servicing Fee:
per $1,000 original principal amount of
Notes and Certificate:
(6) Amount of Administration Fee:
(7) Aggregate Purchase Amounts for Collection Period:
(8) (i) Amount in Reserve Account:
(ii) Specified Reserve Account Balance:
(9) Amount of any payments in respect of the Receivables
that are more than 60 days past due as of the end of
the related Collection Period:
Page 56
SCHEDULE G
Instructions to the Trustee for payments and deposits
pursuant to Section 5.04(b) of the Sale and Servicing
Agreement:
Payment Date: _____________________
(i) Payment of Servicing Fee (including any previously
unpaid Servicing Fees) to Servicer: _________________.
(ii) Payment of Administration Fee to Administrator:
_________________.
(iii) Accrued and unpaid interest on the Notes for such
Payment Date: _________________.
(iv) Note Principal Distributable Amount to be deposited
into Note Distribution Account: _________________.
(v) Deposit to Reserve Account to increase the amounts on
deposit in the Reserve Account to the Specified Reserve
Account Balance: _________________.
(vi) Certificate Monthly Principal Distributable Amount to be
deposited into Certificate Distribution Account:
_________________.
(vii) Deposit to Reserve Account: _________________.
Page 57
