EXHIBIT 4.2
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XXXX DEERE OWNER TRUST 2001
TRUST AGREEMENT
between
XXXX DEERE RECEIVABLES, INC.
and
BANKERS TRUST (DELAWARE)
Owner Trustee
Dated as of November 1, 2001
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Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Capitalized Terms...........................................................................4
SECTION 1.02 Other Definitional Provisions...............................................................6
ARTICLE II
ORGANIZATION
SECTION 2.01 Name........................................................................................7
SECTION 2.02 Office......................................................................................7
SECTION 2.03 Purposes and Powers.........................................................................7
SECTION 2.04 Appointment of Owner Trustee................................................................8
SECTION 2.05 Initial Capital Contribution of Trust Estate................................................8
SECTION 2.06 Declaration of Trust........................................................................8
SECTION 2.07 Liability of the Owner......................................................................9
SECTION 2.08 Title to Trust Property.....................................................................9
SECTION 2.09 Situs of Trust..............................................................................9
SECTION 2.10 Representations and Warranties of the Depositor.............................................9
ARTICLE III
CERTIFICATE AND TRANSFER OF INTERESTS
SECTION 3.01 Initial Ownership..........................................................................10
SECTION 3.02 The Certificate............................................................................10
SECTION 3.03 Authentication of the Certificate..........................................................10
SECTION 3.04 Exchange of the Certificate................................................................11
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Certificate...........................................11
SECTION 3.06 Persons Deemed Owners......................................................................11
SECTION 3.07 Access to Certificateholder's Name and Address.............................................12
SECTION 3.08 Maintenance of Office or Agency............................................................12
SECTION 3.09 Appointment of Paying Agent................................................................12
SECTION 3.10 Depositor as Certificateholder.............................................................13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01 Prior Notice to Owner with Respect to Certain Matters......................................13
SECTION 4.02 Action by the Owner with Respect to Certain Matters........................................13
SECTION 4.03 Action by the Owner with Respect to Bankruptcy.............................................14
SECTION 4.04 Restrictions on the Owner's Power..........................................................14
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 Establishment of Trust Account.............................................................14
SECTION 5.02 Application of Trust Funds.................................................................14
SECTION 5.03 Method of Payment..........................................................................15
SECTION 5.04 No Segregation of Monies; No Interest......................................................15
SECTION 5.05 Accounting and Reports to, the Owner, the Internal Revenue Service and Others..............15
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 General Authority..........................................................................15
SECTION 6.02 General Duties.............................................................................16
SECTION 6.03 Action upon Instruction....................................................................16
SECTION 6.04 No Duties Except as Specified in This Agreement or in Instructions.........................17
SECTION 6.05 No Action Except Under Specified Documents or Instructions.................................17
SECTION 6.06 Restrictions...............................................................................17
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 Acceptance of Trusts and Duties............................................................17
SECTION 7.02 Furnishing of Documents....................................................................19
SECTION 7.03 Representations and Warranties.............................................................19
SECTION 7.04 Reliance; Advice of Counsel................................................................19
SECTION 7.05 Not Acting in Individual Capacity..........................................................20
SECTION 7.06 Owner Trustee Not Liable for Certificate or Receivables....................................20
SECTION 7.07 Owner Trustee May Own Notes................................................................20
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 Owner Trustee's Fees and Expenses..........................................................20
SECTION 8.02 Indemnification............................................................................21
SECTION 8.03 Payments to the Owner Trustee..............................................................21
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 Termination of Trust Agreement.............................................................21
SECTION 9.02 Dissolution upon Bankruptcy of the Depositor...............................................22
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 Eligibility Requirements for Owner Trustee................................................23
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SECTION 10.02 Resignation or Removal of Owner Trustee...................................................23
SECTION 10.03 Successor Owner Trustee...................................................................24
SECTION 10.04 Merger or Consolidation of Owner Trustee..................................................24
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee.............................................24
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Supplements and Amendments................................................................25
SECTION 11.02 No Legal Title to Owner Trust Estate in the Owner.........................................26
SECTION 11.03 Limitations on Rights of Others...........................................................27
SECTION 11.04 Notices ..................................................................................27
SECTION 11.05 Severability..............................................................................27
SECTION 11.06 Separate Counterparts.....................................................................27
SECTION 11.07 Successors and Assigns....................................................................27
SECTION 11.08 Covenant of the Depositor.................................................................28
SECTION 11.09 No Petition...............................................................................28
SECTION 11.10 No Recourse...............................................................................28
SECTION 11.11 Headings..................................................................................28
SECTION 11.12 GOVERNING LAW.............................................................................28
SECTION 11.13 Depositor Payment Obligation..............................................................28
SECTION 11.14 Administrator.............................................................................29
SECTION 11.15 Non-transferability of the Certificates(s)................................................29
EXHIBIT A Asset Backed Certificate................................................................A-1
EXHIBIT B Certificate of Trust of Xxxx Deere Owner Trust 2001.....................................B-1
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TRUST AGREEMENT, dated as of November 1, 2001, between Xxxx
Deere Receivables, Inc., a Nevada corporation, as Depositor, and Bankers Trust
(
Delaware), a
Delaware banking corporation, as Owner Trustee.
ARTICLE I
Definitions
SECTION 1.01 CAPITALIZED TERMS. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Administration Agreement" means the Administration Agreement
dated as of November 1, 2001, among the Administrator, the Trust and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Administrator" means Xxxx Deere Capital Corporation, a
Delaware corporation, or any successor Administrator under the Administration
Agreement.
"Agreement" shall mean this
Trust Agreement, as the same may
be amended and supplemented from time to time.
"Basic Documents" shall mean the Purchase Agreement, the Sale
and Servicing Agreement, the Indenture, the Administration Agreement, the
Depository Agreement and the other documents and certificates delivered in
connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in
Section 11.13.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of
the
Delaware Code, 12 Del. Code Section 3801 ET SEQ., as the same may be amended
from time to time.
"Certificate" shall mean a certificate evidencing the
beneficial interest of the Owner in the Trust, substantially in the form
attached hereto as Exhibit A.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of Trust in
the form of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.04.
"Certificateholder" shall mean the Depositor.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
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"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
E.A. Delle Donne Corporate Center, Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000, with a copy to Bankers Trust Company, Four
Albany Street, 10th Floor, New York, New York 10006, Attention: Corporate Trust
& Agency Group; or at such other address as the Owner Trustee may designate by
notice to the Owners and the Depositor, or the principal corporate trust office
of any successor Owner Trustee (the address of which the successor owner trustee
will notify the Owners and the Depositor).
"CSFB" shall have the meaning assigned to such term in
Section 2.03(i).
"Depositor" shall mean Xxxx Deere Receivables, Inc., in its
capacity as Depositor hereunder.
"Depository Agreement" means the agreement among the Trust,
the Indenture Trustee and The Depository Trust Company, dated as of the Closing
Date, substantially in the form of Exhibit C to the Indenture.
"Deutsche" shall have the meaning assigned to such term in
Section 2.03(i).
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" shall mean the Indenture, dated as of November 1,
2001, between the Trust and the Indenture Trustee, as the same may be amended
and supplemented from time to time.
"Indenture Trustee" shall mean The Bank of New York, not in
its individual capacity but solely as Indenture Trustee under the Indenture.
"JDCC" shall mean Xxxx Deere Capital Corporation, a
Delaware
corporation.
"Merrill" shall have the meaning assigned to such term in
Section 2.03(i).
"Xxxxxx" shall have the meaning assigned to such term in
section 2.03(i).
"Owner" shall mean the Certificateholder.
"Owner Trust Estate" shall mean all right, title and interest
of the Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and the Certificate Distribution Account and all
other property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
"Owner Trustee" shall mean Bankers Trust (
Delaware), a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor Owner Trustee hereunder.
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"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.09 and shall initially be Bankers Trust Company.
"Purchase Agreement" shall mean the Purchase Agreement, dated
November 1, 2001, between JDCC and the Depositor, as the same may be amended,
modified or supplemented from time to time.
"Record Date" shall mean, with respect to any Payment Date,
the close of business on the last day of the calendar month immediately
preceding the calendar month in which the Payment Date occurs.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement among the Trust, the Depositor, as seller, and JDCC, as
servicer, dated as of November 1, 2001, as the same may be amended, modified or
supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the
State of
Delaware.
"SSB" shall have the meaning assigned to such term in Section
2.03(i).
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Underwriters" shall have the meaning assigned to such term in
Section 2.03(i).
SECTION 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the Sale and Servicing Agreement or, if
not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the 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.
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(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
ARTICLE II
Organization
SECTION 2.01 NAME. The Trust created hereby shall be known as
"Xxxx Deere Owner Trust 2001" in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
SECTION 2.02 OFFICE. The office of the Trust shall be in care
of the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Owners and
the Depositor.
SECTION 2.03 PURPOSES AND POWERS. The purpose of the Trust is
to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture to sell
$896,640,000 aggregate principal amount of the Class A Notes to
Deutsche Banc Alex. Xxxxx Inc. ("Deutsche"), Credit Suisse First
Boston ("CSFB"), X.X. Xxxxxx Securities Inc. ("Xxxxxx"), Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Merrill") and
Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB" and, together with Deutsche,
CSFB, Xxxxxx and Merrill, the "Underwriters") upon the written
order of the Depositor, and pursuant to this Agreement a
Certificate with a $34,935,802.21 aggregate principal amount to
the Depositor upon the written order of the Depositor;
(ii) with the proceeds of the sale of the Class A Notes and
the issuance of the Certificate, to pay the Depositor the amounts
owed pursuant to Section 2.01 of the Sale and Servicing
Agreement, by directing Deutsche to wire transfer such proceeds
in accordance with instructions received from the Depositor;
(iii) with the proceeds from capital contributions from the
Depositor, to fund the Reserve Account and to pay organizational
and transactional expenses of the Trust;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage
and distribute to the Owner pursuant to the terms of the Sale and
Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to the Trust pursuant to, the
Indenture;
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(v) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection
with conservation of the Owner Trust Estate and the making of
distributions to the Owner and the Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.04 APPOINTMENT OF OWNER TRUSTEE. The Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.05 INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Depositor
shall pay organizational expenses of the Trust as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
SECTION 2.06 DECLARATION OF TRUST.
(a) The Owner Trustee hereby declares that it will hold the
Owner Trust Estate in trust upon and subject to the conditions set forth herein
for the use and benefit of the Owner, subject to the obligations of the Trust
under the Basic Documents. It is the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of business trust. It is the
intention of the parties that the Trust will be disregarded as an entity
separate from the Owner for U.S. federal income tax purposes as provided by
Treasury Regulation Section 301.7701-3(b)(1)(ii). In the event, however, that
during its term the Trust has more than one member then the parties agree, for
U.S. federal income tax purposes, to treat the Trust as a partnership and take
no action inconsistent with the treatment of the Trust as a partnership. In such
event, the parties agree that, unless otherwise required by appropriate tax
authorities, the Trust will elect to be treated as a partnership and will file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust. In no event shall the
Trust elect to be treated as an association taxable as a corporation.
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(b) The Depositor shall make an election on Internal Revenue
Service Form 8832, Entity Classification Election, for the Trust to be
disregarded as a separate entity from the Owner.
SECTION 2.07 LIABILITY OF THE OWNER.
(a) The Depositor shall be liable directly to and will
indemnify the injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent not paid out of the
Owner Trust Estate) to the extent that the Depositor would be liable if the
Trust were a partnership under the Delaware Revised Uniform Limited Partnership
Act in which the Depositor were a general partner; provided, however, that the
Depositor shall not be liable for any losses incurred by a Certificateholder in
the capacity of an investor in the Certificate or a Noteholder in the capacity
of an investor in the Notes. In addition, any third party creditors of the Trust
(other than in connection with the obligations described in the preceding
proviso for which the Depositor shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The obligations of the Depositor under this
paragraph shall be evidenced by the Certificate described in Section 3.10.
(b) The Owner, other than to the extent set forth in
paragraph (a), shall not have any personal liability for any liability or
obligation of the Trust.
SECTION 2.08 TITLE TO TRUST PROPERTY. Legal title to all the
Owner Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.09 SITUS OF TRUST. The Trust will be located in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware or the State of New York.
The Trust shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The only office of the Trust
will be at the Corporate Trust Office in Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents and warrants to the Owner Trustee that:
(i) the Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Nevada, with power and authority to own its properties and to
conduct its business as such properties are currently owned and
such business is presently conducted;
(ii) the Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which
the failure to so qualify or to obtain such license or approval
would render any
9
Receivable unenforceable that would otherwise be enforceable by
the Depositor, the Sub-Servicer or the Owner Trustee;
(iii) the Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor
has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Trust and the
Depositor shall have duly authorized such sale and assignment and
deposit to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary corporate
action; and
(iv) the consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or
by-laws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable
to the Depositor of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
ARTICLE III
Certificate and Transfer of Interests
SECTION 3.01 INITIAL OWNERSHIP. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.05 and until
the termination of the Trust, the Depositor shall be the sole beneficiary of the
Trust.
SECTION 3.02 THE CERTIFICATE. The Certificate shall be issued
in denominations of $100,000 and integral multiples of $1,000 in excess thereof;
provided, however, that one Certificate may be issued in a denomination that
includes any remaining portion of the initial Certificate Balance of the
Certificate. The Certificate shall be executed on behalf of the Trust by manual
or facsimile signature of a Trust Officer of the Owner Trustee. The Certificate
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall, when authenticated pursuant to Section 3.03, be validly issued
and entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of the Certificate or did not hold such offices at
the date of authentication and delivery of the Certificate.
SECTION 3.03 AUTHENTICATION OF THE CERTIFICATE. Concurrently
with the initial sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificate in an
aggregate principal amount equal to the initial Certificate
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Balance to be executed on behalf of the Trust, authenticated and delivered to
the Depositor. The Certificate shall not entitle its holder to any benefit under
this Agreement, or shall be valid for any purpose, unless there shall appear on
such Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by the Owner Trustee or the Owner Trustee's
authentication agent, by manual signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. The Certificate shall be dated the date of its
authentication.
SECTION 3.04 EXCHANGE OF THE CERTIFICATE. The Certificate
Registrar shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 3.08, a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Owner Trustee shall provide for
the registration of the Certificate and of exchanges of the Certificate as
herein provided. Bankers Trust Company shall be the initial Certificate
Registrar.
At the option of the Certificateholder, the Certificate may be
exchanged for other Certificates of authorized denominations of a like aggregate
amount upon surrender of the Certificate to be exchanged at the office or agency
maintained pursuant to Section 3.08.
Every Certificate presented or surrendered for exchange shall
be accompanied by a written instrument of exchange in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or its attorney duly authorized in writing. Each Certificate
surrendered for registration of exchange shall be cancelled and subsequently
disposed of by the Owner Trustee in accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of the Certificate, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of the Certificate.
SECTION 3.05 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATE.
If (a) any mutilated Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a protected purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee, or the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section, the Owner Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest in
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.06 PERSONS DEEMED OWNERS. The Owner Trustee or the
Certificate Registrar or any Paying Agent may treat the Person in whose name any
Certificate shall be
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registered in the Certificate Register as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 5.02 and for all other
purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or
any Paying Agent shall be bound by any notice to the contrary.
SECTION 3.07 ACCESS TO CERTIFICATEHOLDER'S NAME AND ADDRESS.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Depositor in writing the name and address of
the Certificateholder as of the most recent Record Date.
SECTION 3.08 MAINTENANCE OF OFFICE OR AGENCY. The Owner
Trustee shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where the Certificate may be surrendered
for registration of exchange and where notices and demands to or upon the Owner
Trustee in respect of the Certificate and the Basic Documents may be served. The
Owner Trustee initially designates Bankers Trust Company, 0 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust & Agency Group, as
its principal corporate trust office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor and to the Certificateholder of any
change in the location of the Certificate Register or any such office or agency.
SECTION 3.09 APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make distributions to the Certificateholder from the Certificate
Distribution Account pursuant to Section 5.02 and shall report the amounts of
such distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account for
the purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be Bankers Trust Company, and any co-paying agent chosen by Bankers
Trust Company, and acceptable to the Owner Trustee. Bankers Trust Company shall
be permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee and the Depositor. In the event that Bankers Trust Company shall no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to act
as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholder in trust for the benefit of the Certificateholder until
such sums shall be paid to the Certificateholder. The Paying Agent shall return
all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner Trustee.
The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent, and to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
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SECTION 3.10 DEPOSITOR AS CERTIFICATEHOLDER. On the Closing
Date, the Depositor shall acquire the Certificate representing 100% of the
initial Certificate Balance and, thereafter, shall retain beneficial and record
ownership of the Certificate representing 100% of the Certificate Balance. Any
attempted transfer of any Certificate that would reduce such interest of the
Depositor below 100% of the Certificate Balance shall be void. The Owner Trustee
shall cause any Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE".
ARTICLE IV
Actions by Owner Trustee
SECTION 4.01 PRIOR NOTICE TO OWNER WITH RESPECT TO CERTAIN
MATTERS. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action and the Owner shall not have notified the Owner Trustee in writing prior
to the 30th day after such notice is given that the Owner has withheld consent
or provided alternative direction:
(i) the initiation of any claim or lawsuit by the Trust
(other than an action to collect on a Receivable) and the
compromise of any action, claim or lawsuit brought by or against
the Trust (other than an action to collect on a Receivable);
(ii) the election by the Trust to file an amendment to the
Certificate of Trust;
(iii) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(iv) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
not required and such amendment materially adversely affects the
interest of the Owner;
(v) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Owner; or
(vi) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to
this Agreement of a successor Certificate Registrar, or the
consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee or Certificate Registrar of its obligations
under the Indenture or this Agreement, as applicable.
SECTION 4.02 ACTION BY THE OWNER WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the written
direction of the Owner and the Holders of not less than a majority of the
Outstanding Amount of the Notes, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 8 thereof, (b) appoint a successor
Administrator pursuant to Section 8 of the Administration Agreement, (c) remove
the
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Servicer under the Sale and Servicing Agreement pursuant to Section 8.01 thereof
or (d) except as expressly provided in the Basic Documents, sell the Receivables
after the termination of the Indenture. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Owner.
SECTION 4.03 ACTION BY THE OWNER WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior written approval of the Owner
and the Holders of not less than a majority of the Outstanding Amount of the
Notes and the delivery to the Owner Trustee by the Owner of a certificate
certifying that the Owner reasonably believes that the Trust is insolvent.
SECTION 4.04 RESTRICTIONS ON THE OWNER'S POWER. The Owner
shall not direct the Owner Trustee to take or refrain from taking any action if
such action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents or would be
contrary to Section 2.03 nor shall the Owner Trustee be obligated to follow any
such direction, if given.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01 ESTABLISHMENT OF TRUST ACCOUNT. The Owner
Trustee, for the benefit of the Certificateholder, shall establish and maintain
in the name of the Trust an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholder.
The Owner Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof. Except as otherwise provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholder. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Deposit Account, the
Owner Trustee (or the Depositor on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee or an
affiliate thereof) shall within 10 Business Days following notification of such
occurrence (or such longer period, not to exceed 30 calendar days, as to which
each Rating Agency may consent) establish a new Certificate Distribution Account
as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Certificate Distribution Account.
SECTION 5.02 APPLICATION OF TRUST FUNDS.
(a) On each Payment Date, the Owner Trustee will distribute to
the Certificateholder, amounts deposited in the Certificate Distribution Account
pursuant to Sections 5.04 and 5.05 of the Sale and Servicing Agreement on such
Payment Date.
(b) On each Payment Date, the Owner Trustee shall send to the
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.06(a) of the Sale and Servicing Agreement on such Payment
Date.
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SECTION 5.03 METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to the Certificateholder on any Payment Date
shall be made to the Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of the
Certificateholder at a bank or other entity having appropriate facilities
therefor, if the Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date or, if not, by check mailed to the Certificateholder at the
address of the Certificateholder appearing in the Certificate Register.
SECTION 5.04 NO SEGREGATION OF MONIES; NO INTEREST. Subject to
Sections 5.01 and 5.02, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05 ACCOUNTING AND REPORTS TO, THE OWNER, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain (or
cause to be maintained) the books of the Trust on a fiscal year basis ending
October 31 (or such other period as may be required by applicable law), with the
first year being a short year ending October 31, 2002, and on the accrual method
of accounting, (b) deliver to the Owner, as may be required by the Code and
applicable Treasury Regulations, such information as may be required to enable
the Owner to prepare its federal and state income tax returns, (c) file such tax
returns relating to the Trust as directed by the Owner and make such elections
as directed by the Owner as may from time to time be required or appropriate
under any applicable state or federal statute or rule or regulation thereunder
so as to maintain the Trust's characterization as disregarded as a separate
entity from the Owner for U.S. federal income tax purposes, and (d) in the event
that during its term the Trust has more than one member as determined for such
purposes, deliver to each member and file such returns as directed by the Owner
to treat the Trust as a partnership.
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01 GENERAL AUTHORITY. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, or any amendment thereto or other agreement, in each case, in such form
as the Depositor shall approve as evidenced conclusively by the delivery of such
certificates and documents to the Owner Trustee for the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Administrator directs in writing
with respect to the Basic Documents and shall, upon the written direction of the
Administrator, execute and deliver any amendments to this Agreement or any Basic
Documents presented by the Administrator for execution and delivery by the Owner
Trustee.
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SECTION 6.02 GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the Basic Documents and to
administer the Trust in the interest of the Owner, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement.
SECTION 6.03 ACTION UPON INSTRUCTION.
(a) Subject to Article IV, the Owner may, by written
instruction, direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the Owner
pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the Owner
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Owner received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interest of the Owner, and
shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Owner
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
16
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the Owner, and shall
have no liability to any Person for such action or inaction.
SECTION 6.04 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT
OR IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.03; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
SECTION 6.05 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (a) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (b) in accordance with the Basic Documents
and (c) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
SECTION 6.06 RESTRICTIONS. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Owner shall not direct the Owner Trustee to take action that would
violate the provisions of this Section. In no event shall the Trust elect to be
treated as an association taxable as a corporation.
ARTICLE VII
Concerning the Owner Trustee
SECTION 7.01 ACCEPTANCE OF TRUSTS AND DUTIES. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except for (i) its own willful misconduct or negligence or (ii) the inaccuracy
of any representation or warranty contained in
17
Section 7.03 expressly made by the Owner Trustee. In particular, but not by way
of limitation (and subject to the exceptions set forth in the preceding
sentence):
(i) the Owner Trustee shall not be liable for any error
of judgment made by a responsible officer of the Owner Trustee;
(ii) the Owner Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with
the instructions of the Administrator, the Depositor, the
Indenture Trustee or any Owner;
(iii) no provision of this Agreement or any Basic Document
shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any
of its rights or powers hereunder or under any Basic Document, if
the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(iv) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the
Notes;
(v) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of
the Owner Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificate, and the Owner Trustee shall in
no event assume or incur any liability, duty, or obligation to
any Noteholder or to the Owner, other than as expressly provided
for herein and in the Basic Documents;
(vi) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee or the
Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the Basic
Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under
the Indenture or the Servicer under the Sale and Servicing
Agreement; and
(vii) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any Disclosure
litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or
direction of the Owner, unless the Owner has offered to the Owner
Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in
any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such
act.
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SECTION 7.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Owner promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee and in its possession under the Basic Documents.
SECTION 7.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants to the Depositor, for the benefit of the Owner,
that:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of
Delaware. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement
(ii) it has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers
who is duly authorized to execute and deliver this Agreement on
its behalf; and
(iii) neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will contravene any federal or Delaware law,
governmental rule or regulation governing the banking or trust
powers of the Owner Trustee, or constitute any default under its
charter documents or by-laws.
SECTION 7.04 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Basic Document.
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SECTION 7.05 NOT ACTING IN INDIVIDUAL CAPACITY. Except as
provided in this Article VII, in accepting the trusts hereby created Bankers
Trust (Delaware) acts solely as owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
SECTION 7.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATE OR
RECEIVABLES. The recitals contained herein and in the Certificate (other than
the signature and counter-signature of the Owner Trustee on the Certificate and
its representations and warranties in Section 7.03) shall be taken as the
statements of the Depositor and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document or of the
Certificate (other than the signature and countersignature of the Owner Trustee
on the Certificate) or the Notes, or of any Receivable or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the
perfection and priority of any security interest created by any Receivable in
any Financed Equipment or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to the Certificateholder
under this Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Equipment;
the existence and enforceability of any insurance thereon: the existence and
contents of any Receivable on any computer or other record thereof; the validity
of the assignment of any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Depositor or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee.
SECTION 7.07 OWNER TRUSTEE MAY OWN NOTES. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may deal with the Depositor, the Administrator, the Indenture Trustee and
the Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Depositor
and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
20
SECTION 8.02 INDEMNIFICATION. The Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, except only that the Depositor shall not be
liable for or required to indemnify the Owner Trustee from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 7.01. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In any event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Owner Trustee's choice of legal
counsel shall be subject to the approval of the Depositor, which approval shall
not be unreasonably withheld.
SECTION 8.03 PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid
to the Owner Trustee pursuant to this Article VIII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
ARTICLE IX
Termination of
Trust Agreement
SECTION 9.01 TERMINATION OF
TRUST AGREEMENT.
(a) The Trust shall dissolve (i) upon the final distribution
by the Owner Trustee of all moneys or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture, the Sale and
Servicing Agreement and Article V or (ii) at the time provided in Section 9.02.
Any money or other property held as part of the Owner Trust Estate following
such distribution (and following a final distribution of proceeds from a sale
under Section 9.02) shall be distributed to the Depositor.
(b) Except as provided in Section 9.01(a), neither the
Depositor nor the Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the
Payment Date upon which the Certificateholder shall surrender its Certificate to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to the Certificateholder mailed within
five Business Days of receipt of notice of such termination from the Servicer
given pursuant to Section 9.01(c) of the Sale and Servicing Agreement, stating
(i) the Payment Date upon or with respect to which final payment of the
Certificate shall be made upon presentation and surrender of the Certificate at
the office of the Paying Agent therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation
21
and surrender of the Certificate at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the time such notice
is given to the Certificateholder. Upon presentation and surrender of the
Certificate, the Paying Agent shall cause to be distributed to the
Certificateholder amounts distributable on such Payment Date pursuant to
Section 5.02.
In the event that the Certificateholder shall not surrender
its Certificate for cancellation within six months after the date specified in
the above mentioned written notice, the Owner Trustee shall give a second
written notice to the Certificateholder to surrender its Certificate for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice, the Certificate shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the Certificateholder
concerning surrender of its Certificate, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in the Trust after exhaustion of such remedies shall be
distributed by the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and satisfaction of all
obligations in accordance with Section 3808 of the Business Trust Statute, as
amended, the Owner Trustee shall cause the Certificate of Trust to be canceled
by filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business Trust Statute and
the Trust shall terminate and this Agreement (other than Article VIII) shall be
of no further force or effect.
SECTION 9.02 DISSOLUTION UPON BANKRUPTCY OF THE DEPOSITOR. In
the event that an Insolvency Event shall occur with respect to the Depositor,
the Trust shall be dissolved in accordance with Section 9.01 90 days after the
date of such Insolvency Event, unless, before the end of such 90-day period, the
Owner Trustee shall have received written instructions from each of the
Noteholders, to the effect that each such party disapproves of the liquidation
of the Receivables and termination of the Trust. Promptly after the occurrence
of any Insolvency Event with respect to the Depositor, (i) the Depositor shall
give the Indenture Trustee and the Owner Trustee written notice of such
Insolvency Event, (ii) the Owner Trustee shall, upon the receipt of such written
notice from the Depositor, give prompt written notice to the Certificateholder
and the Indenture Trustee, of the occurrence of such event and (iii) the
Indenture Trustee shall, upon receipt of written notice of such Insolvency Event
from the Owner Trustee or the Depositor, give prompt written notice to the
Noteholders of the occurrence of such event; provided, however, that any failure
to give a notice required by this sentence shall not prevent or delay, in any
manner, a dissolution of the Trust pursuant to the first sentence of this
Section 9.02. Upon a dissolution pursuant to this Section, the Owner Trustee
shall direct the Indenture Trustee promptly to sell the assets of the Trust
(other than the Trust Accounts and the Certificate Distribution Account) in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds of such a sale of the assets of the Trust shall be treated as
collections under the Sale and Servicing Agreement.
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ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The
Owner Trustee shall at all times be a corporation satisfying the provisions of
Section 3807 (a) of the Business Trust Statute; authorized to exercise corporate
trust powers; and having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or state authorities. If
such corporation shall publish reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.02.
SECTION 10.02 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator; provided,
however, that such resignation and discharge shall only be effective upon the
appointment of a successor Owner Trustee. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Owner Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
23
SECTION 10.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement: and the Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Owner Trustee to all Certificateholders, the Indenture Trustee, the
Noteholders and the Rating Agencies. If the Administrator shall fail to mail
such notice within 10 days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Administrator.
SECTION 10.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided that such corporation shall be eligible pursuant to Section
10.01, without the execution or filing of any instrument or any further act on
the part of any of the parties hereto; anything herein to the contrary
notwithstanding; provided further that the Owner Trustee shall mail notice of
such merger or consolidation to the Rating Agencies.
SECTION 10.05 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Equipment may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee
24
pursuant to Section 10.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee
under this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01 SUPPLEMENTS AND AMENDMENTS. This Agreement may
be amended by the Depositor and the Owner Trustee, with prior written notice to
the Rating
25
Agencies, without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholder: provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder or the Certificateholder.
This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes and the consent of the
Certificateholder (which consents will not be unreasonably withheld) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholder; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes required to consent to any such amendment or
eliminate the consent of the Certificateholder to any such amendment, without
the consent of the holders of all the outstanding Notes and the Certificate.
Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Indenture Trustee and each of
the Rating Agencies.
It shall not be necessary for the consent of the
Certificateholder, the Noteholders or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of the
Certificateholder provided for in this Agreement or in any other Basic Document)
and of evidencing the authorization of the execution thereof by the
Certificateholder shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
Prior to the execution of any amendment to this Agreement or
the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent have
been satisfied. The Owner Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 11.02 NO LEGAL TITLE TO OWNER TRUST ESTATE IN THE
OWNER. The Owner shall not have legal title to any part of the Owner Trust
Estate. The Owner shall be entitled to receive distributions with respect to its
undivided ownership interest therein only in accordance with Articles V and IX.
No transfer, by operation of law or otherwise, of any right,
26
title, and interest of the Owner to and in its ownership interest in the Owner
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 11.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for
Section 2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Owner, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders and nothing
in this Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.04 NOTICES.
(a) Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three Business Days after mailing if mailed
by certified mail, postage prepaid (except that notice to the Owner Trustee
shall be deemed given only upon actual receipt by the Owner Trustee), if to the
Owner Trustee, addressed to the Corporate Trust Office; if to the Depositor,
addressed to Xxxx Deere Receivables, Inc., First Xxxxxxxxxx Xxxx Xxxx., 0 Xxxx
Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention of Manager, with a copy to Deere &
Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Treasury
Department, Director, Corporate Finance; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to the
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of the Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05 SEVERABILITY. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.06 SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.07 SUCCESSORS AND ASSIGNS. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Depositor, the Owner Trustee and its successors and the Owner and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Owner shall bind
the successors and assigns of the Owner.
27
SECTION 11.08 COVENANT OF THE DEPOSITOR. In the event that
(a) the Certificate Balance shall be reduced by Realized Losses and (b) any
litigation with claims in excess of $1,000,000 to which the Depositor is a party
which shall be reasonably likely to result in a material judgment against the
Depositor that the Depositor will not be able to satisfy shall be commenced by
the Owner, during the period beginning nine months following the commencement of
such litigation and continuing until such litigation is dismissed or otherwise
terminated (and, if such litigation has resulted in a final judgment against the
Depositor, such judgment has been satisfied) the Depositor shall not pay any
dividend to JDCC, or make any distribution on or in respect of its capital stock
to JDCC, or repay the principal amount of any indebtedness of the Depositor held
by JDCC, unless (i) after giving effect to such payment, distribution or
repayment, the Depositor's liquid assets shall not be less than the amount of
actual damages claimed in such litigation or (ii) the Rating Agency Condition
shall have been satisfied with respect to any such payment, distribution or
repayment. The Depositor further agrees that prior to the termination of the
Trust it shall not revoke, modify or otherwise amend any agreements with JDCC in
effect on the Closing Date in any manner that would adversely affect the rights
of the Depositor to receive from JDCC contributions of capital or payments on
demand pursuant to such agreements. The Depositor further covenants and agrees
that it will not enter into any transaction or take any action (other than any
transaction or action contemplated by this Agreement or any of the Basic
Documents) if, as a result of such transaction or action, any rating of either
the Notes or the Certificate by any of the Rating Agencies would be downgraded
or withdrawn.
SECTION 11.09 NO PETITION. The Owner Trustee on behalf of the
Trust, the Certificateholder, by accepting a Certificate, and the Indenture
Trustee and each Noteholder by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the
Depositor, or join in any institution against the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any U.S. federal or state bankruptcy or similar law in
connection with any obligations relating to the Certificate, the Notes, this
Agreement or any of the Basic Documents.
SECTION 11.10 NO RECOURSE. The Certificateholder by accepting
a Certificate acknowledges that such Certificateholder's Certificate represents
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the Servicer, the Administrator, the Owner Trustee,
the Indenture Trustee or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificate or the Basic Documents.
SECTION 11.11 HEADINGS. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.12 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
SECTION 11.13 DEPOSITOR PAYMENT OBLIGATION. The Depositor
shall be responsible for payment of the Administrator's fees under the
Administration Agreement and
28
shall reimburse the Administrator for all expenses and liabilities of the
Administrator incurred thereunder.
SECTION 11.14 ADMINISTRATOR. The Administrator is authorized
to execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust to
prepare, file or deliver pursuant to the Basic Documents. Upon request, the
Owner Trustee shall execute and deliver to the Administrator a power of attorney
appointing the Administrator its agent and attorney-in-fact to execute all such
documents, reports, filings, instruments, certificates and opinions.
SECTION 11.15 NON-TRANSFERABILITY OF THE CERTIFICATES(S).
Notwithstanding anything herein to the contrary, the Certificate(s) is (are) not
transferable and shall remain registered in the name of Xxxx Deere Receivables,
Inc.
29
IN WITNESS WHEREOF, the parties hereto have caused this
Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
BANKERS TRUST (DELAWARE) not in its
individual capacity but solely as
Owner Trustee,
By:
--------------------------------------
Name:
Title:
XXXX DEERE RECEIVABLES, INC., Depositor,
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
30
NUMBER $34,935,802.21
R-1
SEE REVERSE FOR CERTAIN DEFINITIONS
XXXX DEERE OWNER TRUST 2001
ASSET BACKED CERTIFICATE
evidencing an undivided interest in the Trust, as defined below, the property of
which includes a pool of equipment retail installment sale and loan contracts
secured by new and used agricultural, construction and forestry equipment and
sold to the Trust (as defined below) by Xxxx Deere Receivables, Inc.
(This Certificate does not represent an interest in or obligation of Xxxx Deere
Receivables, Inc., Xxxx Deere Capital Corporation, Deere & Company or any of
their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT Xxxx Deere Receivables, Inc. is the
registered owner of Thirty four million, nine hundred and thirty five thousand,
eight hundred and two DOLLARS and twenty one CENTS nonassessable, fully-paid,
undivided interest in Xxxx Deere Owner Trust 2001 (the "Trust") formed by Xxxx
Deere Receivables, Inc., a Nevada corporation (the "Seller").
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned
Trust Agreement.
Bankers Trust (Delaware) Bankers Trust (Delaware)
as Owner Trustee or as Owner Trustee
By Bankers Trust Company,
Authenticating Agent
By:
------------------------
By:
----------------------
A-1
The Trust was created pursuant to a
Trust Agreement dated as
of November 1, 2001 (the "Trust Agreement"), between the Seller and Bankers
Trust (Delaware), as owner trustee (the "Owner Trustee"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement or the Sale and Servicing Agreement
dated as of November 1, 2001 (the "Sale and Servicing Agreement"), among the
Trust, the Seller and Xxxx Deere Capital Corporation, as servicer (the
"Servicer"), as applicable.
This Certificate is the duly authorized Certificate designated
as the "Asset Backed Certificate" (herein called the "Certificate"). Also issued
under the Indenture, dated as of November 1, 2001, between the Trust and The
Bank of New York, as indenture trustee, are the Class A-1 2.19% Asset Backed
Notes, the Class A-2 2.56% Asset Backed Notes, the Class A-3 3.26% Asset Backed
Notes and the Class A-4 3.78% Asset Backed Notes (collectively, the "Notes").
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound. The property of the Trust includes a pool of retail installment sale
and loan contracts for agricultural, construction and forestry equipment (the
"Receivables"), all monies received on or after September 23, 2001 from payments
on the Receivables, security interests in the equipment financed thereby,
certain bank accounts and the proceeds thereof, proceeds from claims on certain
insurance policies and certain other rights under the Trust Agreement and the
Sale and Servicing Agreement, all right, title, and interest of the Seller in
and to the Purchase Agreement, dated as of November 1, 2001, between Xxxx Deere
Capital Corporation and the Seller and all proceeds of the foregoing. The rights
of the holders of the Certificate are subordinated to the rights of the holders
of the Notes, as set forth in the Sale and Servicing Agreement.
Under the Trust Agreement, there will be distributed on the
15th day of each month or, if such day is not a Business Day, the next Business
Day (the "Payment Date"), commencing on November 15, 2001, to the person in
whose name this Certificate is registered at the close of business on the last
day of the month (the "Record Date") immediately preceding the month in which
such Payment Date occurs the Certificateholder's undivided interest in the
amount to be distributed to the Certificateholder on such Payment Date.
The holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Class A Noteholders as described in the Sale
and Servicing Agreement and the Indenture.
It is the intention of the parties that the Trust will be
disregarded as an entity separate from the Certificateholder for U.S. federal
income tax purposes.
The Certificateholder, by its acceptance of a Certificate,
covenants and agrees that the Certificateholder will not at any time institute
against the Seller, or join in any institution against the Seller of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any U.S. federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificate, the Notes, the
Trust Agreement or any of the Basic Documents.
A-2
Distributions on this Certificate will be made as provided in
the Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Owner Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency maintained for the
purpose by the Owner Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
XXXX DEERE OWNER TRUST 2001
By BANKERS TRUST (DELAWARE)
as Owner Trustee
Dated: By:
---------------------------------------
A-3
(Reverse of Certificate}
The Certificate does not represent an obligation of, or an
interest in, the Seller, the Servicer, Deere & Company, the Indenture Trustee,
the Owner Trustee or any affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Sale and Servicing Agreement. The Certificate is
limited in right of payment to certain collections and recoveries respecting the
Receivables, all as more specifically set forth in the Sale and Servicing
Agreement. A copy of each of the Sale and Servicing Agreement and the Trust
Agreement may be examined during normal business hours at the principal office
of the Seller, and at such other places, if any, designated by the Seller, by
the Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Seller and the rights of the Certificateholder under the
Trust Agreement at any time by the Seller and the Owner Trustee with the consent
of the holders of the Notes voting as a class evidencing not less than a
majority of the outstanding Notes and the consent of the Certificateholder
(which consents shall not be unreasonably withheld). Any such consent by the
holder of this Certificate shall be conclusive and binding on the holder of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the holder of
the Certificate.
As provided in the Trust Agreement, this Certificate is
non-transferable. The initial Certificate Registrar appointed under the Trust
Agreement is Bankers Trust Company, New York, New York.
The Certificate is issuable only as a registered Certificate
without coupons in denominations of $100,000 or integral multiples of $1,000 in
excess thereof. As provided in the Trust Agreement and subject to certain
limitations therein set forth, the Certificate is exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to the
Certificateholder of all amounts required to be paid to it pursuant to the Trust
Agreement and the Sale and Servicing Agreement and the disposition of all
property held as part of the Trust. The Servicer of the Receivables may at its
A-4
option purchase the corpus of the Trust at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables and other property of
the Trust will effect early retirement of the Certificate; however, such right
of purchase is exercisable only as of the last day of any Collection Period as
of which the Pool Balance is less than or equal to 10% of the initial principal
balance of the Receivables.
A-5
EXHIBIT B
CERTIFICATE OF TRUST OF
XXXX DEERE OWNER TRUST 2001
THIS Certificate of Trust of XXXX DEERE OWNER TRUST 2001 (the
"Trust"), dated as of November 1, 2001, is being duly executed and filed by
Bankers Trust (Delaware), a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, Section 3801
ET SEQ.).
1. Name. The name of the business trust formed hereby
is XXXX DEERE OWNER TRUST 2001.
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware is Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000.
3. This Certificate of Trust will be effective
November 6, 2001.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as
trustee of the Trust.
By:
---------------------------------------
Name:
Title:
B-1
