Exhibit 4.3
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XXXX DEERE OWNER TRUST 2006
TRUST AGREEMENT
between
XXXX DEERE RECEIVABLES, INC.
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Owner Trustee
Dated as of June 15, 2006
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Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Capitalized Terms................................................1
SECTION 1.02 Other Definitional Provisions....................................2
ARTICLE II
ORGANIZATION
SECTION 2.01 Name.............................................................2
SECTION 2.02 Office...........................................................2
SECTION 2.03 Purposes and Powers..............................................2
SECTION 2.04 Appointment of Owner Trustee.....................................2
SECTION 2.05 Initial Capital Contribution of Trust Estate.....................2
SECTION 2.06 Declaration of Trust.............................................2
SECTION 2.07 Liability of the Owner...........................................2
SECTION 2.08 Title to Trust Property..........................................2
SECTION 2.09 Situs of Trust...................................................2
SECTION 2.10 Representations and Warranties of the Depositor..................2
ARTICLE III
CERTIFICATE AND TRANSFER OF INTERESTS
SECTION 3.01 Initial Ownership................................................2
SECTION 3.02 The Certificate..................................................2
SECTION 3.03 Authentication of the Certificate................................2
SECTION 3.04 Exchange of the Certificate......................................2
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Certificate.................2
SECTION 3.06 Persons Deemed Owners............................................2
SECTION 3.07 Access to Certificateholder's Name and Address...................2
SECTION 3.08 Maintenance of Office or Agency..................................2
SECTION 3.09 Appointment of Paying Agent......................................2
SECTION 3.10 Depositor as Certificateholder...................................2
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01 Prior Notice to Owner with Respect to Certain Matters............2
SECTION 4.02 Action by the Owner with Respect to Certain Matters..............2
SECTION 4.03 Action by the Owner with Respect to Bankruptcy...................2
SECTION 4.04 Restrictions on the Owner's Power................................2
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
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SECTION 5.01 Establishment of Trust Account...................................2
SECTION 5.02 Application of Trust Funds.......................................2
SECTION 5.03 Method of Payment................................................2
SECTION 5.04 No Segregation of Monies; No Interest............................2
SECTION 5.05 Accounting and Reports to the Owner, the Internal Revenue
Service and Others.......................................................2
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 General Authority................................................2
SECTION 6.02 General Duties...................................................2
SECTION 6.03 Action upon Instruction..........................................2
SECTION 6.04 No Duties Except as Specified in This Agreement or in
Instructions.............................................................2
SECTION 6.05 No Action Except Under Specified Documents or Instructions.......2
SECTION 6.06 Restrictions.....................................................2
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 Acceptance of Trusts and Duties..................................2
SECTION 7.02 Furnishing of Documents..........................................2
SECTION 7.03 Representations and Warranties...................................2
SECTION 7.04 Reliance; Advice of Counsel......................................2
SECTION 7.05 Not Acting in Individual Capacity................................2
SECTION 7.06 Owner Trustee Not Liable for Certificate or Receivables..........2
SECTION 7.07 Owner Trustee May Own Notes......................................2
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 Owner Trustee's Fees and Expenses................................2
SECTION 8.02 Indemnification..................................................2
SECTION 8.03 Payments to the Owner Trustee....................................2
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 Termination of Trust Agreement...................................2
SECTION 9.02 Dissolution upon Bankruptcy of the Depositor.....................2
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 Eligibility Requirements for Owner Trustee......................2
SECTION 10.02 Resignation or Removal of Owner Trustee.........................2
SECTION 10.03 Successor Owner Trustee.........................................2
SECTION 10.04 Merger or Consolidation of Owner Trustee........................2
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SECTION 10.05 Appointment of Co-Trustee or Separate Trustee...................2
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Supplements and Amendments......................................2
SECTION 11.02 No Legal Title to Owner Trust Estate in the Owner...............2
SECTION 11.03 Limitations on Rights of Others.................................2
SECTION 11.04 Notices.........................................................2
SECTION 11.05 Severability....................................................2
SECTION 11.06 Separate Counterparts...........................................2
SECTION 11.07 Successors and Assigns..........................................2
SECTION 11.08 Covenant of the Depositor.......................................2
SECTION 11.09 No Petition.....................................................2
SECTION 11.10 No Recourse.....................................................2
SECTION 11.11 Headings........................................................2
SECTION 11.12 GOVERNING LAW...................................................2
SECTION 11.13 Depositor Payment Obligation....................................2
SECTION 11.14 Administrator...................................................2
SECTION 11.15 Non-transferability of the Certificates(s)......................2
EXHIBIT A Form of Certificate............................................A-1
EXHIBIT B Certificate of Trust of Xxxx Deere Owner Trust 2006............B-1
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TRUST AGREEMENT, dated as of June 15, 2006, between Xxxx Deere
Receivables, Inc., a Nevada corporation, as Depositor, and U.S. Bank Trust
National Association, a national banking association, 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 June 15, 2006, 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.
"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 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.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the corporate trust office of the Owner Trustee located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attention: Corporate Trust Administration;
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).
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"Depositor" shall mean Xxxx Deere Receivables, Inc., in its capacity as
Depositor hereunder.
"Depository Agreement" means the agreement among the Trust and The
Depository Trust Company, dated on or about the Closing Date, substantially in
the form of Exhibit C to the Indenture.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Indenture" shall mean the Indenture, dated as of June 15, 2006,
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.
"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 U.S. Bank Trust National Association, a
national banking association, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to Section 3.09 and shall initially be U.S. Bank Trust National
Association.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
June 15, 2006, 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.
"Representatives" means Deutsche Bank Securities Inc. and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated in their capacity as the
representatives under the Underwriting Agreement.
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"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 June 15, 2006, 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.
"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.
"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.
"Underwriting Agreement" means the Underwriting Agreement dated June
13, 2006 among JDCC, the Depositor and the Representatives set forth on the
signature pages thereto.
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 in the United States. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles in the United States, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
(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."
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(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 2006" 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 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 and to sell the Notes
upon the written order of the Depositor, and pursuant to this Agreement to
issue a Certificate with a $12,040,248 aggregate principal amount to the
Depositor upon the written order of the Depositor;
(ii) with the proceeds of the sale of the 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 the Representatives 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;
(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.
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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. 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 statutory trust under the Trust
Statute and that this Agreement constitute the governing instrument of such
statutory 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 beneficial
owner or member, then the parties agree, for U.S. federal income tax purposes,
to treat the Trust as a partnership and to 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 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. 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
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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, the State of Illinois 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.
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 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
6
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 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
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. U.S. Bank Trust National Association 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.
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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 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 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 the Corporate Trust Office as
its 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.
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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 U.S. Bank
Trust National Association, and any co-paying agent chosen by the Paying Agent
and acceptable to the Owner Trustee. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Owner Trustee and the
Depositor. In the event that U.S. Bank Trust National Association 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.
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:
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(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 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.
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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.
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.
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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, 2006, 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 beneficial owner or member as
determined for such purposes, deliver to each beneficial owner or 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.
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.
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(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 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
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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 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 in good faith 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 the 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
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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;
(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; and
(viii) notwithstanding any Person's right to instruct the Owner
Trustee, except as required by law or regulation, neither the Owner Trustee
nor any agent, employee, director or officer of the Owner Trustee shall have
any obligation to execute any certificates or other documents required
pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or the rules and regulations
promulgated thereunder, and the refusal to comply with any such instructions
shall not constitute a default or breach under any Basic Document.
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.
15
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 association duly organized and validly existing in
good standing under the laws of the United States of America and 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.
SECTION 7.05 Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created U.S. Bank Trust
National Association 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
16
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
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 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.
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,
17
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 removal 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 and terminate in accordance with Section
3808 (d) and (e) of the Trust Act (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 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
18
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 Trust Statute, 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 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.
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 Person satisfying the provisions of Section
3807(a) of the Trust
19
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 Person 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 Person 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. The Owner Trustee shall provide to the Seller in
writing and in form and substance reasonably satisfactory to the Seller, all
information reasonably requested by the Seller in order to comply with its
reporting obligation under the Exchange Act with respect to the resignation of
the 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 at any time the Owner Trustee shall fail to comply with any of its
obligations under Section 10.02 or Section 10.04 of this Agreement or Section
4.16 of the Sale and Servicing Agreement during the period that the Seller is
required to file Exchange Act Reports with respect to the Trust and such failure
is not remedied within the lesser of ten calendar days and the period of time in
which the related Exchange Act Report is required to be filed (without taking
into account any extensions), then the Seller may remove the Owner Trustee. If
the Administrator or Seller shall remove the Owner Trustee under the authority
of the two immediately preceding sentences, the Administrator shall promptly
appoint a successor Owner Trustee, by written instrument, in triplicate, one
copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed, one copy to the successor Owner Trustee, and one copy to the Seller,
together with the basis for removal and shall pay 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
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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.
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 deliver to the Seller in writing and
in form and substance reasonably satisfactory to the Seller, all information
reasonably requested by the Seller in order to comply with its reporting
obligation under the Exchange Act with respect to the successor Owner Trustee,
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 and the Sale and
Servicing 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 Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person 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 Person 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 and that the Owner Trustee will provide the Seller in
writing and in form and substance reasonably satisfactory to the Seller, all
information reasonably requested by the Seller in order to comply with its
reporting obligation under the Exchange Act with respect to the successor Owner
Trustee.
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
21
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 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
22
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, 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 adversely
affect in any material respect the interests of any Noteholder or the
Certificateholder, provided further that 10 days' prior written notice of any
such amendment be given to each Rating Agency and, if a Rating Agency notifies
the Owner Trustee that such amendment will result in a downgrading or withdrawal
of the then current rating of any class of the Notes, such amendment shall
become effective with the consent of the Holders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes; provided further that
any solicitation of such consent shall disclose the downgrading or withdrawal
that would result from such amendment.
This Agreement may also be amended 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.
23
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, 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., 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, Assistant Treasurer; 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 or the
Certificate 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
24
remaining provisions hereof or thereof, 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.
SECTION 11.08 Covenant of the Depositor. In the event that 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 (when the Owner is not the Depositor), 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
25
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 GOVERNED BY AND
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 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 the agent and attorney-in-fact of the Trust 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.
26
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.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Owner Trustee,
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXX DEERE RECEIVABLES, INC., as
Depositor,
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary
EXHIBIT A
NUMBER $12,040,248
R-1
SEE REVERSE FOR CERTAIN DEFINITIONS
XXXX DEERE OWNER TRUST 2006
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 twelve million forty thousand two hundred forty eight dollars of
nonassessable, fully-paid, undivided beneficial interest in Xxxx Deere Owner
Trust 2006 (the "Trust") formed by Xxxx Deere Receivables, Inc., a Nevada
corporation (the "Seller").
THIS CERTIFICATE IS NOT TRANSFERABLE.
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
U.S. Bank Trust National Association,
as Owner Trustee
By:
----------------------
A-1
The Trust was created pursuant to a Trust Agreement dated as of June
15, 2006 (the "Trust Agreement"), between the Seller and U.S. Bank Trust
National Association, 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 June 15, 2006 (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 June 15, 2006, between the Trust and The Bank of New
York, as Indenture Trustee, are the Class A-1 5.36417% Asset Backed Notes, the
Class A-2 5.41% Asset Backed Notes, the Class A-3 5.38% Asset Backed Notes and
the Class A-4 5.39% 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 May 28, 2006 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 June 15, 2006, 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 July 17, 2006, 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 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.
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 2006
By U.S. BANK TRUST NATIONAL
ASSOCIATION, 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 U.S. Bank Trust National Association.
The Certificate is issuable only as a registered Certificate without
coupons in minimum denominations of at least $100,000. 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 2006
THIS Certificate of Trust of XXXX DEERE OWNER TRUST 2006 (the "Trust"),
dated as of June 15, 2006, is being duly executed and filed by U.S. Bank Trust
National Association, a Delaware banking corporation, as trustee, to form a
statutory trust under the Delaware Statutory trust Act (12 Del. Code, Section
3801 et seq.).
1. Name. The name of the statutory trust formed hereby is XXXX DEERE
OWNER TRUST 2006.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is U.S. Bank Trust National Association, 000
Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. This Certificate of Trust will be effective June 15, 2006.
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.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as trustee of the Trust.
By:
-------------------------------------
Name:
Title:
B-1
