JOHN DEERE OWNER TRUST 2009 TRUST AGREEMENT between JOHN DEERE RECEIVABLES, INC. Depositor and BNY MELLON TRUST OF DELAWARE Owner Trustee Dated as of June 1, 2009
Exhibit 99.1
EXECUTION
VERSION
XXXX
DEERE OWNER TRUST 2009
between
XXXX
DEERE RECEIVABLES, INC.
Depositor
and
BNY
MELLON TRUST OF DELAWARE
Owner
Trustee
Dated as
of June 1, 2009
Table of
Contents
Page
ARTICLE
I
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|
DEFINITIONS
|
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SECTION
1.01 Capitalized Terms
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1
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SECTION
1.02 Other Definitional Provisions
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3
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ARTICLE
II
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ORGANIZATION
|
|
SECTION
2.01 Name
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4
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SECTION
2.02 Office
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4
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SECTION
2.03 Purposes and Powers
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4
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SECTION
2.04 Appointment of Owner Trustee
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5
|
SECTION
2.05 Initial Capital Contribution of Trust Estate
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5
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SECTION
2.06 Declaration of Trust
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5
|
SECTION
2.07 Liability of the Owner
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5
|
SECTION
2.08 Title to Trust Property
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6
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SECTION
2.09 Situs of Trust
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6
|
SECTION
2.10 Representations and Warranties of the Depositor
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6
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ARTICLE
III
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CERTIFICATE
AND TRANSFER OF INTERESTS
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|
SECTION
3.01 Initial Ownership
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7
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SECTION
3.02 The Certificate
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7
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SECTION
3.03 Authentication of the Certificate
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7
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SECTION
3.04 Exchange of the Certificate
|
8
|
SECTION
3.05 Mutilated, Destroyed, Lost or Stolen
Certificate
|
8
|
SECTION
3.06 Persons Deemed Owners
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9
|
SECTION
3.07 Access to Certificateholder’s Name and Address
|
9
|
SECTION
3.08 Maintenance of Office or Agency
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9
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SECTION
3.09 Appointment of Paying Agent
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9
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SECTION
3.10 Depositor as Certificateholder
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9
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ARTICLE
IV
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ACTIONS
BY OWNER TRUSTEE
|
|
SECTION
4.01 Prior Notice to Owner with Respect to Certain
Matters
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9
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SECTION
4.02 Action by the Owner with Respect to Certain
Matters
|
10
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SECTION
4.03 Action by the Owner with Respect to Bankruptcy
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10
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SECTION
4.04 Restrictions on the Owner’s Power
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10
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ARTICLE
V
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APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
|
|
i
SECTION
5.01 Establishment of Trust Account
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11
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SECTION
5.02 Application of Trust Funds
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11
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SECTION
5.03 Method of Payment
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11
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SECTION
5.04 No Segregation of Monies; No Interest
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11
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SECTION
5.05 Accounting and Reports to the Owner, the Internal Revenue
Service and Others
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12
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ARTICLE
VI
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AUTHORITY
AND DUTIES OF OWNER TRUSTEE
|
|
SECTION
6.01 General Authority
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13
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SECTION
6.02 General Duties
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13
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SECTION
6.03 Action upon Instruction
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13
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SECTION
6.04 No Duties Except as Specified in This Agreement or in
Instructions
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13
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SECTION
6.05 No Action Except Under Specified Documents or
Instructions
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14
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SECTION
6.06 Restrictions
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14
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ARTICLE
VII
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|
CONCERNING
THE OWNER TRUSTEE
|
|
SECTION
7.01 Acceptance of Trusts and Duties
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14
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SECTION
7.02 Furnishing of Documents
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16
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SECTION
7.03 Representations and Warranties
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16
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SECTION
7.04 Reliance; Advice of Counsel
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16
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SECTION
7.05 Not Acting in Individual Capacity
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17
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SECTION
7.06 Owner Trustee Not Liable for Certificate or
Receivables
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17
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SECTION
7.07 Owner Trustee May Own Notes
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17
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ARTICLE
VIII
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COMPENSATION
OF OWNER TRUSTEE
|
|
SECTION
8.01 Owner Trustee’s Fees and Expenses
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17
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SECTION
8.02 Indemnification
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18
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SECTION
8.03 Payments to the Owner Trustee
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18
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ARTICLE
IX
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TERMINATION
OF TRUST AGREEMENT
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SECTION
9.01 Termination of Trust Agreement
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18
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SECTION
9.02 Dissolution upon Bankruptcy of the Depositor
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19
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ARTICLE
X
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SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
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SECTION
10.01 Eligibility Requirements for Owner Trustee
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20
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SECTION
10.02 Resignation or Removal of Owner Trustee
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20
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SECTION
10.03 Successor Owner Trustee
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21
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SECTION
10.04 Merger or Consolidation of Owner Trustee
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21
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ii
SECTION
10.05 Appointment of Co-Trustee or Separate Trustee
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22
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ARTICLE
XI
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||
MISCELLANEOUS
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SECTION
11.01 Supplements and Amendments
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23
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SECTION
11.02 No Legal Title to Owner Trust Estate in the
Owner
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24
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SECTION
11.03 Limitations on Rights of Others
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24
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SECTION
11.04 Notices
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24
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SECTION
11.05 Severability
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25
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SECTION
11.06 Separate Counterparts
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25
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SECTION
11.07 Successors and Assigns
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25
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SECTION
11.08 Covenant of the Depositor
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25
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SECTION
11.09 No Petition
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25
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SECTION
11.10 No Recourse
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26
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SECTION
11.11 Headings
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26
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SECTION
11.12 GOVERNING LAW
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26
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SECTION
11.13 Depositor Payment Obligation
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26
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SECTION
11.14 Administrator
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26
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SECTION
11.15 Non-transferability of the
Certificates(s)
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26
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EXHIBIT A |
Form
of Certificate
|
A-1
|
EXHIBIT B |
Certificate
of Trust of Xxxx Deere Owner Trust 2009
|
B-1
|
iii
TRUST
AGREEMENT, dated as of June 1, 2009, between Xxxx Deere Receivables, Inc., a
Nevada corporation, as Depositor, and BNY Mellon Trust of Delaware, a Delaware
banking corporation as Owner Trustee.
ARTICLE
I
Definitions
SECTION
1.01 Capitalized
Terms. For all purposes of this Agreement, the following terms
shall have the meanings set forth below:
“Administration
Agreement” means the Administration Agreement dated as of June 1, 2009, 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 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, Attention:
Xxxxxxxx X. Xxxxx, Vice President; 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).
1
“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 1, 2009, between the Trust and the
Indenture Trustee, as the same may be amended and supplemented from time to
time.
“Indenture
Trustee” shall mean U.S. Bank National Association, 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 BNY Mellon Trust of Delaware, a Delaware banking
corporation, 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 The Bank of New York Mellon, a
New York banking
corporation.
“Purchase
Agreement” shall mean the Purchase Agreement, dated as of June 1, 2009, 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 Banc of America Securities LLC and Citigroup Global Markets Inc. in their
capacity as the representatives under the Underwriting Agreement.
2
“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 1,
2009, 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 2, 2009 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.”
3
(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 2009” 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 $28,093,218 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.
4
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
5
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. The Bank of
New York Mellon 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.
7
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.
8
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 The Bank of New York
Mellon, 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 The Bank of New York Mellon 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:
9
(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.
10
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 Paying Agent 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.
11
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,
2009, 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.
12
(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
13
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
14
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.
(ix) in
no event shall the Owner Trustee be liable for any damages in the nature of
special, indirect or consequential damages, however styled, including, without
limitation, lost profits, or for any losses due to forces beyond the control of
the Owner Trustee, including, without limitation, strikes, work stoppages, acts
of war or terrorism, insurrection, revolution, nuclear or natural catastrophes
or acts of God and interruptions,
15
loss or
malfunctions of utilities, communications or computer (software and hardware)
services provided by unaffiliated third parties to the Owner
Trustee.
SECTION
7.02 Furnishing of
Documents. The Owner Trustee shall furnish to the Owner
promptly upon receipt of a written reasonable request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee and in its
possession under the Basic Documents.
SECTION
7.03 Representations and
Warranties. The Owner Trustee hereby represents and warrants
to the Depositor, for the benefit of the Owner, that:
(i) it
is a banking corporation duly organized and validly existing in good standing
under the laws of the State of Delaware 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
16
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 BNY Mellon Trust of Delaware
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION
7.06 Owner
Trustee Not Liable for Certificate or Receivables. The
recitals contained herein and in the Certificate (other than the signature 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,
17
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, 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)
18
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 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.
19
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 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
20
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 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
21
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 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
22
provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument
shall be filed with the Owner Trustee and a copy thereof given to the
Administrator.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE
XI
Miscellaneous
SECTION
11.01 Supplements and
Amendments. This Agreement may be amended by the Depositor and
the Owner Trustee, 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.
23
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.
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 with a copy to The Bank of New York
Mellon, 000 Xxxxxxx Xx., 0X, Xxx Xxxx, XX 00000, Attention: Xxxxxxx
Xxxxxx; 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
24
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
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
25
proceedings
under any U.S. federal or State bankruptcy or similar law in connection with any
obligations relating to the Certificate, the Notes, this Agreement or any of the
Basic Documents.
SECTION
11.10 No
Recourse. The Certificateholder by accepting a Certificate
acknowledges that such Certificateholder’s Certificate represents beneficial
interests in the Trust only and do not represent interests in or obligations of
the Seller, the Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificate or the Basic Documents.
SECTION
11.11 Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION
11.12 GOVERNING
LAW. THIS AGREEMENT SHALL BE 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.
BNY
MELLON TRUST OF DELAWARE
as
Owner Trustee,
|
||||
By: |
/s/
Xxxxxxxx X. Xxxxx
|
|||
Name: | Xxxxxxxx X. Xxxxx | |||
Title: | Vice President | |||
XXXX
DEERE RECEIVABLES, INC.,
as Depositor,
|
||||
By: |
/s/
Xxxx X. Xxxxxxx
|
|||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Assistant Secretary | |||
Acknowledged
and Agreed as of the day
and
year first above written,
|
||||
THE
BANK OF NEW YORK MELLON,
as
Paying Agent and Certificate Registrar,
|
||||
By:
|
/s/
Xxxxxxx Xxxxxx
|
|||
Name: |
Xxxxxxx
Xxxxxx
|
|||
Title: |
Assistant
Treasurer
|
EXHIBIT
A
NUMBER
R-1
|
$28,093,218
|
SEE
REVERSE FOR CERTAIN DEFINITIONS
XXXX
DEERE OWNER TRUST 2009
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 twenty
eight million ninety three thousand two hundred and eighteen dollars of
nonassessable, fully-paid, undivided beneficial interest in Xxxx Deere Owner
Trust 2009 (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.
BNY
Mellon Trust of Delaware,
as Owner
Trustee
By:______________________________________
X-
0
The Trust
was created pursuant to a Trust Agreement dated as of June 1, 2009 (the “Trust
Agreement”), between the Depositor and BNY Mellon Trust of Delaware as owner
trustee (the “Owner Trustee”), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement or the Sale and Servicing Agreement dated as of June 1, 2009
(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 1, 2009, between the Trust and U.S. Bank National
Association, as Indenture Trustee, are the Class A-1 1.13155% Asset Backed
Notes, the Class A-2 1.96% Asset Backed Notes, the Class A-3 2.59% Asset Backed
Notes and the Class A-4 3.96% 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 3, 2009 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 1, 2009, 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 15, 2009, 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 2009
|
|||
By
BNY MELLON TRUST OF DELAWARE
as Owner Trustee
|
|||
Dated:
|
By:
|
||
X-
0
(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 The Bank of
New York Mellon.
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
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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.
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EXHIBIT
B
CERTIFICATE
OF TRUST OF
XXXX
DEERE OWNER TRUST 2009
THIS
Certificate of Trust of XXXX DEERE OWNER TRUST 2009 (the “Trust”) is
being duly executed and filed by BNY Mellon Trust of Delaware, a Delaware
banking corporation, as trustee, to form a statutory trust under the Delaware
Statutory Trust Act (12 Del. Code, Section 3801 et seq.) (the
“Act”).
1. Name. The
name of the statutory trust formed hereby is XXXX DEERE OWNER TRUST
2009.
2. Delaware
Trustee. The name and business address of the trustee of the Trust in
the State of Delaware is BNY Mellon Trust of Delaware, Xxxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
3. This
Certificate of Trust will be effective upon filing.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in
accordance with Section 3811(a)(1) of the Act.
BNY
MELLON TRUST OF DELAWARE
not
in its individual capacity but solely as trustee of the
Trust.
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Name: | ||||
Title: | ||||
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