EXHIBIT 4.2
▇▇▇▇ DEERE OWNER TRUST 1999-A
TRUST AGREEMENT
between
▇▇▇▇ DEERE RECEIVABLES, INC.
and
BANKERS TRUST (DELAWARE)
Owner Trustee
Dated as of May 15, 1999
Table of Contents Page
ARTICLE I Definitions
SECTION 1.01. Capitalized Terms 1
SECTION 1.02. Other Definitional Provisions 3
ARTICLE II Organization
SECTION 2.01. Name 4
SECTION 2.02. Office 4
SECTION 2.03. Purposes and Powers 3
SECTION 2.04. Appointment of Owner Trustee 5
SECTION 2.05. Initial Capital Contribution of Trust
Estate 5
SECTION 2.06. Declaration of Trust 5
SECTION 2.07. Liability of the Owner 6
SECTION 2.08. Title to Trust Property 6
SECTION 2.09. Situs of Trust 6
SECTION 2.10. Representations and Warranties of the
Depositor 6
ARTICLE III Certificate and Transfer of Interests
SECTION 3.01. Initial Ownership 7
SECTION 3.02. The Certificate 7
SECTION 3.03. Authentication of the Certificate 8
SECTION 3.04. Exchange of the Certificate 8
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen
Certificate 8
SECTION 3.06. Persons Deemed Owners 9
SECTION 3.07. Access to Certificateholder's Name
and Address 9
SECTION 3.08. Maintenance of Office or Agency 9
SECTION 3.09. Appointment of Paying Agent 9
SECTION 3.10. Depositor as Certificateholder 10
ARTICLE IV Actions by Owner Trustee
SECTION 4.01. Prior Notice to Owner with Respect
to Certain Matters 10
SECTION 4.02. Action by the Owner with Respect
to Certain Matters 11
SECTION 4.03. Action by the Owner with Respect
to Bankruptcy 11
SECTION 4.04. Restrictions on the Owner's Power 11
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ARTICLE V Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account 11
SECTION 5.02. Application of Trust Funds 12
SECTION 5.03. Method of Payment 12
SECTION 5.04. No Segregation of Monies; No Interest 12
SECTION 5.05. Accounting and Reports to the Noteholders,
the Owner, the Internal Revenue Service
and Others 12
ARTICLE VI Authority and Duties of Owner Trustee
SECTION 6.01. General Authority 12
SECTION 6.02. General Duties 13
SECTION 6.03. Action upon Instruction 13
SECTION 6.04. No Duties Except as Specified in This
Agreement or in Instructions 14
SECTION 6.05. No Action Except Under Specified
Documents or Instructions 14
SECTION 6.06. Restrictions 14
ARTICLE VII Concerning the Owner Trustee
SECTION 7.01. Acceptance of Trusts and Duties 15
SECTION 7.02. Furnishing of Documents 16
SECTION 7.03. Representations and Warranties 16
SECTION 7.04. Reliance; Advice of Counsel 16
SECTION 7.05. Not Acting in Individual Capacity 17
SECTION 7.06. Owner Trustee Not Liable for Certificate
or Receivables 17
SECTION 7.07. Owner Trustee May Own Notes 17
ARTICLE VIII Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses 18
SECTION 8.02. Indemnification 18
SECTION 8.03. Payments to the Owner Trustee 18
ARTICLE IX Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement 18
SECTION 9.02. Dissolution upon Bankruptcy of the
Depositor 19
ARTICLE X Successor Owner Trustees and Additional
Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner
Trustee 20
SECTION 10.02. Resignation or Removal of Owner Trustee 20
SECTION 10.03. Successor Owner Trustee 21
SECTION 10.04. Merger or Consolidation of Owner Trustee 21
SECTION 10.05. Appointment of Co-Trustee or Separate
Trustee 21
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ARTICLE XI Miscellaneous
SECTION 11.01. Supplements and Amendments 23
SECTION 11.02. No Legal Title to Owner Trust Estate
in the Owner 24
SECTION 11.03. Limitations on Rights of Others 24
SECTION 11.04. Notices 24
SECTION 11.05. Severability 24
SECTION 11.06. Separate Counterparts 25
SECTION 11.07. Successors and Assigns 25
SECTION 11.08. Covenant of the Depositor 25
SECTION 11.09. No Petition 25
SECTION 11.10. No Recourse 25
SECTION 11.11. Headings 26
SECTION 11.12. GOVERNING LAW 26
SECTION 11.13. Depositor Payment Obligation 26
SECTION 11.14. Administrator 26
EXHIBIT A Asset Backed Certificate 28
EXHIBIT B Certificate of Trust of ▇▇▇▇ Deere
Owner Trust 1999-A 33
Page iii
TRUST AGREEMENT, dated as of May 15, 1999, between ▇▇▇▇
Deere Receivables, Inc., a Nevada corporation, as Depositor,
and Bankers Trust (Delaware), a Delaware banking corporation,
as Owner Trustee.
ARTICLE I
Definitions
SECTION 1.01. Capitalized Terms. For all purposes of
this Agreement, the following terms shall have the meanings
set forth below:
"Administration Agreement" means the Administration
Agreement dated as of May 15, 1999, among the Administrator,
the Trust and the Indenture Trustee, as the same may be
amended, modified or supplemented from time to time.
"Administrator" means ▇▇▇▇ 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.
"BofA" shall have the meaning assigned to such term in
Section 2.03(i).
"Basic Documents" shall mean the Purchase Agreement, the
Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Depository Agreement and the
other documents and certificates delivered in connection
therewith.
"Benefit Plan" shall have the meaning assigned to such
term in Section 11.13.
"Business Trust Statute" shall mean Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as the same
may be amended from time to time.
"Certificate" shall mean a certificate evidencing the
beneficial interest of the Owner in the Trust, substantially
in the form attached hereto as Exhibit A.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of
Trust in the form of Exhibit B to be filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall
mean the register mentioned and the registrar appointed
pursuant to Section 3.04.
"Certificateholder" shall mean the Depositor.
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"Chase" shall have the meaning assigned to such term in
Section 2.03(i).
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Corporate Trust Office" shall mean, with respect to the
Owner Trustee, the principal corporate trust office of the
Owner Trustee located at E.A. Delle Donne Corporate Center,
▇▇▇▇▇▇▇▇▇▇ Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to Bankers Trust Company, Four
Albany Street, 10th Floor, New York, New York 10006, Attention:
Corporate Trust & Agency Group; or at such other address as
the Owner Trustee may designate by notice to the Owners and
the Depositor, or the principal corporate trust office of any
successor Owner Trustee (the address of which the successor
owner trustee will notify the Owners and the Depositor).
"CSFB" shall have the meaning assigned to such term in
Section 2.03(i).
"Depositor" shall mean ▇▇▇▇ Deere Receivables, Inc., in
its capacity as Depositor hereunder.
"Depository Agreement" means the agreement among the
Trust, the Indenture Trustee and The Depository Trust Company,
dated as of the Closing Date, substantially in the form of
Exhibit C to the Indenture.
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Goldman" shall have the meaning assigned to such term in
Section 2.03(i).
"Indenture" shall mean the Indenture, dated as of May 15,
1999, between the Trust and the Indenture Trustee, as the same
may be amended and supplemented from time to time.
"Indenture Trustee" shall mean The Bank of New York, not
in its individual capacity but solely as Indenture Trustee
under the Indenture.
"JDCC" shall mean ▇▇▇▇ Deere Capital Corporation, a
Delaware corporation.
"▇▇▇▇▇▇" shall have the meaning assigned to such term in
section 2.03(i).
"Owner" shall mean the Certificateholder.
"Owner Trust Estate" shall mean all right, title and
interest of the Trust in and to the property and rights
assigned to the Trust pursuant to Article II of the Sale and
Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and the Certificate Distribution Account
and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust
pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
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"Owner Trustee" shall mean Bankers Trust (Delaware), a
Delaware banking corporation, not in its individual capacity
but solely as owner trustee under this Agreement, and any
successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.09 and shall initially
be Bankers Trust Company.
"Purchase Agreement" shall mean the Purchase Agreement,
date May 15, 1999, between JDCC and the Depositor, as the same
may be amended, modified or supplemented from time to time.
"Record Date" shall mean, with respect to any Payment
Date, the close of business on the last day of the calendar
month immediately preceding the calendar month in which the
Payment Date occurs.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement among the Trust, the Depositor, as seller,
and JDCC, as servicer, dated as of May 15, 1999, as the same
may be amended, modified or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of
the State of Delaware.
"SSB" shall have the meaning assigned to such term in
Section 2.03(i).
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code.
References herein to specific provisions of proposed or
temporary regulations shall include analogous provisions of
final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this
Agreement.
"Underwriters" shall have the meaning assigned to such
term in Section 2.03(i).
SECTION 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined have the meanings assigned to them in the Sale and
Servicing Agreement or, if not defined therein, in the
Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement or in any such
certificate or other document, and accounting terms partly
defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting
principles. To the extent that the
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definitions of accounting terms in this Agreement or in any
such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in
any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and
words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and
neuter genders of such terms.
ARTICLE II
Organization
SECTION 2.01. Name. The Trust created hereby shall be
known as "▇▇▇▇ Deere Owner Trust 1999-A" 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 ▇▇▇ and be sued.
SECTION 2.02. Office. The office of the Trust shall be
in care of the Owner Trustee at the Corporate Trust Office or
at such other address in Delaware as the Owner Trustee may
designate by written notice to the Owners and the Depositor.
SECTION 2.03. Purposes and Powers. The purpose of the
Trust is to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture
and the Certificate pursuant to this Agreement, and to sell
$761,425,000 aggregate principal amount of the Class A Notes
to Credit Suisse First Boston ("CSFB"), Banc of America
Securities L.L.C. ("BofA"), Chase Securities Inc. ("Chase"),
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman"), ▇.▇. ▇▇▇▇▇▇ Securities Inc.
("▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SSB" and, together
with CSFB, BofA, Chase, Goldman and ▇▇▇▇▇▇, the
"Underwriters") upon the written order of the Depositor,
$32,230,000 aggregate principal amount of the Class B Notes to
the Depositor upon the written order of the Depositor, and
$12,086,832 aggregate principal amount of the Certificate to
the Depositor upon the written order of the Depositor;
(ii) with the proceeds of the sale of the Class A
Notes and the issuance of the Class B Notes and the
Certificate, to pay the Depositor the amounts owed pursuant to
Section 2.01 of the Sale and Servicing Agreement, by directing
CSFB 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;
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(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.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.04. Appointment of Owner Trustee. The
Depositor hereby appoints the Owner Trustee as trustee of the
Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein.
SECTION 2.05. Initial Capital Contribution of Trust
Estate. The Depositor hereby sells, assigns, transfers,
conveys and sets over to the Owner Trustee, as of the date
hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the
date hereof, of the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.06. Declaration of Trust.
(a) The Owner Trustee hereby declares that it will hold
the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Owner, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing
instrument of business trust. It is the intention of the
parties that the Trust will be disregarded as an entity
separate from the Owner for U.S. federal income tax purposes
as permitted by Treasury Regulation Section 301.7701-3(c). In
the event, however, that during its term the Trust has more
than one owner then the parties agree that, for U.S. federal
income tax purposes, they will treat the Trust as a
partnership and take no action inconsistent with the treatment
of the Trust as a partnership. In such event, the parties
agree that, unless otherwise required by appropriate tax
authorities, the Trust will elect to be treated as a
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partnership and will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and
in the Business Trust Statute with respect to accomplishing
the purposes of the Trust. In no event shall the Trust elect
to be treated as an association taxable as a corporation.
(b) The Depositor shall make an election on Internal
Revenue Service Form 8832, Entity Classification Election, for
the Trust to be disregarded as a separate entity from the
Owner.
SECTION 2.07. Liability of the Owner.
(a) The Depositor shall be liable directly to and will
indemnify the injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including Expenses, to
the extent not paid out of the Owner Trust Estate) to the
extent that the Depositor would be liable if the Trust were a
partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Depositor were a general partner;
provided, however, that the Depositor shall not be liable for
any losses incurred by a Certificateholder in the capacity of
an investor in the Certificate or a Noteholder in the capacity
of an investor in the Notes. In addition, any third party
creditors of the Trust (other than in connection with the
obligations described in the preceding proviso for which the
Depositor shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The obligations of the
Depositor under this paragraph shall be evidenced by the
Certificate described in Section 3.10.
(b) The Owner, other than to the extent set forth in
paragraph (a), shall not have any personal liability for any
liability or obligation of the Trust.
SECTION 2.08. Title to Trust Property. Legal title to
all the Owner Trust Estate shall be vested at all times in the
Trust as a separate legal entity except where applicable law
in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located
in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the
State of Delaware or the State of New York. The Trust shall
not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or
without the State of Delaware. Payments will be received by
the Trust only in Delaware or New York, and payments will be
made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in
Delaware.
SECTION 2.10. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to
the Owner Trustee that:
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(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 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
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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 or upon
the written order of the Depositor, signed by its Chairman of
the Board, its President, any Vice President, its Treasurer or
any Assistant Treasurer, without further corporate action by
the Depositor, in authorized denominations. The Certificate
shall not entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit
A, executed by the Owner Trustee or the Owner Trustee's
authentication agent, by manual signature; such authentication
shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder.
The Certificate shall be dated the date of its authentication.
SECTION 3.04. Exchange of the Certificate. The
Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Owner Trustee shall
provide for the registration of the Certificate and of
exchanges of the Certificate as herein provided. Bankers
Trust Company shall be the initial Certificate Registrar.
At the option of the Certificateholder, the Certificate
may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender of the
Certificate to be exchanged at the office or agency maintained
pursuant to Section 3.08.
Every Certificate presented or surrendered for exchange
shall be accompanied by a written instrument of exchange in
form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Certificateholder or its
attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer or 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
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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. Prior to due
presentation of a Certificate for registration of transfer,
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 in the Borough of Manhattan, The City
of New York, an office or offices or agency or agencies where
the Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificate and the Basic
Documents may be served. The Owner Trustee initially
designates Bankers Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust & Agency
Group, as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice
to the Depositor and to the Certificateholder of any change in
the location of the Certificate Register or any such office or
agency.
SECTION 3.09. Appointment of Paying Agent. The Paying
Agent shall make distributions to the Certificateholder from
the Certificate Distribution Account pursuant to Section 5.02
and shall report the amounts of such distributions to the
Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution
Account for the purpose of making the distributions referred
to above. The Owner Trustee may revoke such power and remove
the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform
its obligations under this Agreement in any material respect.
The Paying Agent shall initially be Bankers Trust Company, and
any co-paying agent chosen by Bankers Trust Company, and
acceptable to the Owner Trustee. Bankers Trust Company shall
be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee and the Depositor. In the event
that Bankers Trust Company shall no longer be the Paying
Agent, the Owner Trustee shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the
Certificateholder
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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:
(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
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(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, 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
delivery to the Owner Trustee by the Owner of a certificate
certifying that the Owner reasonably believes that the Trust
is insolvent.
SECTION 4.04. Restrictions on the Owner's Power. The
Owner shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the Basic Documents or would be
contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Establishment of Trust Account. The Owner
Trustee, for the benefit of the Certificateholder, shall
establish and maintain in the name of the Trust an Eligible
Deposit Account (the "Certificate Distribution Account"),
bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the
Certificateholder.
The Owner Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the
Certificate Distribution Account and in all proceeds thereof.
Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the
Certificateholder. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Deposit Account,
the Owner Trustee (or the Depositor on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then
held by the Owner Trustee or an affiliate thereof) shall
within 10 Business Days following notification of such
occurrence (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a
new Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
Page 11
SECTION 5.02. Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee will
distribute to the Certificateholder, amounts deposited in the
Certificate Distribution Account pursuant to Sections 5.04 and
5.05 of the Sale and Servicing Agreement on such Payment Date.
(b) On each Payment Date, the Owner Trustee shall send
to the Certificateholder the statement provided to the Owner
Trustee by the Servicer pursuant to Section 5.06(a) of the
Sale and Servicing Agreement on such Payment Date.
SECTION 5.03. Method of Payment. Subject to Section
9.01(c), distributions required to be made to the
Certificateholder on any Payment Date shall be made to the
Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to
the account of the Certificateholder at a bank or other entity
having appropriate facilities therefor, if the
Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five
Business Days prior to such Payment Date or, if not, by check
mailed to the Certificateholder at the address of the
Certificateholder appearing in the Certificate Register.
SECTION 5.04. No Segregation of Monies; No Interest.
Subject to Sections 5.01 and 5.02, monies received by the
Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law or the Sale and Servicing
Agreement and may be deposited under such general conditions
as may be prescribed by law, and the Owner Trustee shall not
be liable for any interest thereon.
SECTION 5.05. Accounting and Reports to the Noteholders,
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,
1999, 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, and (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 federal income tax purposes.
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
Page 12
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.
(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.
Page 13
(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 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.
Page 14
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 by a responsible officer of the Owner
Trustee;
(ii) the Owner Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
accordance with the instructions of the Administrator, the
Depositor, the Indenture Trustee or any Owner;
(iii) no provision of this Agreement or any Basic
Document shall require the Owner Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under
any Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured or provided to it;
(iv) under no circumstances shall the Owner Trustee
be liable for indebtedness evidenced by or arising under any
of the Basic Documents, including the principal of and
interest on the Notes;
(v) the Owner Trustee shall not be responsible for
or in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity
of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Certificate, and the
Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to the Owner, other
than as expressly provided for herein and in the Basic
Documents;
(vi) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Indenture
Trustee or the Servicer under any of the Basic Documents or
otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement; and
Page 15
(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
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.
SECTION 7.02. Furnishing of Documents. The Owner Trustee
shall furnish to the Owner promptly upon receipt of a written
reasonable request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner
Trustee and in its possession under the Basic Documents.
SECTION 7.03. Representations and Warranties. The Owner
Trustee hereby represents and warrants to the Depositor, for
the benefit of the Owner, that:
(i) it is a banking corporation duly organized and
validly existing in good standing under the laws of the State
of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement;
(ii) it has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement,
and this Agreement will be executed and delivered by one of
its officers who is duly authorized to execute and deliver
this Agreement on its behalf; and
(iii) neither the execution nor the delivery by it
of this Agreement, nor the consummation by it of the
transactions contemplated hereby nor compliance by it with any
of the terms or provisions hereof will contravene any federal
or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee, or constitute
any default under its charter documents or by-laws.
SECTION 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report,
opinion, bond, or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body
of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter
the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in
good faith in reliance thereon.
Page 16
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations
under this Agreement or the Basic Documents, the Owner Trustee
(i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with
reasonable care and employed by it. The Owner Trustee shall
not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such persons and not
contrary to this Agreement or any Basic Document.
SECTION 7.05. Not Acting in Individual Capacity. Except
as provided in this Article VII, in accepting the trusts
hereby created Bankers Trust (Delaware) acts solely as Owner
Trustee hereunder and not in its individual capacity and all
Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any
Basic Document shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Certificate or
Receivables. The recitals contained herein and in the
Certificate (other than the signature and counter-signature of
the Owner Trustee on the Certificate and its representations
and warranties in Section 7.03) shall be taken as the
statements of the Depositor and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of
this Agreement, of any Basic Document or of the Certificate
(other than the signature and countersignature of the Owner
Trustee on the Certificate) or the Notes, or of any Receivable
or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or
the perfection and priority of any security interest created
by any Receivable in any Financed Equipment or the maintenance
of any such perfection and priority, or for or with respect to
the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to the
Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Equipment;
the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or
other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Depositor or the
Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of
any such warranty or representation or any action of the
Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
SECTION 7.07. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Servicer in
banking transactions with the same rights as it would have if
it were not Owner Trustee.
Page 17
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before
the date hereof between the Depositor and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by
the Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and
counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties
hereunder.
SECTION 8.02. Indemnification. The Depositor shall be
liable as primary obligor for, and shall indemnify the Owner
Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees
and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party
in any way relating to or arising out of this Agreement, the
Basic Documents, the Owner Trust Estate, the administration of
the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Depositor shall not be
liable for or required to indemnify the Owner Trustee from and
against Expenses arising or resulting from any of the matters
described in the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the
termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal
counsel shall be subject to the approval of the Depositor,
which approval shall not be unreasonably withheld.
SECTION 8.03. Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article VIII shall
be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.
(a) The Trust shall dissolve (i) upon the final
distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture, the Sale and Servicing
Agreement and Article V or (ii) at the time provided in
Section 9.02. Any money or other property held as part of the
Owner Trust Estate following such distribution (and following
a final distribution of proceeds from a sale under Section
9.02) shall be distributed to the Depositor.
Page 18
(b) Except as provided in Section 9.01(a), neither the
Depositor nor the Owner shall be entitled to revoke or
terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying
the Payment Date upon which the Certificateholder shall
surrender its Certificate to the Paying Agent for payment of
the final distribution and cancellation, shall be given by the
Owner Trustee by letter to the Certificateholder mailed within
five Business Days of receipt of notice of such termination
from the Servicer given pursuant to Section 9.01(c) of the
Sale and Servicing Agreement, stating (i) the Payment Date
upon or with respect to which final payment of the Certificate
shall be made upon presentation and surrender of the
Certificate at the office of the Paying Agent therein
designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon
presentation and surrender of the Certificate at the office of
the Paying Agent therein specified. The Owner Trustee shall
give such notice to the Certificate Registrar (if other than
the Owner Trustee) and the Paying Agent at the time such
notice is given to the Certificateholder. Upon presentation
and surrender of the Certificate, the Paying Agent shall cause
to be distributed to the Certificateholder amounts
distributable on such Payment Date pursuant to Section 5.02.
In the event that the Certificateholder shall not
surrender its Certificate for cancellation within six months
after the date specified in the above mentioned written
notice, the Owner Trustee shall give a second written notice
to the Certificateholder to surrender its Certificate for
cancellation and receive the final distribution with respect
thereto. If within one year after the second notice, the
Certificate shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the
Certificateholder concerning surrender of its Certificate, and
the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall
be distributed by the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and satisfaction
of all obligations in accordance with Section 3808 of the
Business Trust Statute, as amended, the Owner Trustee shall
cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business
Trust Statute and the Trust shall terminate and this Agreement
(other than Article VIII) shall be of no further force or
effect.
SECTION 9.02. Dissolution upon Bankruptcy of the
Depositor. In the event that an Insolvency Event shall occur
with respect to the Depositor, the Trust shall be dissolved in
accordance with Section 9.01 90 days after the date of such
Insolvency Event, unless, before the end of such 90-day
period, the Owner Trustee shall have received written
instructions from each of the Noteholders, to the effect that
each such party disapproves of the liquidation of the
Receivables and termination of the Trust. Promptly after the
occurrence of any Insolvency Event with respect to the
Depositor, (i) the Depositor shall give the Indenture Trustee
and the Owner Trustee written notice of such Insolvency Event,
(ii) the Owner Trustee shall, upon the receipt of such written
notice from the Depositor, give prompt written notice to the
Certificateholder and the Indenture Trustee, of the occurrence
of such event and (iii) the Indenture Trustee shall, upon
Page 19
receipt of written notice of such Insolvency Event from the
Owner Trustee or the Depositor, give prompt written notice to
the Noteholders of the occurrence of such event; provided,
however, that any failure to give a notice required by this
sentence shall not prevent or delay, in any manner, a
dissolution of the Trust pursuant to the first sentence of
this Section 9.02. Upon a dissolution pursuant to this
Section, the Owner Trustee shall direct the Indenture Trustee
promptly to sell the assets of the Trust (other than the Trust
Accounts and the Certificate Distribution Account) in a
commercially reasonable manner and on commercially reasonable
terms. The proceeds of such a sale of the assets of the Trust
shall be treated as collections under the Sale and Servicing
Agreement.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times be a
corporation satisfying the provisions of Section 3807(a) of
the Business Trust Statute; authorized to exercise corporate
trust powers; and having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such corporation shall
publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at
any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the
effect specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged
from the trusts hereby created by giving written notice
thereof to the Administrator; provided, however, that such
resignation and discharge shall only be effective upon the
appointment of a successor Owner Trustee. Upon receiving such
notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been
so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning
Owner Trustee may petition any court of competent jurisdiction
for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 10.01
and shall fail to resign after written request therefor by the
Administrator, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take
charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee
by written instrument, in duplicate, one copy of
Page 20
which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee
and payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section shall not become effective
until acceptance of appointment by the successor Owner Trustee
pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The
Administrator shall provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03. Successor Owner Trustee. Any successor
Owner Trustee appointed pursuant to Section 10.02 shall
execute, acknowledge and deliver to the Administrator and to
its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Administrator
and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance
such successor Owner Trustee shall be eligible pursuant to
Section 10.01.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail
notice of the successor of such Owner Trustee to all
Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator shall fail to mail
such notice within 10 days after acceptance of appointment by
the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.04. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the
successor of the Owner Trustee hereunder, provided that such
corporation shall be eligible pursuant to Section 10.01,
without the execution or filing of any instrument or any
further act on the part of any of the parties hereto;
anything herein to the contrary notwithstanding; provided
further that the Owner Trustee shall mail notice of such
merger or consolidation to the Rating Agencies.
SECTION 10.05. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal
Page 21
requirements of any jurisdiction in which any part of the
Owner Trust Estate or any Financed Equipment may at the time
be located, the Administrator and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the
Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or
any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.01
and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties, and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of
the then separate trustees and co-trustees, as effectively as
if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time
appoint the Owner Trustee, its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law,
to do
Page 22
any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Owner Trustee, to the
extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments. This
Agreement may be amended by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder or the
Certificateholder.
This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee, with prior written notice
to the Rating Agencies, with the consent of the Holders of
Notes evidencing not less than a majority of the Outstanding
Amount of the Notes and the consent of the Certificateholder
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or
the Certificateholder; provided, however, that no such
amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the
Certificateholder or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes required to consent to any
such amendment or eliminate the consent of the
Certificateholder to any such amendment, without the consent
of the holders of all the outstanding Notes and the
Certificate.
Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to the
Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of the
Certificateholder, the Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if
such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of the
Certificateholder provided for in this Agreement or in any
other Basic Document) and of evidencing the authorization of
the execution thereof by the Certificateholder shall be
subject to such reasonable requirements as the Owner Trustee
may prescribe.
Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing
of such amendment with the Secretary of State.
Page 23
Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be
entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent
have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.02. No Legal Title to Owner Trust Estate in
the Owner. The Owner shall not have legal title to any part
of the Owner Trust Estate. The Owner shall be entitled to
receive distributions with respect to its undivided ownership
interest therein only in accordance with Articles V and IX.
No transfer, by operation of law or otherwise, of any right,
title, and interest of the Owner to and in its ownership
interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Except
for Section 2.07, the provisions of this Agreement are solely
for the benefit of the Owner Trustee, the Depositor, the
Owner, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders and nothing
in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.04. Notices.
(a) Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall
be deemed given upon receipt by the intended recipient or
three Business Days after mailing if mailed by certified mail,
postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate
Trust Office; if to the Depositor, addressed to ▇▇▇▇ Deere
Receivables, Inc., First ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Manager, with a copy
to Deere & Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasury Department, Asset Securitization;
or, as to each party, at such other address as shall be
designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to the
Certificateholder shall be given by first-class mail, postage
prepaid, at the address of the Certificateholder as shown in
the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Page 24
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 (a) the Certificate Balance shall be reduced by Realized
Losses and (b) any litigation with claims in excess of
$1,000,000 to which the Depositor is a party which shall be
reasonably likely to result in a material judgment against the
Depositor that the Depositor will not be able to satisfy shall
be commenced by the Owner, during the period beginning nine
months following the commencement of such litigation and
continuing until such litigation is dismissed or otherwise
terminated (and, if such litigation has resulted in a final
judgment against the Depositor, such judgment has been
satisfied) the Depositor shall not pay any dividend to JDCC,
or make any distribution on or in respect of its capital stock
to JDCC, or repay the principal amount of any indebtedness of
the Depositor held by JDCC, unless (i) after giving effect to
such payment, distribution or repayment, the Depositor's
liquid assets shall not be less than the amount of actual
damages claimed in such litigation or (ii) the Rating Agency
Condition shall have been satisfied with respect to any such
payment, distribution or repayment. The Depositor further
agrees that prior to the termination of the Trust it shall not
revoke, modify or otherwise amend any agreements with JDCC in
effect on the Closing Date in any manner that would adversely
affect the rights of the Depositor to receive from JDCC
contributions of capital or payments on demand pursuant to
such agreements. The Depositor further covenants and agrees
that it will not enter into any transaction or take any action
(other than any transaction or action contemplated by this
Agreement or any of the Basic Documents) if, as a result of
such transaction or action, any rating of either the Notes or
the Certificate by any of the Rating Agencies would be
downgraded or withdrawn.
SECTION 11.09. No Petition. The Owner Trustee on behalf
of the Trust, the Certificateholder, by accepting a
Certificate, and the Indenture Trustee and each Noteholder by
accepting the benefits of this Agreement, hereby covenant and
agree that they will not at any time institute against the
Depositor, or join in any institution against the Depositor
of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United
States 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
Page 25
against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the
Certificate or the Basic Documents.
SECTION 11.11. Headings. The headings of the various
Articles and Sections herein are for convenience of reference
only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE
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 its agent and
attorney-in-fact to execute all such documents, reports,
filings, instruments, certificates and opinions.
Page 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.
BANKERS TRUST (DELAWARE)
not in its individual capacity
but solely as Owner Trustee,
By: ____________________________
Name:
Title:
▇▇▇▇ DEERE RECEIVABLES, INC.,
Depositor,
By: ____________________________
Name: Timur Gok
Title: Assistant Secretary
Page 27
EXHIBIT A
NUMBER $
R- CUSIP NO.
SEE REVERSE FOR CERTAIN DEFINITIONS
▇▇▇▇ DEERE OWNER TRUST 1999-A
ASSET BACKED CERTIFICATE
evidencing a fractional 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 equipment and industrial
equipment and sold to the Trust (as defined below) by ▇▇▇▇
Deere Receivables, Inc.
(This Certificate does not represent an interest in or
obligation of ▇▇▇▇ Deere Receivables, Inc., ▇▇▇▇ Deere Capital
Corporation, Deere & Company or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT __________________ is the
registered owner of ________DOLLARS_______ nonassessable,
fully-paid, fractional undivided interest in ▇▇▇▇ Deere Owner
Trust 1999-A (the "Trust") formed by ▇▇▇▇ Deere Receivables,
Inc., a Nevada corporation (the "Seller").
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-
mentioned Trust Agreement.
Bankers Trust (Delaware) Bankers Trust (Delaware)
as Owner Trustee or as Owner Trustee
By Bankers Trust Company,
Authenticating Agent
By: ___________________ By: ____________________
Page 28
The Trust was created pursuant to a Trust Agreement
dated as of May 15, 1999 (the "Trust Agreement"), between the
Seller and Bankers Trust (Delaware), as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Trust Agreement or
the Sale and Servicing Agreement dated as of May 15, 1999 (the
"Sale and Servicing Agreement"), among the Trust, the Seller
and ▇▇▇▇ 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 May 15, 1999, between the Trust and The Bank of New York,
as indenture trustee, are the Class A-1 4.9988% Asset Backed
Notes, the Class A-2 5.466% Asset Backed Notes, the Class A-3
5.94% Asset Backed Notes, the Class A-4 6.12% Asset Backed
Notes and the Class B 6.10% 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 and construction equipment (the
"Receivables"), all monies received on or after April 30, 1999
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 May 15, 1999, between ▇▇▇▇ 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 June 15, 1999, 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 fractional undivided interest in the
amount to be distributed to the Certificateholder on such
Payment Date.
The holder of this Certificate acknowledges and agrees
that its rights to receive distributions in respect of this
Certificate are subordinated to the rights of the Class A
Noteholders as described in the Sale and Servicing Agreement
and the Indenture.
It is the intention of the parties that the Trust will
be disregarded as an entity separate from the Owner 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 United States
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.
Page 29
Distributions on this Certificate will be made as
provided in the Trust Agreement by the Owner Trustee by wire
transfer or check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender
of this Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee
of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office
or agency maintained for the purpose by the Owner Trustee in
the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of
this Certificate set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect
as if set forth at this place.
Unless the certificate of authentication hereon shall
have been executed by an authorized officer of the Owner
Trustee, by manual signature, this Certificate shall not
entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of
the Trust and not in its individual capacity, has caused this
Certificate to be duly executed.
▇▇▇▇ DEERE OWNER TRUST 1999-A
By BANKERS TRUST (DELAWARE)
as Owner Trustee
Dated: By: _________________________
Page 30
[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. Any such consent by the holder of this
Certificate shall be conclusive and binding on the holder of
this Certificate and of any Certificate issued upon the
transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent
of the holder of the Certificate.
As provided in the Trust Agreement, this Certificate
is non-transferable. The initial Certificate Registrar
appointed under the Trust Agreement is Bankers Trust Company,
New York, New York.
The Certificate is issuable only as a registered
Certificate without coupons in denominations of $100,000 or
integral multiples of $1,000 in excess thereof. As provided
in the Trust Agreement and subject to certain limitations
therein set forth, the Certificate is exchangeable for new
Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the holder
surrendering the same. No service charge will be made for any
such exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any
agent of the Owner Trustee or the Certificate Registrar may
treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and none of the Owner
Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the
Trust Agreement and the Trust created thereby shall terminate
upon the payment to the Certificateholder of all amounts
required
Page 31
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 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.
Page 32
EXHIBIT B
CERTIFICATE OF TRUST OF
▇▇▇▇ DEERE OWNER TRUST 1999-A
THIS Certificate of Trust of ▇▇▇▇ DEERE OWNER TRUST
1999-A (the "Trust"), dated as of May 15, 1999, is being duly
executed and filed by Bankers Trust (Delaware), a Delaware
banking corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code, Section
3801 et seq.).
1. Name. The name of the business trust formed
hereby is ▇▇▇▇ DEERE OWNER TRUST 1999-A.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware is
Bankers Trust (Delaware), E.A. Delle Donne Corporate Center,
▇▇▇▇▇▇▇▇▇▇ Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. This Certificate of Trust will be effective May
__, 1999.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust
as of the date first above written.
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as
trustee of the Trust.
By: _______________________________
Name:
Title:
Page 33
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