Exhibit 1.1
Execution Copy
JOHN DEERE OWNER TRUST 2006
XXXX DEERE RECEIVABLES, INC.
and
XXXX DEERE CAPITAL CORPORATION
Class A-1 5.36417% Asset Backed Notes
Class A-2 5.41% Asset Backed Notes
Class A-3 5.38% Asset Backed Notes
Class A-4 5.39% Asset Backed Notes
UNDERWRITING AGREEMENT
----------------------
June 13, 2006
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANK OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
X.X. XXXXXX SECURITIES INC.
RBC CAPITAL MARKETS CORPORATION
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center, 10th Floor
New York, New York 10080
Dear Sirs:
Xxxx Deere Receivables, Inc. (the "Seller") and Xxxx Deere Capital
Corporation ("JDCC") confirm their agreement (the "Agreement") with Deutsche
Bank Securities Inc. ("DBSI"), Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), Banc of America Securities LLC, BNP Paribas
Securities Corp., X.X. Xxxxxx Securities Inc. and RBC Capital Markets
Corporation (collectively, the "Underwriters" or "you", which terms shall also
include any Underwriter substituted as provided in Section 11), for whom DBSI
and Xxxxxxx Xxxxx are acting as representatives (in such capacity DBSI and
Xxxxxxx Xxxxx are hereinafter referred to collectively, as the "Representatives"
and each, a "Representative") with respect to the public offering by you of the
Asset Backed Notes ("Notes") specified in the Pricing Agreement referred to
below (the "Underwritten Notes"). The Seller has authorized the public
offering of up to $790,470,000 principal amount of Notes. The Notes may be
offered in various series, and, within each series, in one or more classes, in
one or more offerings on terms determined at the time of sale (each such series,
a "Series" and each such class, a "Class"). Each such Series of the Notes may be
issued by a Delaware statutory trust (each, a "Trust") under a separate
indenture (each, an "Indenture") between the Trust and a trustee to be
identified in the prospectus supplement relating to such Series (the "Indenture
Trustee"). Each Trust will also issue Asset Backed Certificates ("Certificates")
evidencing beneficial interests in such Trust. Each Trust will be created
pursuant to a separate trust agreement (each, a "Trust Agreement") with respect
to such Series between a trustee to be identified in the prospectus supplement
relating to such Series (the "Owner Trustee") and the Seller, as depositor. The
Notes and the Certificates are collectively referred to as the "Securities". The
assets of each Trust will include agricultural and construction equipment retail
installment sale and loan contracts (the "Receivables") and various Trust
accounts. The Seller will purchase the Receivables relating to a Series of Notes
from JDCC pursuant to a separate Purchase Agreement and sell them to the related
Trust pursuant to a separate Sale and Servicing Agreement, pursuant to which
JDCC will service and administer such Receivables. The Indenture, the Trust
Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement relating to a Series of Notes are collectively referred
to herein as the "Basic Documents". Unless otherwise specified herein, reference
to the Trust and any Basic Document shall refer to the Trust that will issue the
Underwritten Notes and the related Basic Document, respectively. Capitalized
terms used but not defined herein have the meanings assigned to them in the
Indenture and the Trust Agreement.
Prior to the purchase and public offering of the Underwritten Notes by the
Underwriters, the Seller, JDCC and the Underwriters shall enter into an
agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Seller, JDCC and the
Underwriters and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Underwritten Notes will be governed by
this Agreement, as supplemented by the Pricing Agreement. From and after the
date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Seller has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-130966), containing
a preliminary prospectus and form of preliminary prospectus supplement relating
to the Notes and to the Certificates for the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
of the Notes from time to time in accordance with Rule 415 of the rules of the
Commission under the 1933 Act (the "1933 Act Regulations"), has filed such
amendments thereto, if any, and such amended preliminary prospectus and form of
preliminary prospectus supplement as have been required to the date hereof, and
will file such additional amendments thereto and such amended prospectuses and
forms of prospectus supplement as may hereafter be required pursuant to the 1933
Act and the 1933 Act Regulations. "Registration Statement" as of any time means
such registration statement (collectively), as amended, in the form then filed
by the Seller including any prospectus and/or prospectus supplement deemed or
retroactively deemed to be a part thereof that has not been superseded or
modified and all documents incorporated therein by reference, as from time to
time amended or supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act") and the 1933 Act. "Registration
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Statement" without reference to a time means the Registration Statement as of
the time of the first contract of sale for the offering of the Underwritten
Notes of a particular Series, which time shall be considered the "effective
date" of the Registration Statement with respect to such Underwritten Notes. For
purposes of this definition, information contained in a form of prospectus or
prospectus supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430B shall be considered to be included
in the Registration Statement as of the time specified in Rule 430B.
"Preliminary Prospectus" means (i) the prospectus relating to the Notes,
that is included in the Registration Statement and (ii) the preliminary
prospectus supplement relating to the Underwritten Notes dated the date
specified in the Pricing Agreement for use prior to the time of first contract
of sale of the Underwritten Notes (together, with information referred to under
the caption "Static Pool Data" therein regardless of whether it is deemed a part
of the Registration Statement or Prospectus, the "Preliminary Prospectus
Supplement"). "Prospectus" means the (i) the prospectus relating to the Notes,
that is included in the Registration Statement and (ii) the prospectus
supplement contemplated by Section 4(a)(i) (together, with information referred
to under the caption "Static Pool Data" therein regardless of whether it is
deemed a part of the Registration Statement or Prospectus, a "Prospectus
Supplement") that discloses the public offering price and other final terms of
such Underwritten Notes and otherwise satisfies Section 10(a) of the 1933 Act.
The Prospectus Supplement shall be deemed to have supplemented the Prospectus
only with respect to the offering of Underwritten Notes to which it relates.
At or prior to the Applicable Time, the Seller had prepared the Preliminary
Prospectus. "Applicable Time" means the time agreed to by the Seller and the
Representatives and set forth in the Pricing Agreement, which shall be the time
immediately after the Seller and the Representatives agree on the pricing terms
of the Underwritten Notes.
SECTION 1. Representations and Warranties.
(a) Each of the Seller and JDCC represents and warrants to each
Underwriter as of the date hereof (such date being hereinafter referred to as
the "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the Representation Date,
complied, and the Prospectus as of the Closing Date will comply, in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act of 1939, as amended (the "1939
Act"). The Registration Statement, as of the applicable effective date as
to each part of the Registration Statement pursuant to Rule 430B(f)(2) and
any amendment thereto, did not, and will not, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective, as of
its issue date and as of the Closing Date, did not, and will not, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Preliminary
Prospectus when filed complied in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and
as of the Applicable Time the Preliminary Prospectus and the
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information listed on Exhibit B to the Pricing Agreement, all considered
together (collectively, the "Disclosure Package"), did not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Notwithstanding
anything to the contrary contained herein, the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or the Disclosure Package
made in reliance upon and in conformity with information furnished to the
Seller in writing by any Underwriter through the Representatives expressly
for use in the Registration Statement, the Prospectus or the Disclosure
Package it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
"Underwriters Information" in the Pricing Agreement, or to that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification under the 1939 Act (Form T-1) of the Indenture Trustee.
(ii) The documents, if any, incorporated by reference in the
Prospectus, at the time, if any, they were or hereafter are filed with the
Commission during the period specified in Section 4(a)(vi), complied and
will comply, as the case may be, in all material respects with the
positions of the staff of the Commission pursuant to the 1934 Act and the
rules and regulations thereunder, and, when read together and with the
other information in the Prospectus, at the time the Registration Statement
became effective, at the time any amendments thereto become effective and
as to the applicable effective date as to each part of the Registration
Statement pursuant to Rule 430B(f)(2) or hereafter during the period
specified in Section 4(a)(vi), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iii) Deloitte & Touche LLP are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Since the respective dates as of which information is given in
the Registration Statement, the Prospectus and the Disclosure Package,
except as otherwise stated in or contemplated by the Registration
Statement, the Prospectus and the Disclosure Package (A) there has not been
any material adverse change in the financial condition of the Seller or in
the results of operations or business prospects of the Seller, whether or
not arising in the ordinary course of business and (B) there have been no
transactions entered into by the Seller, other than transactions in the
ordinary course of business, which are material with respect to the Seller.
(v) Since the respective dates as of which information is given in the
Registration Statement, the Prospectus and the Disclosure Package, except
as otherwise stated in or contemplated by the Registration Statement, the
Prospectus and the Disclosure Package (A) there has not been any material
adverse change in the financial condition of JDCC and its subsidiaries
considered as one enterprise, or in the results of operations or business
prospects of JDCC and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and (B) there
have
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been no transactions entered into by JDCC or its subsidiaries, other than
transactions in the ordinary course of business, including borrowings for
the acquisition of receivables and other operations and other than
transactions which are not material in relation to JDCC and its
subsidiaries considered as one enterprise.
(vi) Each of the Seller and JDCC has been duly incorporated and is
validly existing as a corporation and is in good standing under the laws of
the jurisdiction of its incorporation, with power and authority to own,
lease and operate its property and to conduct its business as described in
the Registration Statement, the Prospectus and the Preliminary Prospectus.
(vii) The execution and delivery of this Agreement, the Purchase
Agreement, the Sale and Servicing Agreement, the Trust Agreement and the
Administration Agreement and the consummation of the transactions
contemplated herein and therein, have been duly authorized by all necessary
corporate action of the Seller and JDCC, as applicable, and will not result
in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Seller or
JDCC, pursuant to any indenture, loan agreement, contract or other
agreement or instrument to which the Seller or JDCC is a party or by which
the Seller or JDCC may be bound or to which any of the property or assets
of the Seller or JDCC is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Seller or JDCC
or, to the best of its knowledge, any order, rule or regulation applicable
to the Seller or JDCC of any court or of any federal, state or other
regulatory authority or other governmental body having jurisdiction over
the Seller or JDCC.
(viii) The Underwritten Notes have been duly authorized for issuance
and sale pursuant to this Agreement and the Certificates have been duly
authorized pursuant to the Trust Agreement (or will have been so authorized
prior to the issuance of the Securities) and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement and the
Indenture, in the case of the Underwritten Notes, and the Trust Agreement,
in the case of the related Certificates, against payment of the
consideration therefor in accordance with this Agreement in the case of the
Underwritten Notes, the Underwritten Notes will be valid and legally
binding obligations of the Trust enforceable in accordance with their
terms, and will be entitled to the benefits of the Indenture, and the
related Certificates will be duly and validly issued and outstanding, in
each case except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors'
rights or by general equity principles. The Underwritten Notes, the related
Certificates, the Indenture and the Trust Agreement conform in all material
respects to all statements relating thereto contained in the Disclosure
Package, the Prospectus and the Registration Statement.
(ix) At the Closing Time or at such other times as may be set forth
herein, each of the representations and warranties of the Seller and JDCC
set forth in the Sale and Servicing Agreement and by JDCC in the Purchase
Agreement will be true and correct; provided that the sole remedy for any
breach of any representation or warranty in Section
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3.02(b) of the Purchase Agreement shall be limited to the remedies therefor
provided in the Purchase Agreement.
(x) JDCC discussed the accounting treatment to be taken with respect
to the conveyance of receivables contemplated by Section 2.01 of the
Purchase Agreement with its independent accountants and, consistent with
such discussions, JDCC will, with respect to its unconsolidated financial
accounts, treat such transactions as a sale of assets for accounting
purposes.
(xi) The Seller is not, and on the date on which the first bona fide
offer of the Underwritten Notes was made was not, an "ineligible issuer,"
as defined in Rule 405 under the 1933 Act.
(xii) Each Issuer Free Writing Prospectus (as defined in Section 3(a))
(including any Permitted Free Writing Prospectus (as defined in Section
3(a))), as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Underwritten Notes or until
any earlier date that the Seller notified or notifies the Underwriters as
described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict (within the meaning
of Rule 433(c)) with the information then contained in the Registration
Statement, the Prospectus or the Preliminary Prospectus and not superseded
or modified. If at any time following issuance of an Issuer Free Writing
Prospectus (including any Permitted Free Writing Prospectus) there occurred
or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information then
contained in the Registration Statement, the Prospectus or the Preliminary
Prospectus or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Seller will
promptly (i) notify the Representatives and (ii) amend or supplement such
Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(xiii) The initial effective date of the Registration Statement is not
more than three years prior to the date on which the first bona fide offer
of the Underwritten Notes was made.
(b) Any certificate signed by any officer of the Seller or JDCC and
delivered to the Representatives or counsel for the Underwriters shall be deemed
a representation and warranty by the Seller or JDCC (or by the Seller acting
through JDCC) as to the matters covered thereby to each Underwriter.
(c) Each Underwriter represents and warrants to each of the Seller and
JDCC as of the date hereof as follows:
(i) In relation to each member state of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date"), each Underwriter has not
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made and will not make an offer of Underwritten Notes to the public in that
Relevant Member State prior to the publication of a prospectus in relation
to Underwritten Notes which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant member State, all in accordance with the Prospectus Directive,
except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Underwritten Notes to the public in
that Relevant Member State at any time:
(1) to legal entities which are authorized or regulated to
operate in financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(2) to any legal entity which has two or more of (A) an average
of at least 250 employees during the last financial year; (B) a total
balance sheet of more than (euro)43,000,000 and (C) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(3) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of the
Prospective Directive.
For purposes of this Section 4(c)(i), the expression an "offer of
Underwritten Notes to the public" in relation to any notes in any Relevant
Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Underwritten Notes
to be offered so as to enable an investor to decide to purchase or
subscribe the Underwritten Notes, as the same may be varied in that member
state by any measure implementing the Prospectus Directive in that member
state, and the expression "Prospective Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
(ii) (A) Each Underwriter is a person whose ordinary activities
involve it in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of its business and (B) it
has not offered or sold and will not offer or sell the notes other
than to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses or who it is reasonable to
expect will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses where the
issue of the Underwritten Notes would otherwise constitute a
contravention of Section 19 of the Financial Services and Markets Act
(the "FSMA") by the issuing entity;
(iii) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of the Underwritten Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuing Entity; and
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(iv) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it
in relation to the Underwritten Notes in, from or otherwise involving
the United Kingdom.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Seller agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter agrees to
purchase from the Seller, the Underwritten Notes set forth opposite its name in
the Pricing Agreement at the respective prices to be determined by agreement
between the Seller and you, which prices shall be set forth in the Pricing
Agreement. In the event that such prices have not been agreed upon and the
Pricing Agreement has not been executed and delivered by all parties thereto by
the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the Seller and you.
(b) Payment of the purchase price for, and delivery of, the Underwritten
Notes shall be made at the office of Shearman & Sterling LLP, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon
by the Representatives and the Seller at 10:00 A.M. on June 20, 2006, or such
other time as shall be agreed upon by the Representatives and the Seller (such
time and date of delivery being herein called "Closing Time" and such date of
delivery being called the "Closing Date"). Payment shall be made by the
Representatives to the Seller in same day funds against delivery of the
Underwritten Notes to, or at the direction of, the Representatives. The
Underwritten Notes shall be in such denominations and registered in such names
as the Representatives may request in writing at least two business days before
Closing Time. The Underwritten Notes, which may be in temporary form, will be
made available for examination and packaging by the Representatives not later
than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten
Notes will be represented initially by Underwritten Notes registered in the name
of Cede & Co., the nominee of The Depository Trust Company.
SECTION 3. Free Writing Prospectuses.
(a) The Seller represents and agrees that, unless it obtains the prior
consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Seller and the Representatives, it
has not made and will not make any offer relating to the Underwritten Notes that
would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a "free writing prospectus," as defined in Rule 405, required to be
filed with the SEC. Any such free writing prospectus consented to in writing by
the Seller and the Representatives is referred to herein as a "Permitted Free
Writing Prospectus." The Seller represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an "issuer free writing
prospectus," as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
"Issuer Free Writing Prospectus" means any "issuer free writing prospectus," as
defined in Rule 433, relating to the Underwritten Notes in the form filed or
required to be filed by the Seller with the SEC or, if not required to be filed,
in the form retained in the Seller's records pursuant to Rule 433(g).
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(b) Subject to the consent of the Representatives required in Section 3(a),
the Seller will prepare a final term sheet relating to the final terms of the
Underwritten Notes in the form attached as Exhibit A to the Pricing Agreement
(the "Final Term Sheet") and will file such Final Term Sheet within the period
required by Rule 433(d)(5)(ii) following the date such final terms have been
established for the Underwritten Notes. Any such Final Term Sheet is an Issuer
Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of
this Agreement. Notwithstanding anything to the contrary contained herein, the
Seller consents to the use by any Underwriter of a free writing prospectus
(each, an "Underwriter Free Writing Prospectus") that contains only (i) (A)
information describing the preliminary terms of the Underwritten Notes or their
offering or (B) information that describes the final terms of the Underwritten
Notes or their offering and that is or is to be included in the Final Term Sheet
or (ii) other customary information that is neither "issuer information" as
defined in Rule 433(h)(2) or otherwise an Issuer Free Writing Prospectus;
provided that (x) no such Underwriter Free Writing Prospectus shall include
information that conflicts with information in the Registration Statement, the
Preliminary Prospectus or the Prospectus and not superseded or modified;(y) such
Underwriter Free Writing Prospectus shall contain the legend required by Rule
433(c)(2); and (z) the Underwriters using the Underwriter Free Writing
Prospectus shall retain the free writing prospectus for the period required by
Rule 433(g) of the 1933 Act or any successor provision. Each Underwriter shall
provide to the Seller a true and accurate copy of each Free Writing Prospectus
conveyed by it of the type referred to in Rule 433(d)(5)(ii) under the 1933 Act
no later than the close of business on the business day following the date of
first use.
(c) Neither the Seller nor any Underwriter shall disseminate or file with
the Commission any information relating to any Underwritten Notes in reliance on
Rule 167 or 426 under the 1933 Act, nor shall the Seller or any Underwriter
disseminate any Underwriter Free Writing Prospectus (as defined below) "in a
manner reasonably designed to lead to its broad unrestricted dissemination"
within the meaning of Rule 433(d) under the 1933 Act.
SECTION 4. Covenants.
(a) The Seller covenants with each Underwriter as follows:
(i) Immediately following the execution of the Pricing Agreement, the
Seller will prepare a Prospectus Supplement setting forth the principal
amount of the Underwritten Notes, the price or prices at which the
Underwritten Notes are to be purchased by the Underwriters, either the
initial public offering price or prices or the method by which the price or
prices at which the Underwritten Notes are to be sold will be determined,
the selling concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as you and the Seller deem
appropriate in connection with the offering of the Underwritten Notes. The
Seller will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will
furnish to the Underwriters as many copies of the Prospectus and such
Prospectus Supplement as you shall reasonably request.
(ii) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Notes, the Seller
will promptly notify the Representatives, and immediately confirm the
notice in writing, (A) of the
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effectiveness of any post-effective amendment to the Registration
Statement, (B) of the receipt of any comments from the Commission, (C) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Preliminary Prospectus or
the Prospectus or for additional information, (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (E) of the mailing or delivery to the Commission for filing of any
document to be filed pursuant to the 1934 Act and (F) of the receipt by the
Seller of any notification with respect to the suspension of the
qualification of any Class of Underwritten Notes for sale in any
jurisdiction or the initiation of any proceedings for that purpose. The
Seller will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(iii) At any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Underwritten Notes, the Seller
will give the Representatives notice of its intention to file any amendment
to the Registration Statement, whether pursuant to the 1934 Act, the 1933
Act or otherwise, or use any amendment or supplement to the Prospectus,
will furnish the Representatives with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment or supplement
or use any such prospectus in a form to which the Representatives or
counsel for the Underwriters shall reasonably object.
(iv) During the period specified in (ii) above, the Seller will
deliver to the Representatives as many signed and conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith) as the Representatives may reasonably
request.
(v) The Seller will furnish to you, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of such Prospectus (as amended or supplemented) as
you may reasonably request for the purposes contemplated by the 1933 Act or
the respective applicable rules and regulations of the Commission
thereunder.
(vi) If, at any time during the term of this Agreement and thereafter,
when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Underwritten Notes, any event shall occur as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Seller, to amend or supplement the
Preliminary Prospectus or the Prospectus in order that the Preliminary
Prospectus or the Prospectus, as the case may be, will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend or supplement the Registration Statement, the Preliminary
Prospectus or the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Seller will promptly advise
the Representatives of any proposal to amend or supplement the Registration
Statement, the Preliminary Prospectus or the Prospectus as may be
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necessary to correct such untrue statement or omission or to make the
Registration Statement, the Preliminary Prospectus and the Prospectus
comply with such requirements and will not file with the Commission such
amendment or supplement, whether by filing documents pursuant to the 1934
Act or otherwise without the Representatives' consent, which consent shall
not be unreasonably withheld and which consent or nonconsent shall be given
no later than two Business Days after the Seller advises the
Representatives of such proposal to amend or supplement. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in this Section 4. Notwithstanding the foregoing, the parties
agree that for purposes of this Section 4(a)(vi), (A) the Seller may assume
that the delivery period described above shall expire on September 10, 2006
unless otherwise advised in writing by the Representatives and (B) this
Section 4(a)(vi) shall not apply to monthly servicing reports on Form 10-D
or to any filing made on Form 10-K. If the Representatives provide the
notice described in the preceding clause (A), such notice shall be updated
by a new notice to the Seller not less than weekly until the delivery
period shall have expired.
(vii) The Seller will endeavor in good faith to qualify the
Underwritten Notes for offering and sale under the applicable securities
laws of such jurisdictions as the Representatives may designate; provided,
however, that the Seller shall not be obligated to file any general consent
to service or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction to which it is not so qualified. The Seller
will maintain such qualifications in effect for as long as may be required
for the distribution of the Underwritten Notes. The Seller will file such
statements and reports as may be required by the laws of each jurisdiction
in which the Underwritten Notes have been qualified as above provided.
(viii) During a period of 15 days from the date of the Prospectus, the
Seller will not, without your prior written consent, directly or
indirectly, sell, offer to sell, or otherwise dispose of, any asset backed
pass-through certificates or notes or similar securities representing
interests in or secured by agricultural and construction equipment loan
receivables.
(ix) The Seller has filed or will file each Preliminary Prospectus
pursuant to and in accordance with Rule 424(b) within the time period
prescribed under Rule 424(b). The Seller has complied and will comply with
Rule 433.
(x) The Seller will prepare and file the Prospectus pursuant to and in
accordance with Rule 424(b) within the time period prescribed under Rule
424(b).
(b) The Seller covenants with you as follows:
(i) With respect to each sale of the Underwritten Notes, the Seller
will cause the Trust to make generally available to holders of Underwritten
Notes as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement of the Trust (in form
complying with the provisions of Rule 158 under the 1933 Act) covering the
12-month period beginning not later than the first day of the
11
Trust's fiscal quarter next following the "effective date" (as defined in
Rule 158) of the Registration Statement relating to the Underwritten Notes.
(c) The Servicer covenants with you as follows:
(i) So long as any of the Underwritten Notes shall be outstanding, the
Servicer will deliver to you a copy of the annual statement as to
compliance and any notice of default delivered to the Indenture Trustee
pursuant to Section 4.10 of the Sale and Servicing Agreement and a copy of
the annual assessment(s) of compliance with the servicing criteria and the
annual attestation of a firm of independent public accountants furnished to
the Indenture Trustee pursuant to Section 4.11 of the Sale and Servicing
Agreement, as soon as such statements are furnished to the Indenture
Trustee.
SECTION 5. Payment of Expenses. The Seller and JDCC will be obligated to
pay all expenses incident to the performance of their obligations under this
Agreement, including (i) the printing and filing of the Registration Statement
as originally filed and of each amendment thereto, (ii) the preparation,
printing, issuance and delivery of the Underwritten Notes to the Underwriters,
(iii) the fees and disbursements of counsel and accountants for the Seller and
JDCC, (iv) the qualification of the Underwritten Notes under securities laws in
accordance with the provisions of Section 4(a)(vii), including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (v) the
determination of the eligibility of the Underwritten Notes for investment and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of a Legal Investment Survey,
if any, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of each Prospectus and any amendments or
supplements thereto, (vii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey, (viii) the fees of each Rating Agency that rates
any of the Underwritten Notes, (ix) the fees and expenses of the Indenture
Trustee, the Owner Trustee and their respective counsel and (x) all expenses
incurred for preparing, printing and distributing each Issuer Free Writing
Prospectus to investors or prospective investors.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6 or Section 10(a)(i), the Seller and JDCC, jointly and
severally, shall be obligated to reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Seller and JDCC herein contained, to the performance by the
Seller and JDCC of their obligations hereunder, and to the following further
conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Preliminary Prospectus and the Prospectus shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period and the Final Term
12
Sheet contemplated by Section 3(b) shall have been transmitted for filing
within the prescribed time period required by Rule 433(d)(5)(ii), and prior
to Closing Time, the Seller shall have provided evidence satisfactory to
the Representatives of such timely filing.
(b) At Closing Time, the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Date, of
Xxxxxxxx & Sterling LLP, counsel for the Seller and JDCC, in form and
substance satisfactory to the Representatives, to the effect that:
(i) JDCC is a corporation duly incorporated and validly
existing in good standing under the laws of the State of
Delaware.
(ii) This Agreement has been duly authorized, executed and
delivered by JDCC.
(iii) Assuming the due authorization, execution and delivery
of the Indenture by the parties thereto, the Indenture
constitutes a valid and binding obligation of the Trust,
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(iv) Assuming that the Underwritten Notes have been duly
authorized, executed and delivered by the Trust, when
authenticated by the Indenture Trustee in accordance with the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, the Underwritten Notes will be valid
and binding obligations of the Trust, entitled to the benefits of
the Indenture and enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency (including without limitation all laws relating to
fraudulent transfers), reorganization or other similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law).
(v) Assuming due authorization, execution and delivery
thereof by the party or parties thereto, each Basic Document to
which the Seller is a party constitutes the valid and binding
obligation of the Seller enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization or similar laws
relating to or affecting creditors' rights generally, and except
as
13
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law).
(vi) Each Basic Document (other than the Trust Agreement) to
which JDCC is a party has been duly authorized, executed and
delivered by JDCC and, assuming due authorization, execution and
delivery thereof by the other party or parties thereto,
constitutes the valid and binding obligation of JDCC enforceable
in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization or similar laws relating to or affecting
creditors' rights and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(vii) The statements in the Preliminary Prospectus and the
Prospectus under "Description of the Notes" and "Description of
the Transfer and Servicing Agreements," in each case, insofar as
such statements constitute summaries of certain provisions of the
Securities and the Basic Documents, fairly summarize in all
material respect such provisions.
(viii) The statements in the Preliminary Prospectus
Supplement and the Prospectus Supplement under "Federal Income
Tax Considerations" and "ERISA Considerations", in each case, in
so far as such statements constitute statements of legal matters
referred to therein, fairly summarize, subject to the limitations
set forth therein, in all material respects the legal matters
referred to therein. As set forth and further discussed in such
statements, for federal income tax purposes, the Underwritten
Notes will be considered debt and the Trust will not be an
association (or a publicly traded partnership) taxable as a
corporation.
(ix) No authorization, approval, consent or order of any
court or governmental authority or agency is required in
connection with the sale of the Underwritten Notes to the
Underwriters or the issuance of the related Certificates, except
such as may have been obtained or be required under the 1933 Act
or the 1933 Act Regulations or state securities law.
(x) The execution and delivery of this Agreement and the
Basic Documents by each of the Seller, the Trust and JDCC and the
consummation of the transactions contemplated herein and therein
will not result in the violation of the provisions of any
applicable federal law or federal administrative regulation
(other than the 1933 Act, the 1934 Act and the 1939 Act).
(xi) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been
14
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xii) The Registration Statement, the Preliminary Prospectus
and the Prospectus, and each amendment or supplement thereto
(except for the financial statements and other financial or
statistical data included therein or omitted therefrom and the
Statement of Eligibility and Qualification of the Indenture
Trustee on Form T-1, as to which such counsel need express no
opinion), as of their respective effective or issue dates, appear
on their face to have been appropriately responsive in all
material respects to the requirements of the 1933 Act, the 1939
Act and the 1933 Act Regulations.
(xiii) The execution and delivery of this Agreement, the
fulfillment of the terms herein set forth and the consummation of
the transactions contemplated herein and in the Basic Documents
to which the Seller is a party will not conflict with the charter
or by-laws of the Seller.
(xiv) Neither the Seller nor the Trust is required to
register as an "investment company" under the 1940 Act.
(xv) The Indenture has been duly qualified under the 1939
Act, and the Trust Agreement is not required to be qualified
under the 1939 Act.
(xvi) The Purchase Agreement validly transfers to the Seller
an ownership interest in the Receivables. Under New York law, the
perfection of such ownership interest is governed by the law of
the state in which JDCC is organized.
(xvii) The Sale and Servicing Agreement either (a) validly
transfers to the Trust an ownership interest in all of the
Seller's right, title and interest in the Receivables or (b) if
the transfer of the Receivables to the Trust pursuant to the Sale
and Servicing Agreement is deemed to be a pledge, then the Sale
and Servicing Agreement creates a valid security interest in the
Receivables and the proceeds thereof in favor of the Trust. Under
New York law, the perfection of such ownership interest and
security interest is governed by the law of the jurisdiction
where such collateral is located or, in the case of a
non-possesory interest in the Receivables, by the law of the
state in which the Seller is organized.
(xviii) The Indenture creates a valid security interest in
the Receivables and the proceeds thereof and in the Trust
Accounts in favor of the Indenture Trustee. Under New York law,
the perfection of such security interest is governed by (x) the
law of the state in which the Trust is organized in the case of
the Receivables and the proceeds thereof and (y) the related
"securities intermediary's jurisdiction" or related "bank's
jurisdiction," as applicable, in the case of the Trust Accounts.
15
Such opinion shall also state that such counsel has not verified, and is
not passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Disclosure Package other than those mentioned
in paragraph (vii) above. Such counsel has, however, generally reviewed and
discussed such statements with certain officers of the Seller and JDCC and their
auditors. In the course of such review and discussion, no facts have come to
such counsel's attention that lead such counsel to believe (i) that the
Registration Statement or any amendment thereto (except for the financial
statements and other financial and statistical data included therein or omitted
therefrom and the Statement of Eligibility and Qualification of the Indenture
Trustee on Form T-1, as to which such counsel need not comment), at the
Applicable Time, contained an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) that the Disclosure Package or
any amendment or supplement thereto (except for the financial statements and
other financial and statistical data included therein or omitted therefrom, as
to which such counsel need not comment), as of the Applicable Time or as of the
Closing Date, included or includes any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (iii) that the Prospectus or any amendment or supplement thereto
(except for the financial statements and other financial and statistical data
included therein or omitted therefrom, as to which such counsel need not
comment), at the time the Prospectus was issued, at the time any such amended or
supplemented Prospectus was issued or as of the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In addition, the Underwriters shall have received from Shearman & Sterling
LLP, a letter authorizing the Underwriters to rely upon the opinion or opinions
delivered by such counsel to each Rating Agency that is requested to give a
rating on any of the Underwritten Notes in connection with the transactions
contemplated by this Agreement and the Basic Documents.
(2) The favorable opinion, dated as of the Closing Date, of the
General Counsel or Associate General Counsel of Deere & Company
("Deere") or the Chief Counsel of JDCC, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of such counsel's knowledge and information,
the execution and delivery of this Agreement and the Basic
Documents and the consummation of the transactions contemplated
herein and therein will not result in the violation of the
provisions of any applicable federal or Illinois law or federal
or Illinois administrative regulation.
(ii) The execution and delivery of this Agreement and the
Basic Documents and the consummation of the transactions
contemplated herein and therein will not conflict with or
constitute a breach of, or default under, the charter or bylaws
of JDCC or the Seller or any agreement, indenture, or other
instrument known to such counsel to which JDCC or the Seller is a
party or by which JDCC or the Seller may be
16
bound, or any law, administrative regulation or administrative or
court order known to him to be applicable to either JDCC or the
Seller.
(iii) The statements in the Preliminary Prospectus and the
Prospectus under the caption "Certain Legal Aspects of the
Receivables," to the extent they constitute matters of law or
legal conclusions, are correct in all material respects.
(iv) The Receivables are "tangible chattel paper" under the
Illinois Uniform Commercial Code.
(v) During the time period in which JDCC acquired the
Receivables, JDCC had in place sufficient documents and
procedures which, if followed, resulted in JDCC owning the
Receivables; and assuming that such procedures were followed (and
counsel has no reason to believe such procedures were not
followed), immediately prior to the sale of the Receivables to
the Seller, JDCC owned the Receivables free and clear of any
lien, security interest or charge. With respect to each
Receivable constituting part of the Trust, such Receivable is
secured by a validly perfected first priority purchase money
security interest in the equipment financed thereby in favor of
JDCC as a secured party or, in accordance with its customary
standards, policies and servicing procedures, such procedures
have been taken that if followed (and such counsel has no reason
to believe that they will not be so followed) will result in the
perfection of a first priority purchase money security interest
in the equipment financed thereby in favor of JDCC as a secured
party, subject to customary and usual exceptions. Each such
Receivable has been duly and validly assigned to the Seller by
JDCC pursuant to the terms of the Purchase Agreement.
(3) The favorable opinion, dated as of the Closing Date, of
Xxxxxx, Xxxxxx & Xxxxxxx, special Nevada counsel for the Seller and
JDCC, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Seller is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Nevada.
(ii) This Agreement and each Basic Document to which the
Seller is a party has been duly authorized and executed by the
Seller.
(iii) The Receivables are "tangible chattel paper" under
Nevada law.
(iv) Assuming that an ownership interest in the Receivables
has been validly transferred to the Seller pursuant to the
Purchase Agreement and such security interest has been properly
perfected under applicable law, the Seller has a first-priority
ownership interest in the Receivables and the proceeds thereof,
subject to customary exceptions and
17
assumptions. Assuming that an ownership interest in the
Receivables has been validly transferred to the Trust pursuant to
the Sale and Servicing Agreement, the Trust has a first-priority,
perfected ownership interest in the Receivables and the proceeds
thereof, subject to customary exceptions and assumptions.
Assuming that a security interest in the Receivables has been
validly created in favor of the Indenture Trustee pursuant to the
Indenture and such security interest has been properly perfected
under applicable law, the Indenture Trustee has a first priority
security interest in the Receivables and the proceeds thereof,
subject to customary exceptions and assumptions.
(v) The State of Nevada does not impose an individual income
tax or an income tax on corporations, partnerships or other
entities doing business in Nevada.
(4) The favorable opinion, dated as of the Closing Date, of Lane
& Xxxxxxxx, special Iowa tax counsel for the Seller and JDCC, in form
and substance satisfactory to counsel for the Underwriters, to the
effect that the information in the Preliminary Prospectus and the
Prospectus under "Certain Iowa Tax Considerations," to the extent that
it constitutes matters of Iowa law or Iowa legal conclusions, has been
reviewed by such counsel and is correct in all material respects.
(5) The favorable opinion, dated as of the Closing Date, of
Xxxxx, Xxxxxx & Xxxxxx, counsel for the Indenture Trustee, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Indenture Trustee, at the time of its execution and
delivery of the Indenture, had full power and authority to
execute and deliver the Indenture and has full power and
authority to perform its obligations thereunder.
(ii) The Indenture has been duly and validly authorized,
executed and delivered by the Indenture Trustee and, assuming due
authorization, execution and delivery thereof by the Trust,
constitutes the valid and binding obligation of the Indenture
Trustee enforceable against the Indenture Trustee in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
creditors' rights or by general principles of equity.
(iii) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Indenture Trustee before or by any
court, arbitrator, administrative agency or other governmental
authority which, if adversely decided, would materially and
adversely affect the ability of the Indenture Trustee to carry
out the transactions contemplated in the Indenture.
18
(iv) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the United States of America or
any state thereof was or is required for the execution, delivery
or performance by the Indenture Trustee of the Indenture.
(6) The favorable opinion, dated as of the Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner Trustee, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) U.S. Bank Trust National Association is duly formed and
validly existing as a national banking association in good
standing under the laws of the United States of America.
(ii) U.S. Bank Trust National Association has power and
authority to execute, deliver and perform the Trust Agreement and
to consummate the transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by U.S. Bank Trust National Association and
constitutes a legal, valid and binding obligation of U.S. Bank
Trust National Association, enforceable against U.S. Bank Trust
National Association, in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting creditors' rights, by general
principles of equity, or Delaware public policy on the
enforceability of provisions relating to indemnification and
rights of contribution.
(iv) Neither the execution, delivery and performance by U.S.
Bank Trust National Association of the Trust Agreement, nor the
consummation of the transactions contemplated thereby, nor
compliance with the terms thereof conflict with or result in a
breach of, or constitute a default under the provisions of, U.S.
Bank Trust National Association's articles of association or
by-laws or any law, rule or regulation of the United States of
America or the State of Delaware governing the trust powers of
U.S. Bank Trust National Association.
(v) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or
governmental agency or commission under the laws of the United
States of America governing the trust powers of U.S. Bank Trust
National Association or under the laws of the State of Delaware
is required by or with respect to U.S. Bank Trust National
Association for the valid execution and delivery of the Trust
Agreement, or for the validity or enforce-ability thereof, other
than the filing of the Certificate of Trust.
19
(7) The favorable opinion, dated as of the Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for the Trust, in
form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Trust has been duly formed and is validly existing
in good standing as a statutory trust under the Delaware
Statutory Trust Act, 12 Del. C. ss. 3801, et seq.
(ii) The Trust has the power and authority, pursuant to the
Trust Agreement and the Act, to execute, deliver and perform its
obligations under the Basic Documents to which it is a party, to
issue the Notes and the Certificate and to grant the Trust Estate
to the Indenture Trustee as security for the Notes. The Trust
Agreement authorizes the Trust to execute and deliver the Basic
Documents to which it is a party, to issue the Notes and the
Certificate and to grant the Trust Estate to the Indenture
Trustee as security for the Notes. The Trust has duly executed
and delivered the Basic Documents to which it is a party and the
Notes.
(iii) The Certificate has been validly issued and is
entitled to the benefits of the Trust Agreement.
(iv) The Trust Agreement is a legal, valid and binding
obligation of the Seller and the Owner Trustee, enforceable
against the Seller and the Owner Trustee, in accordance with its
terms.
(v) Each of the Financing Statements (as hereinafter
defined) is in an appropriate form for filing in the State of
Delaware and has been duly filed in the appropriate filing office
in the State of Delaware and the fees and documents taxes, if
any, payable in connection with the said filing of the Financing
Statements have been paid in full.
"Financing Statements" shall mean (i) the financing
statement on form UCC-1, naming JDCC as debtor and JDRI as
secured party, to be filed with the Secretary of State (Uniform
Commercial Code Section)(the "Division") on or before the Closing
Date (the "JDCC Financing Statement") and (ii) the financing
statement on form UCC-1, naming the Trust as debtor and the
Indenture Trustee as secured party, to be filed with the Division
on or before the Closing Date (the "Trust Financing Statement").
(vi) Under Article 9 of the Uniform Commercial Code as in
effect in the State of Delaware, 6 Del. C. ss. 9-101 et seq. (the
"DELUCC") (without regard to conflicts of laws principles), and
assuming that a security interest in all of JDCC's right, title
and interest in the Receivables has been validly transferred to
the Seller, upon the filing of the JDCC Financing Statement with
the Division, the Seller will have a perfected security interest
in that portion of the collateral described in Section 2.01
20
of the Purchase Agreement (the "JDCC Collateral") described in
the JDCC Financing Statement that may be perfected by filing of a
financing statement with the Division (the "JDCC Filing
Collateral") and the proceeds (as defined in Section 9-102(a)(64)
of the DELUCC) thereof. No refiling or other action is necessary
under the DELUCC in order to maintain the perfection of such
security interest, except for the filing of continuation
statements at five year intervals.
(vii) Under Article 9 of the DELUCC (without regard to
conflicts of laws principles), and assuming that the security
interest created by the Indenture in the Collateral (as defined
in the Indenture) has been duly created and has attached, upon
the filing of the Trust Financing Statement with the Division,
the Indenture Trustee will have a perfected security interest in
the Trust's rights in that portion of the Collateral, and the
proceeds thereof, described in the Trust Financing Statement that
may be perfected by filing a financing statement with the
Division (the "Trust Filing Collateral" and together with the
JDCC Filing Collateral, the "Filing Collateral") and the proceeds
(as defined in Section 9-102(a)(64) of the DELUCC) thereof. No
refiling or other action is necessary under the DELUCC in order
to maintain the perfection of such security interest, except for
the filing of continuation statements at five year intervals.
(viii) The search report obtained in connection with the
opinion, sets forth the proper filing office and the proper
debtor necessary to identify those Persons who under the DELUCC
have on file financing statements against the Trust covering the
Trust Filing Collateral as of the time of such search. Except for
the Indenture Trustee, the search report identifies no party who
has on file with the Division an effective financing statement
naming the Trust as debtor and describing the Trust Filing
Collateral prior to the final date of the time period covered by
such search.
(ix) Under ss. 3805(b) of the Delaware Statutory Trust Act,
12 Del. C. ss. 3801, et seq., no creditor of the
Certificateholder shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect
to, the property of the Trust except in accordance with the terms
of the Trust Agreement.
(x) Under the Delaware Statutory Trust Act, 12 Del. C. ss.
3801, et seq., the Trust is a separate legal entity and, assuming
that the Sale and Servicing Agreement conveys good title to the
Trust property to the Trust as a true sale and not as a security
arrangement, the Trust rather than the Certificateholder will
hold whatever title to the Trust property as may be conveyed to
it from time to time pursuant to the Sale and Servicing
Agreement, except to the extent that the Trust has taken action
to dispose of or otherwise transfer or encumber any part of the
Trust property.
21
(8) The favorable opinion, dated as of the Closing Date, of
Xxxxxx and Xxxxx LLP, special Texas counsel for the Seller and JDCC,
in form and substance satisfactory to counsel for the Underwriters, to
the effect that the lien of the Indenture Trustee in the Collateral
(including, without limitation, identifiable cash proceeds thereof and
any after acquired property acquired by the Issuing Entity prior to
the date any tax lien is filed) will be superior to any tax lien
arising in connection with any tax liability arising under Title 2 of
the Texas Tax Code (as revised), filed after the creation and
perfection of the lien of the Indenture Trustee in the Collateral.
(9) The favorable opinion, dated as of the Closing Date, of
Sidley Austin LLP, counsel for the Underwriters, with respect to the
issue and sale of the Securities, the Registration Statement, this
Agreement, the Preliminary Prospectus, the Prospectus and such other
related matters as the Underwriters may reasonably require.
(c) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement, the Prospectus and the Preliminary Prospectus, any
material adverse change in the financial condition of JDCC and its
subsidiaries considered as an enterprise, or in the results of operations
or business prospects of JDCC and its subsidiaries considered as an
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President, a
Vice President or the Treasurer or Assistant Treasurer of JDCC, on behalf
of each of JDCC and the Seller, dated as of the Closing Date, to the effect
that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as though expressly made at and as of Closing Time.
(d) At Closing Time, you shall have received from Deloitte & Touche
LLP a letter, dated as of the Closing Date, in the form heretofore agreed.
(e) At Closing Time, you shall have received from the Owner Trustee a
certificate signed by one or more duly authorized officers of the Owner
Trustee, dated as of the Closing Date, as to the due acceptance of the
Trust Agreement by the Owner Trustee and the due execution and delivery of
the Notes and Certificates delivered by the Owner Trustee in accordance
therewith and such other matters as you shall request.
(f) At the Closing Time, you shall have received from the Indenture
Trustee, an officer's certificate certifying that the information contained
in the Statement of Eligibility and Qualification (Form T 1) of the
Indenture Trustee under the Trust Indenture Act filed with the Registration
Statement is true and correct.
(g) At Closing Time, the Underwritten Notes shall be rated "A-1+," in
the case of the Class A-1 Notes and "AAA," in the case of the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes by Standard & Poor's a
division of The XxXxxx-Xxxx Companies, Inc., "P-1," in the case of the
Class A-1 Notes and "Aaa," in the case of the
22
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes by Xxxxx'x
Investors Service, Inc.
(h) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Seller and JDCC in connection with the issuance
and sale of the Underwritten Notes as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Seller and JDCC at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 7. Indemnification.
(a) As an inducement to the Underwriters to participate in the public
offering of the Underwritten Notes, the Seller and JDCC jointly and severally
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls an Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense to
which such Underwriter may become subject, under the Act or otherwise,
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be a part of the Registration
Statement pursuant to Rule 430B under the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Disclosure Package (or
any amendment or supplement thereto), the Prospectus (or any amendment or
supplement thereto) or in any Issuer Free Writing Prospectus or the
omission or alleged omission of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Seller by or on behalf
of any Underwriter through either Representative expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto), the Disclosure Package (or any amendment
or supplement thereto) or any Issuer Free Writing Prospectus, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as "Underwriters
Information" in the Pricing Agreement, or was made in reliance upon the
Form T-1 of the Indenture Trustee under the Indenture;
23
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Seller and JDCC; and
(iii) against any and all expense whatsoever (including the reasonable
fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission to the extent that any such
expense is not paid under (i) or (ii) above.
In no case shall the Seller or JDCC be liable under this indemnity
agreement with respect to any claim made against any Underwriter or any such
controlling person unless the Seller or JDCC shall be notified in writing of the
nature of the claim within a reasonable time after the assertion thereof, but
failure so to notify the Seller or JDCC shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. JDCC
shall be entitled to participate at its own expense in the defense, or if it so
elects within a reasonable time after receipt of such notice, to assume the
defense for any suit brought to enforce any such claim, but if JDCC elects to
assume the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in any suit so brought. In the event that JDCC
elects to assume the defense of any such suit and retains such counsel, the
Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Seller and/or JDCC, on the
one hand, and one or more Underwriters, on the other, and any such Underwriter
shall have been advised by counsel chosen by it and satisfactory to JDCC that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Seller or JDCC, JDCC shall not have the
right to assume the defense of such action on behalf of such Underwriter and
will reimburse such Underwriter and any person controlling such Underwriter as
aforesaid for the reasonable fees and expenses of any counsel retained by them,
it being understood that the Seller and JDCC shall not, in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) for all such Underwriters and controlling persons,
which firm shall be designated in writing by the Representatives. The Seller and
JDCC agree to notify the Representatives within a reasonable time of the
assertion of any claim against either of them, any of their officers or
directors or any person, if any, who controls the Seller or JDCC within the
meaning of Section 15 of the 1933 Act, in connection with the sale of the
Underwritten Notes.
(b) Each Underwriter, severally and not jointly, agrees that it will
indemnify and hold harmless the Seller and JDCC, and each of the officers of the
Seller who signs the Registration Statement and each of its directors and each
person, if any, who controls the Seller and JDCC within the meaning of Section
15 of the 1933 Act to the same extent as the foregoing indemnity
24
from the Seller and JDCC, but only with respect to statements or omissions made
in the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto), the Disclosure Package (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Seller by or on behalf
of such Underwriter through either Representative expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto), the Disclosure Package (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus; it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as "Underwriters Information" in the Pricing
Agreement. In case any action shall be brought against the Seller or JDCC or any
person so indemnified based on the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto), the
Disclosure Package (or any amendment or supplement thereto) or any Issuer Free
Writing Prospectus and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Seller and JDCC, and the Seller and JDCC and each person so indemnified shall
have the rights and duties given to the Underwriters, by the provisions of
subsection (a) of this Section.
SECTION 8. Contribution. If the indemnification provisions provided in
Section 7 should under applicable law be unenforceable or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Seller and the Underwriters from
the offering of the Underwritten Notes and also the relative fault of the Seller
and the Underwriters in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Seller and the Underwriters shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Seller and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
Prospectus, bear to the aggregate public offering price of the Underwritten
Notes. The relative fault shall be determined by reference to, among other
things, whether the indemnified party failed to give the notice required under
Section 7 including the consequences of such failure, and whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Seller or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct and prevent such statement or omission. The Seller,
JDCC and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 8. The amount paid or payable
by an indemnified party as a result of the losses, liabilities, claims, damages
or expenses (or actions in respect thereof) referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the
25
total price at which the Underwritten Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this Section 8 to contribute are several in proportion to their respective
underwriting obligations and not joint.
The obligations of the Seller and JDCC under this Section 8 shall be in
addition to any liability which the Seller and JDCC may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer who signs the Registration
Statement and each director of the Seller and to each person, if any, who
controls the Seller within the meaning of Section 15 of the 1933 Act.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement and
the Pricing Agreement or contained in certificates of officers of the Seller and
JDCC submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person thereof, or by or on behalf of the Seller and JDCC and
shall survive delivery of the Underwritten Notes to the Underwriters.
SECTION 10. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Seller and JDCC at any time at or prior to Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
material adverse change in the financial condition of JDCC and its subsidiaries
considered as one enterprise, or in the results of operations or business
prospects of JDCC and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business in the reasonable judgment of the
Representatives, or (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis, the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Underwritten Notes or to enforce
contracts for the sale of the Notes, or (iii) if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5 hereof.
SECTION 11. Default. If one or more of the Underwriters shall fail at
Closing Time to purchase the Underwritten Notes that it or they are obligated to
purchase under this Agreement
26
(the "Defaulted Underwritten Notes"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Underwritten Notes in such amounts as may be agreed upon and
upon the terms herein set forth. If, however, during such 24 hours the
Representatives shall not have completed such arrangements for the purchase of
all of the Defaulted Underwritten Notes, then:
(a) if the aggregate principal amount of Defaulted Underwritten Notes
does not exceed 10% of the aggregate principal amount of the Underwritten
Notes to be purchased pursuant to this Agreement, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Underwritten Notes
exceeds 10% of the aggregate principal amount of the Underwritten Notes to
be purchased pursuant to this Agreement, this Agreement shall terminate
without any liability on the part of any non-defaulting Underwriters or the
Seller or JDCC.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Seller or the Representatives shall have the right
to postpone the Closing Time for a period not exceeding seven days in order that
any required changes in the Registration Statement or the Prospectus or in any
other documents or arrangements may be effected.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to you shall be
directed to you at Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx and Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
10080, Attention: Xxxxxxx Xxxxxx. Notices to the Seller shall be directed to the
Seller at 0 Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention: Manager (with a
copy to Deere & Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000-0000,
Attention: Treasurer); notices to JDCC shall be directed to JDCC at Suite 000, 0
Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention: Manager (with a copy to Deere
& Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000-8098, Attention:
Treasurer).
SECTION 13. No Fiduciary Duty. The Seller and JDCC each acknowledge and
agree that the Seller, JDCC and its Affiliates each have arm's-length business
relationships with the Underwriters and their respective Affiliates that create
no fiduciary duty on the part of any Underwriter or any of its Affiliates in
connection with all aspects of the transactions contemplated by this Agreement,
and each such party expressly disclaims any fiduciary duty.
SECTION 14. Parties. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters, the Seller, JDCC,
and their respective
27
successors. Nothing expressed or mentioned in this Agreement or the Pricing
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or with respect to this Agreement or the
Pricing Agreement or any provision herein or therein contained. This Agreement
and the Pricing Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives and for the benefit of no other
person, firm or corporation. No purchaser of an Underwritten Note from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Seller and JDCC counterparts hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Seller and JDCC in accordance with its terms.
Very truly yours,
XXXX DEERE RECEIVABLES, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary
XXXX DEERE CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
CONFIRMED AND ACCEPTED, as of
the date first above written:
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANK OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
X.X. XXXXXX SECURITIES INC.
RBC CAPITAL MARKETS CORPORATION
By: DEUTSCHE BANK SECURITIES INC.,
as Representatives of the several Underwriters
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED
as Representatives of the several Underwriters
By: /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: Director
Exhibit A
JOHN DEERE OWNER TRUST 2006
XXXX DEERE RECEIVABLES, INC.
and
XXXX DEERE CAPITAL CORPORATION
Class A-1 5.36417% Asset Backed Notes
Class A-2 5.41% Asset Backed Notes
Class A-3 5.38% Asset Backed Notes
Class A-4 5.39% Asset Backed Notes
PRICING AGREEMENT
-----------------
June 13, 2006
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center, 10th Floor
New York, New York 10080
as Representatives of the Several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated June 13, 2006
(the "Underwriting Agreement") relating to the purchase by Deutsche Bank
Securities Inc. ("DBSI"), Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
Banc of America Securities LLC, BNP Paribas Securities Corp., X.X. Xxxxxx
Securities Inc. and RBC Capital Markets Corporation, severally and not jointly,
of the above-referenced Class A-1, Class A-2, Class A-3 and Class A-4 Notes (the
"Underwritten Notes"), the provisions of which are incorporated herein by
reference. Capitalized terms used but not defined herein have the meanings given
them in the Underwriting Agreement.
Subject to the terms and conditions of the Underwriting Agreement, the
Seller agrees with the Underwriters that the purchase price for the Underwritten
Notes to be paid by the Underwriters shall be the percentage of the principal
amount (which percentage is equal to 100% less the underwriting discount in the
case of the Class A-1 Notes, 99.994773% less the underwriting discount in the
case of the Class A-2 Notes, 99.997672% less the underwriting discount in the
case of the Class A-3 Notes and 99.977969% less the underwriting discount in the
case of the Class A-4 Notes) set forth below:
================================ ================= ================== ================= ================
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Underwriters A-1 Notes A-2 Notes A-3 Notes A-4 Notes
-------------------------------- ----------------- ------------------ ----------------- ----------------
Deutsche Bank Securities Inc. $ 69,750,000 $ 47,000,000 $103,500,000 $80,985,000
-------------------------------- ----------------- ------------------ ----------------- ----------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx 69,750,000 47,000,000 103,500,000 80,985,000
& Xxxxx Incorporated
-------------------------------- ----------------- ------------------ ----------------- ----------------
Banc of America Securities LLC 11,000,000 7,250,000 16,250,000 12,500,000
-------------------------------- ----------------- ------------------ ----------------- ----------------
BNP Paribas Securities Corp. 11,000,000 7,250,000 16,250,000 12,500,000
-------------------------------- ----------------- ------------------ ----------------- ----------------
X.X. Xxxxxx Securities Inc. 11,000,000 7,250,000 16,250,000 12,500,000
-------------------------------- ----------------- ------------------ ----------------- ----------------
RBC Capital Markets Corporation 11,000,000 7,250,000 16,250,000 12,500,000
-------------------------------- ----------------- ------------------ ----------------- ----------------
$183,500,000 $123,000,000 $272,000,000 $211,970,000
================================ ================= ================== ================= ================
===================================================== ================= ================ ================
Percentage of
Underwritten Principal Underwriting
Notes Amount Discount Interest Rate
----------------------------------------------------- ----------------- ---------------- ----------------
Class A-1 Notes 100.000000% 0.070% 5.36417%
----------------------------------------------------- ----------------- ---------------- ----------------
Class A-2 Notes 99.994773% 0.100% 5.41%
----------------------------------------------------- ----------------- ---------------- ----------------
Class A-3 Notes 99.997672% 0.150% 5.38%
----------------------------------------------------- ----------------- ---------------- ----------------
Class A-4 Notes 99.977969% 0.200% 5.39%
===================================================== ================= ================ ================
The Seller also agrees with the Underwriters that:
The Trust is the John Deere Owner Trust 2006.
The initial principal amount of the Certificates will be $12,040,248.
The Owner Trustee will be U.S. Bank Trust National Association.
The Indenture Trustee will be The Bank of New York.
The Class A-1 final Payment Date shall be July 13, 2007, the Class A-2
final Payment Date shall be November 17, 2008, the Class A-3 final Payment Date
shall be July 15, 2010 and the Class A-4 final Payment Date shall be June 17,
2013.
"Applicable Time" with respect to the Underwritten Notes means 2:30
p.m. on June 13, 2006.
The date of the Preliminary Prospectus Supplement is June 12, 2006.
For purposes of the Underwriting Agreement, the only information
furnished to the Seller by any Underwriter through either Representative for use
in the Preliminary Prospectus and the Prospectus consists of the following
information in the Preliminary Prospectus Supplement and the Prospectus
Supplement furnished on behalf of each Underwriter, which shall constitute
"Underwriters Information": (i) the concession and reallowance figures appearing
in the second paragraph under the heading "Underwriting" in the Prospectus
Supplement, (ii) the second and
2
third sentences contained in the fourth paragraph under the heading
"Underwriting" in the Preliminary Prospectus Supplement and the Prospectus
Supplement, (iii) the information contained in the tenth through fourteenth
paragraphs under the heading "Underwriting" in the Preliminary Prospectus
Supplement and the Prospectus Supplement and (iv) the second sentence under the
heading "Risk Factors-Limited Ability to Resell Notes" in the Preliminary
Prospectus Supplement and the Prospectus Supplement.
3
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Seller and JDCC in accordance with its terms.
Very truly yours,
XXXX DEERE RECEIVABLES, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary
XXXX DEERE CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
CONFIRMED AND ACCEPTED, as of
the date first above written:
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANK OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
X.X. XXXXXX SECURITIES INC.
RBC CAPITAL MARKETS CORPORATION
By: DEUTSCHE BANK SECURITIES INC.,
as Representative of the Several Underwriters
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
By /s/ Xxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Representative of the Several Underwriters
By /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Director
4
EXHIBIT A
Filed pursuant to Rule 433(d)
Registration Statement No. 000-000000-00
FINAL TERM SHEET, dated June 13, 2006
$790,470,000
Xxxx Deere Owner Trust 2006
Issuing Entity
$ 183,500,000 Class A-1 5.36417% Asset Backed Notes
$ 123,000,000 Class A-2 5.41% Asset Backed Notes
$ 272,000,000 Class A-3 5.38% Asset Backed Notes
$ 211,970,000 Class A-4 5.39% Asset Backed Notes
Xxxx Deere Receivables, Inc., Seller and Depositor
Xxxx Deere Capital Corporation, Sponsor and Servicer
Class A-1 Class A-2 Class A-3 Class A-4
Notes(3) Notes(3) Notes(3) Notes(3)
-------------------- --------------------- -------------------- ----------------------
Principal
Amount......... $183,500,000 $123,000,000 $272,000,000 $211,970,000
Per Annum
Interest
Rate........... 5.36417% 5.41% 5.38% 5.39%
Final
Scheduled
Payment
Date........... July 13, 2007 November 17, 2008 July 15, 2010 June 17, 2013
Initial Public
Offering
Price ......... 100.000000% 99.994773% 99.997672% 99.977969%
Ratings (Xxxxx'x/S&P)
............... Prime-1/A-1+ Aaa/AAA Aaa/AAA Aaa/AAA
Payment Date.... Monthly, beginning Monthly, beginning Monthly, beginning Monthly, beginning
July 17, 2006 July 17, 2006 July 17, 2006 July 17, 2006
(subject to the (subject to the (subject to the (subject to the
business day business day business day business day
convention) convention) convention) convention)
Weighted Average
Life(1) 0.44 1.00 2.00 3.51(2)
CUSIP............. 000000XX0 000000XX0 000000XX0 000000XX0
(1) Pricing speed: 15% CPR
(2) Pricing speed: 15% CPR (with a 10% clean-up call)
(3) Subject to the considerations set forth in the preliminary prospectus, the
Notes are generally eligible for purchase by or on behalf of employee benefit
plans and other similar retirement plans and arrangements that are subject to
ERISA or to Section 4975 of the Code.
Trade Date: June 13, 2006.
Expected Settlement Date: June 20, 2006.
Initial Note Value: $802,510,248 (discount rate:7.45%)
Certificate Principal Amount: $12,040,248
Initial Reserve Account Deposit: $10,031,378
5
Deutsche Bank Securities Xxxxxxx Xxxxx & Co.
Banc of America Securities LLC
BNP Paribas
JPMorgan
RBC Capital Markets
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that registration statement
and other documents the Depositor has filed with the SEC for more complete
information about the Depositor, the issuing entity, and this offering. You may
get these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the Depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling toll-free 0-000-000-0000.
This free writing prospectus does not contain all information that is
required to be included in the base prospectus and the prospectus supplement.
6
Exhibit B
1. Information contained in the Final Term Sheet included as Exhibit A to the
Pricing Agreement.
2. Other Issuer Free Writing Prospectus: None.
3. Oral information not otherwise contained in the Final Term Sheet: None.
7
