EXHIBIT 4.1
PURCHASE AGREEMENT, dated as of May 15, 1999, between XXXX
DEERE CAPITAL CORPORATION, a Delaware corporation (the
"Seller"), and XXXX DEERE RECEIVABLES, INC., a Nevada
corporation (the "Purchaser").
WHEREAS, Deere & Company and other affiliates of the
Seller have purchased in the ordinary course of business
certain agricultural and construction equipment retail
installment sale and loan contracts secured by new and used
agricultural equipment and construction equipment and, in
turn, have sold such contracts to the Seller on a daily basis
pursuant to intercompany agreements; and
WHEREAS, the Seller and the Purchaser wish to set forth
the terms pursuant to which the Receivables (as hereinafter
defined) are to be sold by the Seller to the Purchaser, which
Receivables will be transferred by the Purchaser, pursuant to
the Sale and Servicing Agreement (as hereinafter defined), to
Xxxx Deere Owner Trust 1999-A (the "Trust"), which Trust will
issue Asset Backed Certificate representing fractional
undivided interests in, and Class A-1 4.9988% Asset Backed
Notes, Class A-2 5.466% Asset Backed Notes, Class A-3 5.94%
Asset Backed Notes, Class A-4 6.12% Asset Backed Notes and
Class B 6.10% Asset Backed Notes collateralized by, such
Receivables and the other property of the Trust.
NOW, THEREFORE, in consideration of the foregoing, other
good and valuable consideration and the mutual terms and
covenants contained herein, the parties hereto agree as
follows:
ARTICLE I
Certain Definitions
Capitalized terms not defined in this Agreement shall have
the meaning set forth in the Sale and Servicing Agreement. As
used in this Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural
forms of the terms defined):
"Affiliate" means, with respect to any specified Person,
any other Person controlling or controlled by or under common
control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified
Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlled by" and "controlling" have meanings
correlative to the foregoing.
"Agreement" shall mean this Purchase Agreement, as the
same may be amended, modified or supplemented from time to
time.
"Assignment" shall mean the document of assignment
attached to this Agreement as Exhibit A.
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"Basic Documents" has the meaning given such term in the
Indenture.
"Certificate" shall have the meaning assigned to the term
"Certificate" in the Trust Agreement.
"Closing Date" shall mean May 27, 1999.
"Collections" shall mean all amounts collected by the
Servicer (from whatever source other than any amounts
collected in respect of dealer reserves) on or with respect to
the Receivables other than Purchased Receivables and
Liquidated Receivables.
"Indenture" shall mean the Indenture, dated as of May 15,
1999, between the Trust and The Bank of New York, as trustee,
as the same may be amended, modified or supplemented from time
to time.
"Person" means any individual, corporation, limited
liability company, estate, partnership, joint venture,
association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Prospectus" shall mean the Prospectus and Prospectus
Supplement, each dated May 20, 1999, relating to the Notes.
"Purchaser" shall mean Xxxx Deere Receivables, Inc., a
Nevada corporation, its successors and assigns.
"Receivable" shall mean any Contract listed on Schedule A
(which Schedule may be in the form of microfiche).
"Repurchase Event" shall have the meaning specified in
Section 6.02.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of May 15, 1999, among the
Trust, the Purchaser and the Seller, as the same may be
amended, modified or supplemented from time to time.
"Sales Branches" means the equipment sales branches and
sales regions in the United States operated by Deere &
Company, a Delaware corporation, and its wholly-owned
subsidiaries.
"Schedule of Receivables" shall mean the list of
Receivables annexed hereto as Schedule A.
"Seller" shall mean Xxxx Deere Capital Corporation, a
Delaware corporation, its successors and assigns.
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"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant
jurisdiction, as amended from time to time.
ARTICLE II
Conveyance of Receivables
SECTION 2.01. Conveyance of Receivables. In
consideration of the Purchaser's delivery to or upon the order
of the Seller of $760,071,023.00, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (subject to the obligations
herein):
(a) all right, title and interest of the Seller in and
to the Receivables, and all monies due thereon on and after
the Cutoff Date;
(b) the interest of the Seller in the security
interests in the Financed Equipment granted by Obligors
pursuant to the Receivables and any other interest of the
Seller in such Financed Equipment;
(c) the interest of the Seller in any proceeds with
respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed
Equipment or Obligors; and
(d) the proceeds of any and all of the foregoing.
SECTION 2.02. The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at
the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 on the Closing Date, simultaneously with
the closings under (a) the Sale and Servicing Agreement, (b)
the Trust Agreement and (c) the Indenture.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants to
the Seller as of the date hereof and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser is
duly organized, validly existing in good standing under the
laws of the State of Nevada, and has the power and authority
to own its properties and to conduct the business in which it
is currently engaged, and had at all relevant times, and has,
the power, authority and legal right to acquire, own and sell
the Receivables.
(b) Due Qualification. The Purchaser is duly qualified
to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals, in all
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jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualification.
(c) Power and Authority. The Purchaser has the power
and authority to execute and deliver this Agreement and to
carry out its terms and the execution, delivery and
performance of this Agreement have been duly authorized by the
Purchaser by all necessary corporate action.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof do not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Purchaser, or any indenture,
agreement or other instrument to which the Purchaser is a
party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument
(other than the Sale and Servicing Agreement and the
Indenture); nor violate any law or, to the best of the
Purchaser's knowledge, any order, rule or regulation
applicable to the Purchaser of any court or of any federal or
state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Purchaser or its properties.
(e) No Proceedings. There are no proceedings or
investigations pending or, to the Purchaser's best knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties which (i)
assert the invalidity of this Agreement, (ii) seek to prevent
the consummation of any of the transactions contemplated by
this Agreement or (iii) seek any determination or ruling that
might materially and adversely affect the performance by the
Purchaser of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.02. Representations and Warranties of the
Seller.
(a) The Seller hereby represents and warrants to the
Purchaser as of the date hereof and as of the Closing Date:
(i) Organization and Good Standing. The Seller is
duly organized, validly existing in good standing under the
laws of the State of Delaware, and has the power and authority
to own its properties and to conduct the business in which it
is currently engaged, and had at all relevant times, and has,
the power, authority and legal right to acquire and own the
Receivables.
(ii) Power and Authority. The Seller has the power
and authority to execute and deliver this Agreement and to
carry out its terms; the Seller has full power and authority
to sell and assign the property sold and assigned to the
Purchaser hereby and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action;
and the execution, delivery and performance of this Agreement
have been duly authorized by the Seller by all necessary
corporate action.
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(iii) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof neither conflict with, result
in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of the
Seller, or any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); nor
violate any law or, to the best of the Seller's knowledge, any
order, rule or regulation applicable to the Seller of any
court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties.
(iv) No Proceedings. To the Seller's best
knowledge, there are no proceedings or investigations pending,
or threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties which
(A) assert the invalidity of this Agreement, (B) seek to
prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seek any determination
or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement.
(b) The Seller makes the following representations and
warranties as to the Receivables on which the Purchaser relied
in accepting the Receivables. The parties hereto acknowledge
that the representations and warranties below require the
Seller to monitor conditions that it may not have the ability
to monitor. Accordingly, wherever the Seller makes, or is
deemed to make, a representation that it cannot monitor, such
representation shall be made as if prefaced with the phrase
"to the best of the Seller's knowledge"; provided, however,
that the determination as to whether a Repurchase Event has
occurred pursuant to Section 6.02 shall be made without
reliance on the phrase described above. Except as provided
below, such representations and warranties speak as of the
execution and delivery of this Agreement but shall survive the
sale, transfer and assignment of the Receivables to the
Purchaser and the subsequent assignments and transfers of the
Receivables pursuant to the Sale and Servicing Agreement and
pursuant to the Indenture:
(i) Characteristics of Receivables. Each
Receivable (A) was originated in the United States of America
by the Sales Branches in the ordinary course of business or
was originated by a Dealer in the ordinary course of business,
in each case in connection with the retail sale by a Dealer of
Financed Equipment in the ordinary course of such Dealer's
business, was fully and properly executed by the parties
thereto, was purchased by the Seller from such Sales Branch or
such Dealer under an existing agreement with the Sales
Branches or the Dealers, as the case may be, and was validly
assigned by such Sales Branch or Dealer, as the case may be,
to the Seller in accordance with its terms, (B) has created a
valid, subsisting and enforceable first priority security
interest in favor of the Seller in the Financed Equipment,
which security interest is assignable by the Seller to the
Purchaser, by the Purchaser to the Issuer and by the Issuer to
the Indenture Trustee, (C) contains customary and enforceable
provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of
the benefits of the security and (D) provides for fixed
payments on a periodic basis, yields interest at a fixed rate
and is prepayable without premium or penalty at any time. The
fixed payments provided for are
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sufficient to amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set
forth in Schedule A to this Agreement is true and correct in
all material respects as of the opening of business on the
Cut-off Date and no selection procedures believed to be
adverse to the Noteholders or the Certificateholder were
utilized in selecting the Receivables. The computer tape
regarding the Receivables made available to the Purchaser and
its assigns is true and correct in all respects.
(iii) Compliance with Law. Each Receivable and the
sale of the Financed Equipment complied at the time it was
originated or made and at the execution of this Agreement
complies in all material respects with all requirements of
applicable Federal, state and local laws and regulations
thereunder, including usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act,
the Federal Reserve Board's Regulations B and S and other
equal credit opportunity and disclosure laws.
(iv) Binding Obligations. Each Receivable
represents the genuine, legal, valid and binding payment
obligation in writing of the Obligor, enforceable by the
holder thereof in accordance with its terms, subject to
bankruptcy, insolvency and other laws relating to the
enforcement of creditors' rights generally and to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). Such
enforceability has not been and is not adversely affected by
whether or not the Seller was or is qualified to do business
in the state in which the Obligor was or is located.
(v) Security Interest in Financed Equipment.
Immediately prior to the sale, assignment and transfer
thereof, each Receivable shall be secured by a validly
perfected first security interest in the Financed Equipment in
favor of the Seller as secured party or all necessary and
appropriate actions have been commenced that would result in
the valid perfection of a first security interest in the
Financed Equipment in favor of the Seller as secured party.
(vi) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed
Equipment been released from the lien granted by the related
Receivable in whole or in part. No Receivable is rescindable
on the basis of whether or not the Seller is qualified to do
business in the state in which the Obligor is located.
(vii) No Waiver. No provision of a Receivable has
been waived.
(viii) No Amendments. No Receivable has been
amended such that the amount of the Obligor's Scheduled
Payments has been increased except for increases resulting
from the inclusion of any premium for forced-placed physical
damage insurance covering the Financed Equipment.
(ix) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or threatened with
respect to any Receivable.
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(x) No Liens. No liens or claims have been filed
for work, labor or materials relating to any Financed
Equipment that are liens prior to, or equal or coordinate
with, the security interest in the Financed Equipment granted
by the Receivable.
(xi) No Default. No Receivable has a payment that
is more than 89 days overdue as of the Cut-off Date and,
except as permitted in this paragraph, no default, breach,
violation or event permitting acceleration under the terms of
any Receivable has occurred and is continuing; and (except for
payment defaults continuing for a period of not more than 89
days) no continuing condition that with notice or the lapse of
time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable has
arisen; and the Seller has not waived and shall not waive any
of the foregoing.
(xii) Insurance. The Seller, in accordance with
its customary procedures, has determined that the Obligor has
obtained physical damage insurance covering the Financed
Equipment and under the terms of the Receivable the Obligor is
required to maintain such insurance.
(xiii) Title. It is the intention of the Seller
that the transfer and assignment herein contemplated
constitute a sale of the Receivables from the Seller to the
Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of
the filing of a bankruptcy petition by or against the Seller
under any bankruptcy law. Immediately prior to the transfer
and assignment herein contemplated, the Seller has good and
marketable title to each Receivable free and clear of all
Liens, encumbrances, security interests and rights of others
and, immediately upon the transfer thereof, the Purchaser
shall have good and marketable title to each Receivable, free
and clear of all Liens, encumbrances, security interests and
rights of others; and the transfer has been perfected under
the UCC.
(xiv) Lawful Assignment. No Receivable has been
originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such
Receivable or any Receivable under this Agreement, the Sale
and Servicing Agreement or the Indenture is unlawful, void or
voidable.
(xv) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Purchaser a
first perfected ownership interest in the Receivables have
been made.
(xvi) One Original. There is only one original
executed copy of each Receivable.
(xvii) Maturity of Receivables. Each Receivable
has a final scheduled payment date due not later than May 1,
2005; the weighted average remaining term of the Receivables
is 41.1 months as of the Cut-off Date.
(xviii) Location of Receivable Files. The
Receivable Files are kept at the location listed in Schedule 1
hereto.
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(xix) Outstanding Principal Balance. As of the
Cut-off Date, each Receivable has an outstanding principal
balance of at least $500.
(xx) No Bankruptcies. No Obligor on any Receivable
as of the Cut-off Date was noted in the related Receivable
File as having filed for bankruptcy.
(xxi) No Repossessions. No Financed Equipment
securing any Receivable is in repossession status.
(xxii) Chattel Paper. Each Receivable constitutes
"chattel paper" within the meaning of the UCC of the State of
Nevada and the State of Delaware.
(xxiii) U.S. Obligors. None of the Receivables is
due from any Person which does not have a mailing address in
the United States of America.
(xxiv) Agreement. The representations and
warranties in this Agreement are true.
(xxv) Payment Frequency. As of the Cut-off Date
and as shown on the books of the Seller and rounded to the
nearest tenth, Receivables having an aggregate balance equal
to approximately 39.99% of the aggregate balance of all
Receivables had annual scheduled payments; as of the Cut-off
Date and as shown on the books of the Seller, Receivables
having an aggregate balance equal to approximately 2.04% of
the aggregate balance of all Receivables had semi-annual
scheduled payments; as of the Cut-off Date and as shown on the
books of the Seller, Receivables having an aggregate balance
equal to approximately 0.44% of the aggregate balance of all
Receivables had quarterly scheduled payments; as of the Cut-
off Date and as shown on the books of the Seller, Receivables
having an aggregate balance equal to approximately 57.54% of
the aggregate balance of all Receivables had monthly scheduled
payments; and as of the Cut-off Date and as shown on the books
of the Seller, Receivables having an aggregate balance equal
to 0.0% of the aggregate balance of all Receivables had
scheduled payments which occur at various intervals during the
calendar year other than intervals described above and/or
which have various scheduled payment amounts.
(xxvi) Interest Accruing. Each Receivable is, as
of the Cut-off Date, accruing interest.
(xxvii) Sole Receivables. As of the Closing Date,
the Receivables listed in Schedule A are the only contracts
owned by the Seller.
(xxviii) Certificate of Title. As of the Closing
Date, the only states which may require a certificate of title
in order to perfect a security interest in the Financed
Equipment are Massachusetts and New Jersey, which respectively
constitute approximately 1.16% and 0.84% of the initial
aggregate balance of all Receivables.
(xxix) Concentrations. As of the Closing Date, no
single obligor represents more than 1.50% of the initial
aggregate balance of all Receivables.
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(xxx) Normal Course of Business. The Receivables
were acquired by the Seller in accordance with its normal
underwriting procedures.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to the Obligation of the
Purchaser. The obligation of the Purchaser to purchase the
Receivables is subject to the satisfaction of the following
conditions:
(a) Representations and Warranties True. The
representations and warranties of the Seller hereunder shall
be true and correct on the Closing Date with the same effect
as if then made, and the Seller shall have performed all
obligations to be performed by it hereunder on or prior to the
Closing Date.
(b) Computer Files Marked. The Seller shall, at its
own expense, on or prior to the Closing Date indicate in its
computer files that the Receivables have been sold to the
Purchaser pursuant to this Agreement and shall deliver to the
Purchaser the Schedule of Receivables certified by the
Chairman, the President, a Vice President or the Treasurer of
the Seller to be true, correct and complete.
(c) Documents to Be Delivered by the Seller at the
Closing.
(i) The Assignment. At the Closing, the Seller
will execute and deliver the Assignment. The Assignment shall
be substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller shall record and file, at its own
expense, a UCC-1 financing statement in each jurisdiction in
which required by applicable law, executed by the Seller, as
seller or debtor, and naming the Purchaser, as purchaser or
secured party, describing the Receivables and the other
property included in the Owner Trust Estate as collateral,
meeting the requirements of the laws of each such jurisdiction
and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of such Receivables to the
Purchaser. The Seller shall deliver a file-stamped copy, or
other evidence satisfactory to the Purchaser of such filing,
to the Purchaser on or prior to the Closing Date.
(iii) Other Documents. Such other documents as the
Purchaser may reasonably request.
(d) Other Transactions. The transactions contemplated
by the Sale and Servicing Agreement to be consummated on the
Closing Date shall be consummated on such date.
SECTION 4.02. Conditions to Obligation of the Seller.
The obligation of the Seller to sell the Receivables to the
Purchaser is subject to the satisfaction of the following
conditions:
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(a) Representations and Warranties True. The
representations and warranties of the Purchaser hereunder
shall be true and correct on the Closing Date with the same
effect as if then made, and the Seller shall have performed
all obligations to be performed by it hereunder on or prior to
the Closing Date.
(b) Receivables Purchase Price. On the Closing Date,
the Purchaser shall have delivered to the Seller the purchase
price specified in Section 2.01.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Purchaser as follows; provided,
however, that to the extent that any provision of this Article
conflicts with any provision of the Sale and Servicing
Agreement, the Sale and Servicing Agreement shall govern:
SECTION 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing
statements and continuation statements and any other necessary
documents covering the right, title and interest of the
Purchaser in and to the Receivables and the other property
included in the Owner Trust Estate to be promptly filed, and
at all times to be kept, recorded, registered and filed, all
in such manner and in such places as may be required by law
fully to preserve and protect the right, title and interest of
the Purchaser hereunder to the Receivables and the other
property included in the Owner Trust Estate. The Seller shall
deliver to the Purchaser stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided
above, as soon as available following such recordation,
registration or filing. The Purchaser shall cooperate fully
with the Seller in connection with the obligations set forth
above and will execute any and all documents reasonably
required to fulfill the purpose of this paragraph.
(b) Name Change. Within 15 days after the Seller makes
any change in its name, identity or corporate structure which
would make any financing statement or continuation statement
filed in accordance with paragraph (a) above seriously
misleading within the applicable provisions of the UCC or any
title statute, the Seller shall give the Purchaser notice of
any such change, and no later than 5 days after the effective
date thereof, shall file such financing statements or
amendments as may be necessary to continue the perfection of
the Purchaser's interest in the property included in the Owner
Trust Estate.
SECTION 5.02. Other Liens or Interests. Except for the
conveyances hereunder and pursuant to the Sale and Servicing
Agreement, the Indenture and the other Basic Documents, the
Seller will not sell, pledge, assign or transfer to any
Person, or grant, create, incur, assume or suffer to exist any
Lien on, any interest in, to and under the Receivables, and
the Seller shall defend the right, title and interest of the
Purchaser in, to and under the Receivables against all claims
of third parties claiming through or under the Seller, any
Sales Branch or any Dealer; provided, however, that the
Seller's obligations under this Section shall terminate upon
the termination of the Trust pursuant to the Trust Agreement.
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SECTION 5.03. Chief Executive Office. During the term of
the Receivables, the Seller will maintain its chief executive
office in one of the states of the United States of America,
except Louisiana or Vermont.
SECTION 5.04. Indemnification. The Seller shall
indemnify the Purchaser for any liability as a result of the
failure of a Receivable to be originated in compliance with
all requirements of law and for any breach of any of its
representations and warranties contained herein, other than
the representations and warranties made pursuant to Section
3.02(b) for which the sole remedy shall be provided by Section
6.02; provided, however that the remedy provided by Section
6.02 shall not apply to the representations and warranties
contained in Section 3.02(b)(xxv); provided further that the
Seller shall indemnify the Purchaser for any liability arising
from a breach of Section 3.02(b)(iii). These indemnity
obligations shall be in addition to any obligation that the
Seller may otherwise have.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Obligations of Seller. The obligations of
the Seller under this Agreement shall not be affected by
reason of any invalidity, illegality or irregularity of any
Receivable.
SECTION 6.02. Repurchase Events. The Seller hereby
covenants and agrees with the Purchaser for the benefit of the
Purchaser, the Indenture Trustee, the Noteholders, the Owner
Trustee and the Certificateholder that as of the last day of
the second month following the discovery by or notice to the
Seller of the occurrence of a breach of any of the Seller's
representations and warranties contained in Section 3.02(b)
(other than the representations and warranties contained in
subsections 3.02(b)(xxiv) and (xxv)) in respect of a
Receivable shall constitute an event obligating the Seller to
repurchase such Receivable ("Repurchase Events"), at the
Purchase Amount from the Purchaser or from the Trust. The
repurchase obligation of the Seller shall constitute the sole
remedy to the Purchaser, the Indenture Trustee, the
Noteholders, the Owner Trustee or the Certificateholder
against the Seller with respect to any Repurchase Event.
SECTION 6.03. Purchaser Assignment of Repurchased
Receivables. With respect to all Receivables repurchased by
the Seller pursuant to this Agreement, the Purchaser shall
assign, without recourse, representation or warranty, to the
Seller all the Purchaser's right, title and interest in and to
such Receivables, and all security and documents relating
thereto.
SECTION 6.04. Trust. The Seller acknowledges and agrees
that (a) the Purchaser will, pursuant to the Sale and
Servicing Agreement, sell the Receivables to the Trust and
assign its rights under this Agreement to the Trust, (b) the
Trust will, pursuant to the Indenture, assign such Receivables
and such rights to the Indenture Trustee and (c) the
representations and warranties contained in this Agreement and
the rights of the Purchaser under this Agreement, including
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under Section 6.02, are intended to benefit the Trust, the
Certificateholder and the Noteholders. The Seller hereby
consents to all such sales and assignments.
SECTION 6.05. Amendment. This Agreement may be amended
from time to time by a written amendment duly executed and
delivered by the Seller and the Purchaser, without the consent
of the Noteholders or the Certificateholder, for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or
Certificateholder; provided, however, that such amendment will
not, in the Opinion of Counsel satisfactory to the Indenture
Trustee, materially and adversely affect the interest of any
Noteholder or the Certificateholder; provided further that 10
days' prior written notice of any such amendment be given to
each Rating Agency and, if a Rating Agency notifies the Owner
Trustee that such amendment will result in a downgrading or
withdrawal of the then current rating of the Class A Notes,
such amendment shall become effective with the consent of the
Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Class A Notes. This Agreement may
also be amended by the Seller and the Purchaser, with prior
written notice to the Rating Agencies, with the consent of the
holders of Notes evidencing at least a majority in the
Outstanding Amount of the Notes and the holder of the
Certificate for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of
Noteholders or the Certificateholder; provided, however, that
no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that are required
to be made for the benefit of Noteholders or the
Certificateholder or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment
or eliminate the consent of the Certificateholder, without the
consent of the holders of all the outstanding Notes and the
holder of the Certificate.
SECTION 6.06. Accountants' Letters. (a) Deloitte &
Touche LLP will review the characteristics of the Receivables
described in the Schedule of Receivables set forth as a
Schedule hereto and will compare those characteristics to the
information with respect to the Receivables contained in the
Prospectus; (b) the Seller will cooperate with the Purchaser
and Deloitte & Touche LLP in making available all information
and taking all steps reasonably necessary to permit such
accountants to complete the review set forth in clause (a)
above and to deliver the letters required of them under the
Underwriting Agreement; and (c) Deloitte & Touche LLP will
deliver to the Purchaser a letter, dated the date of the
Prospectus, in the form previously agreed to by the Seller and
the Purchaser, with respect to the financial and statistical
information contained in the Prospectus and with respect to
such other information as may be agreed in the form of letter.
SECTION 6.07. Waivers. No failure or delay on the part
of the Purchaser in exercising any power, right or remedy
under this Agreement or the Assignment shall operate as a
waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or
remedy.
SECTION 6.08. Notices. All demands, notices and
communications under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return
receipt
Page 12
requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller, to Xxxx Deere Capital
Corporation, Suite 600, First Interstate Bank Building, 0 Xxxx
Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention: Manager, (702)
786-5527; (b) in the case of the Purchaser, to Xxxx Deere
Receivables, Inc., First Xxxxxxxxxx Xxxx Xxxxxxxx, 0 Xxxx
Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention: Manager, Asset
Securitization, (000) 000-0000, with a copy to Deere &
Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: Treasury Department, Asset Securitization, (309)
765-4184; (c) in the case of Moody's, to Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; (d) in the case of Standard &
Poor's, to Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx Inc., 00 Xxxxx Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Surveillance Department;
and (e) in the case of Fitch, to Fitch IBCA, Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured
Finance Surveillance; or as to each of the foregoing, at such
other address as shall be designated by written notice to the
other parties.
SECTION 6.09. Costs and Expenses. The Seller will pay
all expenses incident to the performance of its obligations
under this Agreement and the Seller agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right,
title and interest in and to the Receivables and the
enforcement of any obligation of the Seller hereunder.
SECTION 6.10. Representations of the Seller and the
Purchaser. The respective agreements, representations,
warranties and other statements by the Seller and the
Purchaser set forth in or made pursuant to this Agreement
shall remain in full force and effect and will survive the
closing under Section 2.02.
SECTION 6.11. Confidential Information. The Purchaser
agrees that it will neither use nor disclose to any Person the
names and addresses of the Obligors, except in connection with
the enforcement of the Purchaser's rights hereunder, under the
Receivables, under the Sale and Servicing Agreement or under
the Indenture or any other Basic Document or as required by
any of the foregoing or by law.
SECTION 6.12. Headings and Cross-References. The various
headings in this Agreement are included for convenience only
and shall not affect the meaning or interpretation of any
provision of this Agreement. References in this Agreement to
Section names or numbers are to such Sections of this
Agreement.
SECTION 6.13. GOVERNING LAW. THIS AGREEMENT AND THE
ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6.14. Counterparts. This Agreement may be
executed in two or more counterparts and by different parties
on separate counterparts, each of which shall be an original,
but all of which together shall constitute one and the same
instrument.
Page 13
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers duly
authorized as of the date and year first above written.
XXXX DEERE RECEIVABLES, INC.
By: ____________________________
Assistant Secretary
XXXX DEERE CAPITAL CORPORATION
By: ____________________________
Assistant Secretary
Page 14
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase
Agreement, dated as of May 15, 1999 (the "Purchase
Agreement"), between the undersigned and Xxxx Deere
Receivables, Inc. (the "Purchaser"), the undersigned does
hereby sell, assign, transfer and otherwise convey unto the
Purchaser, without recourse, all right, title and interest of
the undersigned in and to (i) the Receivables and all monies
received thereon on and after Cutoff Date; (ii) the security
interest of the Seller in the Financed Equipment granted by
the Obligors pursuant to the Receivables; (iii) the interest
of the Seller in any proceeds from claims on any physical
damage, credit life or disability insurance policies relating
to the Financed Equipment or Obligors; and (iv) the proceeds
of any and all of the foregoing. The foregoing sale does not
constitute and is not intended to result in any assumption by
the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the
Receivables, Receivables Files, any insurance policies or any
agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the
undersigned contained in the Purchase Agreement and is to be
governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Purchase
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of May 27, 1999.
XXXX DEERE CAPITAL CORPORATION
By: _______________________________
Assistant Secretary
Page 15
SCHEDULE A
Schedule of Receivables
[Delivered to the Trust at Closing]
Page 16
SCHEDULE 1
Location of Receivable Files
First Xxxxxxxxxx Xxxx Xxxxxxxx
0 Xxxx Xxxxx Xxxxxx
Xxxx, Xxxxxx 00000
Page 17
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