EX-99.2 11 d747407dex992.htm FORM OF PURCHASE AGREEMENT
Exhibit 99.2
PURCHASE AGREEMENT, dated as of , 20XX, between XXXX DEERE CAPITAL CORPORATION, a Delaware corporation (the “Seller”), and XXXX DEERE RECEIVABLES, INC., a Nevada corporation (the “Purchaser”).
ARTICLE I
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.
“Basic Documents” has the meaning given to such term in the Indenture.
“Certificate” shall have the meaning assigned to the term “Certificate” in the Trust Agreement.
“Closing Date” shall mean , 20XX.
“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 , 20XX, between the Trust and U.S. Bank National Association, as trustee, as the same may be amended, modified or supplemented from time to time.
“JDCC System” shall mean the technology system used by the Seller comprised of proprietary and third-party software, hardware and other related technology materials that permit the origination of electronic contracts entered into in connection with the sale of equipment and evidenced by a record or records consisting of information stored in an electronic medium and maintained in such system.
“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.
“Preliminary Prospectus” shall mean the Preliminary Prospectus Supplement dated , 20XX relating to the Notes.
“Prospectus” shall mean the Prospectus Supplement dated , 20XX relating to the Notes.
“Purchaser” shall mean Xxxx Deere Receivables, Inc., a Nevada corporation, and its successors and assigns.
“Receivable” shall mean any Contract listed on Schedule A (which Schedule may be in the form of a computer disc).
“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 , 20XX 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.
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“Schedule of Receivables” shall mean the list of Receivables annexed hereto as Schedule A (which Schedule may be in the form of a computer disc).
“Seller” shall mean Xxxx Deere Capital Corporation, a Delaware corporation, and its successors and assigns.
“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
(a) all right, title and interest of the Seller in and to the Receivables, and all monies due thereon on and after the Cut-off 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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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 set forth 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) is secured by a validly perfected enforceable first priority purchase money security interest (as defined in the applicable UCC) 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 Issuing Entity and by the Issuing Entity to the Indenture Trustee and which security interest has priority over any security interest in the Financed
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Equipment granted in favor of the Seller or any of its affiliates, (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 or is non-interest bearing and is prepayable without premium or penalty at any time. The fixed payments provided for are sufficient to fully amortize the Amount Financed by maturity and pay finance charges at the Annual Percentage Rate over the original term of the Receivable.
(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 or disc 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 priority purchase money security interest (as defined in the applicable UCC) in the Financed Equipment in favor of the Seller as secured party or, in accordance with its customary standards, policies and servicing procedures, the Seller has taken all steps as are necessary to result in a validly perfected first priority purchase money security interest (as defined in the applicable UCC) 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.
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(viii) No Amendments. No Receivable has been amended such that the amount of the Obligor’s Scheduled Payments has been increased except for (1) increases due to a payment date change, (2) increases resulting from the inclusion of any premium for forced-placed physical damage insurance covering the Financed Equipment and (3) increases resulting from the addition of finance charges for the deferral of Scheduled Payments.
(ix) No Defenses. No right of rescission, setoff, counterclaim or defense has been asserted or threatened with respect to any Receivable.
(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 an absolute and irrevocable 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. (i) In the case of each Receivable constituting “tangible chattel paper” (as defined in Section 9-102(a)(78) of the UCC), there is only one original executed copy of each such Receivable and (ii) in the case of each Receivable constituting “electronic chattel paper” (as defined in Section 9-102(a)(31) of the UCC), the Servicer, as custodian, has “control” within the meaning of Section 9-105 of the UCC of each such Receivable.
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(xvii) Maturity of Receivables. Each Receivable has a scheduled maturity date not later than ; the weighted average remaining term of the Receivables is months as of the Cut-off Date.
(xviii) Location of Receivable Files. The Receivable Files are kept at 0 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxx 00000 (except that, in the case of any Receivable constituting “electronic chattel paper” (as defined in Section 9-102(a)(31) of the UCC), the “authoritative copy” (within the meaning of Section 9-105 of the UCC) of such Receivable is stored and maintained in the JDCC System).
(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. As of the Cut-off Date, no Financed Equipment securing any Receivable is in repossession status.
(xxii) Chattel Paper. Each Receivable constitutes either “electronic chattel paper” or “tangible chattel paper” within the meaning of Article 9 of the UCC of the State of Nevada and the State of Delaware or other applicable UCC.
(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 of the Seller in this Agreement are true.
(xxv) Payment Frequency. As of the Cut-off Date and as shown on the books of the Seller, Receivables having an aggregate balance equal to approximately % 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 % 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 % 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 % 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 approximately % of the aggregate balance of all Receivables had scheduled payments which occur at various intervals other than intervals described above.
(xxvi) Interest Accruing. Each interest-bearing Receivable is, as of the Cut-off Date, accruing interest.
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(xxvii) 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 % and % of the initial aggregate balance of all Receivables.
(xxviii) Concentrations. As of the Closing Date, no single obligor represents more than 1.00% of the initial aggregate balance of all Receivables.
(xxix) Normal Course of Business. The Receivables were acquired by the Seller in accordance with its normal underwriting procedures.
(xxx) JDCC System. The JDCC System and all related policies and procedures, as described in the factual assumptions set forth in the opinion of Shearman & Sterling LLP dated , 20XX addressing the issue of perfection by control of electronic chattel paper, are true and correct.
(xxxi) In the case of the Receivables constituting “electronic chattel paper” (as defined in Section 9-102(a)(31) of the UCC), the contracts that constitute or evidence the Receivables do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than Purchaser.
ARTICLE IV
(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.
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(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. At the Closing, the Seller shall deliver such other documents as the Purchaser may reasonably request.
ARTICLE V
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.
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ARTICLE VI
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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.
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SECTION 6.13 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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XXXX DEERE RECEIVABLES, INC. | ||||
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XXXX DEERE CAPITAL CORPORATION | ||||
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Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as of , 20XX (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, (i) all right, title and interest of the undersigned in and to the Receivables and all monies due thereon on and after the Cut-off Date; (ii) 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; (iii) 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 (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, Receivable 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 , 20XX.
XXXX DEERE CAPITAL CORPORATION | ||
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SCHEDULE A
Schedule of Receivables
(Delivered to the Trust at Closing)