Exhibit 99.2
EXECUTION COPY
PURCHASE AGREEMENT, dated as of June 15, 2006, 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, construction and forestry 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 2006 (the "Trust"), which Trust will issue the Certificate
representing fractional undivided interests in, and Class A - 1 5.36417% Asset
Backed Notes, Class A - 2 5.41% Asset Backed Notes, Class A - 3 5.38% Asset
Backed Notes and Class A - 4 5.39% 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.
"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 June 20, 2006.
"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 June 15, 2006,
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.
"Preliminary Prospectus" shall mean the Preliminary Prospectus
Supplement dated June 12, 2006 relating to the Notes.
"Prospectus" shall mean Prospectus Supplement dated June 13, 2006
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 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 June 15, 2006, 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.
2
"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
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 $789,327,149.52 the
Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, whether now owned or hereafter acquired, 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 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.
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 LLP, 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.
3
(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 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.
4
(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) 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 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 sufficient to fully amortize
5
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.
(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 and for 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.
6
(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. There is only one original executed copy of
each Receivable.
(xvii) Maturity of Receivables. Each Receivable has a scheduled
maturity date not later than May 28, 2012; the weighted average remaining term
of the Receivables is 52.54 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.
7
(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) Tangible Chattel Paper. Each Receivable constitutes
"tangible 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 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 and rounded to the nearest tenth, Receivables having an
aggregate balance equal to approximately 53.46% 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 2.42% 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 0.89% 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 40.94% 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 2.29% of the aggregate balance of all Receivables had scheduled payments
which occur at various intervals other than intervals described above.
(xxvi) Interest Accruing. Each Receivable is, as of the Cut-off
Date, accruing interest.
(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 0.46% and 0.83% 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.
8
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. At the Closing, the Seller shall deliver
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:
(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 Purchaser shall have
performed all obligations to be performed by it hereunder on or prior to the
Closing Date.
9
(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, jurisdiction of organization 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.
SECTION 5.03 Jurisdiction of Incorporation, Chief Executive Office,
etc. During the term of the Receivables, the Seller will maintain its (a)
jurisdiction of incorporation in one of the States and (b) chief executive
office in one of the States, except in each case Louisiana or Vermont.
10
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) (xxiv) and (xxv); and 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 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
11
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 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 any class of the Notes, such amendment shall become effective
with the consent of the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes; provided further that any solicitation of
such consent shall disclose the downgrading or withdrawal that would result from
such amendment. This Agreement may also be amended 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 Preliminary Prospectus and 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 Preliminary Prospectus
and 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 requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller, to Xxxx Deere Capital Corporation, Xxxxx
000, 0 Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000, Attention: Manager, (775)
786-5527, with a copy to Deere & Company, Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000, Attention: Treasury Department, Assistant Treasurer, (000) 000-0000; (b)
in the case of the Purchaser, to Xxxx Deere Receivables, Inc., 0 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, 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
12
Department, Assistant Treasurer, (000) 000-0000; (c) in the case of Moody's, to
Xxxxx'x Investors Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; and (d) in the case of Standard & Poor's, to Standard
& Poor's, a division of The XxXxxx-Xxxx Companies Inc., 00 Xxxxx Xxxxxx (00xx
Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance
Department; 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 2.03.
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.
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: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary
XXXX DEERE CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as
of June 15, 2006 (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 the Cut-off 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 June 20, 2006.
XXXX DEERE CAPITAL CORPORATION
By:
---------------------------------
Name:
Title:
SCHEDULE A
Schedule of Receivables
(Delivered to the Trust at Closing)
