EXHIBIT 4.1
PURCHASE AGREEMENT, dated as of November 1, 2001, 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 2001 (the "Trust"), which Trust will issue Asset Backed
Certificate representing fractional undivided interests in, and Class A-1 2.19%
Asset Backed Notes, Class A-2 2.56% Asset Backed Notes, Class A-3 3.26% Asset
Backed Notes and Class A-4 3.78% 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 November 8, 2001.
"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 November 1, 2001,
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 dated October 29, 2001 and the
Prospectus Supplement, dated November 1, 2001, 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 November 1, 2001, 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.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
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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 $ 895,360,864.19 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,
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 jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualification.
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(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.
(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
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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 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
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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 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.
(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
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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 final scheduled
payment date due not later than September 22, 2007; the weighted average
remaining term of the Receivables is 39.54 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.
(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.
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(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 39.77% 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 2.05% 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 0.69% 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 55.21% 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 2.28% 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 1.18% and 1.20% of the initial aggregate balance of all
Receivables.
(xxviii) Concentrations. As of the Closing Date, no single obligor
represents more than 1.50% 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.
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
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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:
(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.
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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 of the United States of
America and (b) and chief executive office in one of the states of the United
States of America, except in each case 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
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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); 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) 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 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,
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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 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, (000) 000-0000; (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, Director, Corporate Finance, (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 Ratings Services, a division of
XxXxxx-Xxxx Inc., 00 Xxxxx Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset
12
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 2.02.
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.
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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:
---------------------------------------
Secretary
14
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as
of November 1, 2001 (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 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 November 8, 2001.
XXXX DEERE CAPITAL CORPORATION
By:
---------------------------------------
Secretary
SCHEDULE A
Schedule of Receivables
(Delivered to the Trust at Closing)
