EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
▇▇▇▇ DEERE OWNER TRUST 2XXX
▇▇▇▇ DEERE RECEIVABLES, INC.
and
▇▇▇▇ DEERE CAPITAL CORPORATION
Class A-1 XXXX% Asset Backed Notes
Class A-2 XXXX% Asset Backed Notes
Class A-3 XXXX% Asset Backed Notes
Class A-4 XXXX% Asset Backed Notes
UNDERWRITING AGREEMENT
----------------------
XXXX, 2XXXX
[NAME OF UNDERWRITERS]
Dear Sirs:
▇▇▇▇ Deere Receivables, Inc. (the "Seller") and ▇▇▇▇ Deere Capital
Corporation ("JDCC") confirm their agreement (the "Agreement") with [NAME OF
UNDERWRITERS] (collectively, the "Underwriters" or "you", which terms shall also
include any Underwriter substituted as provided in Section 11), for whom [XXXX]
and [XXXX] are acting as representatives (in such capacity [XXXX] and [XXXX] are
hereinafter referred to collectively, as the "Representatives" and each, a
"Representative") with respect to the public offering by you of the Asset Backed
Notes ("Notes") specified in the Pricing Agreement referred to below (the
"Underwritten Notes"). The Seller has authorized the public offering of up to
$XXXX principal amount of Notes. The Notes may be offered in various series,
and, within each series, in one or more classes, in one or more offerings on
terms determined at the time of sale (each such series, a "Series" and each such
class, a "Class"). Each such Series of the Notes may be issued by a Delaware
statutory trust (each, a "Trust") under a separate indenture (each, an
"Indenture") between the Trust and a trustee to be identified in the prospectus
supplement relating to such Series (the "Indenture Trustee"). Each Trust will
also issue Asset Backed Certificates ("Certificates") evidencing beneficial
interests in such Trust. Each Trust will be created pursuant to a separate trust
agreement (each, a "Trust Agreement") with respect to such Series between a
trustee to be identified in the prospectus supplement relating to such Series
(the "Owner Trustee") and the Seller, as depositor. The Notes and the
Certificates are collectively referred to as the "Securities". The assets of
each Trust will include agricultural and construction equipment retail
installment sale and loan contracts (the "Receivables") and various Trust
accounts. The Seller will purchase the Receivables relating to a Series of Notes
from JDCC pursuant to a separate Purchase Agreement and sell them to the related
Trust pursuant to a separate Sale and Servicing Agreement, pursuant to which
JDCC will service and administer such Receivables. The Indenture, the Trust
Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the
Administration Agreement relating to a Series of Notes are collectively referred
to herein as the "Basic Documents". Unless otherwise specified herein, reference
to the Trust and any Basic Document shall refer to the Trust that will issue the
Underwritten Notes and the related Basic Document, respectively. Capitalized
terms used but not defined herein have the meanings assigned to them in the
Indenture and the Trust Agreement.
Prior to the purchase and public offering of the Underwritten Notes by
the Underwriters, the Seller, JDCC and the Underwriters shall enter into an
agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Seller, JDCC and the
Underwriters and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Underwritten Notes will be governed by
this Agreement, as supplemented by the Pricing Agreement. From and after the
date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Seller has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-130966), containing
a preliminary prospectus and form of preliminary prospectus supplement relating
to the Notes and to the Certificates for the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
of the Notes from time to time in accordance with Rule 415 of the rules of the
Commission under the 1933 Act (the "1933 Act Regulations"), has filed such
amendments thereto, if any, and such amended preliminary prospectus and form of
preliminary prospectus supplement as have been required to the date hereof, and
will file such additional amendments thereto and such amended prospectuses and
forms of prospectus supplement as may hereafter be required pursuant to the 1933
Act and the 1933 Act Regulations. "Registration Statement" as of any time means
such registration statement (collectively), as amended, in the form then filed
by the Seller including any prospectus and/or prospectus supplement deemed or
retroactively deemed to be a part thereof that has not been superseded or
modified and all documents incorporated therein by reference, as from time to
time amended or supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act") and the 1933 Act. "Registration Statement" without
reference to a time means the Registration Statement as of the time of the first
contract of sale for the offering of the Underwritten Notes of a particular
Series, which time shall be considered the "effective date" of the Registration
Statement with respect to such Underwritten Notes. For purposes of this
definition, information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430B shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
"Preliminary Prospectus" means (i) the prospectus relating to the
Notes, that is included in the Registration Statement and (ii) the preliminary
prospectus supplement relating to the Underwritten Notes dated the date
specified in the Pricing Agreement for use prior to the time of first contract
of sale of the Underwritten Notes (together, with information referred to under
the caption "Static Pool Data" therein regardless of whether it is deemed a part
of the Registration
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Statement or Prospectus, the "Preliminary Prospectus Supplement"). "Prospectus"
means the (i) the prospectus relating to the Notes, that is included in the
Registration Statement and (ii) the prospectus supplement contemplated by
Section 4(a)(i) (together, with information referred to under the caption
"Static Pool Data" therein regardless of whether it is deemed a part of the
Registration Statement or Prospectus, a "Prospectus Supplement") that discloses
the public offering price and other final terms of such Underwritten Notes and
otherwise satisfies Section 10(a) of the 1933 Act. The Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Underwritten Notes to which it relates.
At or prior to the Applicable Time, the Seller had prepared the
Preliminary Prospectus. "Applicable Time" means the time agreed to by the Seller
and the Representatives and set forth in the Pricing Agreement, which shall be
the time immediately after the Seller and the Representatives agree on the
pricing terms of the Underwritten Notes.
SECTION 1. Representations and Warranties.
(a) Each of the Seller and JDCC represents and warrants to each
Underwriter as of the date hereof (such date being hereinafter referred to as
the "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the
Representation Date, complied, and the Prospectus as of the Closing
Date will comply, in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the Trust Indenture Act of
1939, as amended (the "1939 Act"). The Registration Statement, as of
the applicable effective date as to each part of the Registration
Statement pursuant to Rule 430B(f)(2) and any amendment thereto, did
not, and will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective,
as of its issue date and as of the Closing Date, did not, and will
not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The Preliminary Prospectus when filed complied in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the 1939 Act and as of the Applicable Time the
Preliminary Prospectus and the information listed on Exhibit B to the
Pricing Agreement, all considered together (collectively, the
"Disclosure Package"), did not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Notwithstanding anything to the
contrary contained herein, the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement, the Prospectus or the Disclosure Package made
in reliance upon and in conformity with information furnished to the
Seller in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus or the
Disclosure Package it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as "Underwriters Information" in the Pricing Agreement, or
to that part of the Registration
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Statement which shall constitute the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the Indenture Trustee.
(ii) The documents, if any, incorporated by reference in the
Prospectus, at the time, if any, they were or hereafter are filed with
the Commission during the period specified in Section 4(a)(vi),
complied and will comply, as the case may be, in all material respects
with the positions of the staff of the Commission pursuant to the 1934
Act and the rules and regulations thereunder, and, when read together
and with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time any amendments
thereto become effective and as to the applicable effective date as to
each part of the Registration Statement pursuant to Rule 430B(f)(2) or
hereafter during the period specified in Section 4(a)(vi), did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(iii) Deloitte & Touche LLP are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Since the respective dates as of which information is given
in the Registration Statement, the Prospectus and the Disclosure
Package, except as otherwise stated in or contemplated by the
Registration Statement, the Prospectus and the Disclosure Package (A)
there has not been any material adverse change in the financial
condition of the Seller or in the results of operations or business
prospects of the Seller, whether or not arising in the ordinary course
of business and (B) there have been no transactions entered into by
the Seller, other than transactions in the ordinary course of
business, which are material with respect to the Seller.
(v) Since the respective dates as of which information is given
in the Registration Statement, the Prospectus and the Disclosure
Package, except as otherwise stated in or contemplated by the
Registration Statement, the Prospectus and the Disclosure Package (A)
there has not been any material adverse change in the financial
condition of JDCC and its subsidiaries considered as one enterprise,
or in the results of operations or business prospects of JDCC and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and (B) there have been no
transactions entered into by JDCC or its subsidiaries, other than
transactions in the ordinary course of business, including borrowings
for the acquisition of receivables and other operations and other than
transactions which are not material in relation to JDCC and its
subsidiaries considered as one enterprise.
(vi) Each of the Seller and JDCC has been duly incorporated and
is validly existing as a corporation and is in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority to own, lease and operate its property and to conduct its
business as described in the Registration Statement, the Prospectus
and the Preliminary Prospectus.
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(vii) The execution and delivery of this Agreement, the Purchase
Agreement, the Sale and Servicing Agreement, the Trust Agreement and
the Administration Agreement and the consummation of the transactions
contemplated herein and therein, have been duly authorized by all
necessary corporate action of the Seller and JDCC, as applicable, and
will not result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Seller or JDCC, pursuant to any indenture,
loan agreement, contract or other agreement or instrument to which the
Seller or JDCC is a party or by which the Seller or JDCC may be bound
or to which any of the property or assets of the Seller or JDCC is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Seller or JDCC or, to the
best of its knowledge, any order, rule or regulation applicable to the
Seller or JDCC of any court or of any federal, state or other
regulatory authority or other governmental body having jurisdiction
over the Seller or JDCC.
(viii) The Underwritten Notes have been duly authorized for
issuance and sale pursuant to this Agreement and the Certificates have
been duly authorized pursuant to the Trust Agreement (or will have
been so authorized prior to the issuance of the Securities) and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, in the case of the Underwritten Notes,
and the Trust Agreement, in the case of the related Certificates,
against payment of the consideration therefor in accordance with this
Agreement in the case of the Underwritten Notes, the Underwritten
Notes will be valid and legally binding obligations of the Trust
enforceable in accordance with their terms, and will be entitled to
the benefits of the Indenture, and the related Certificates will be
duly and validly issued and outstanding, in each case except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles. The Underwritten Notes, the related
Certificates, the Indenture and the Trust Agreement conform in all
material respects to all statements relating thereto contained in the
Disclosure Package, the Prospectus and the Registration Statement.
(ix) At the Closing Time or at such other times as may be set
forth herein, each of the representations and warranties of the Seller
and JDCC set forth in the Sale and Servicing Agreement and by JDCC in
the Purchase Agreement will be true and correct; provided that the
sole remedy for any breach of any representation or warranty in
Section 3.02(b) of the Purchase Agreement shall be limited to the
remedies therefor provided in the Purchase Agreement.
(x) JDCC discussed the accounting treatment to be taken with
respect to the conveyance of receivables contemplated by Section 2.01
of the Purchase Agreement with its independent accountants and,
consistent with such discussions, JDCC will, with respect to its
unconsolidated financial accounts, treat such transactions as a sale
of assets for accounting purposes.
(xi) The Seller is not, and on the date on which the first bona
fide offer of the Underwritten Notes was made was not, an "ineligible
issuer," as defined in Rule 405 under the 1933 Act.
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(xii) Each Issuer Free Writing Prospectus (as defined in Section
3(a)) (including any Permitted Free Writing Prospectus (as defined in
Section 3(a))), as of its issue date and at all subsequent times
through the completion of the public offer and sale of the
Underwritten Notes or until any earlier date that the Seller notified
or notifies the Underwriters as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict (within the meaning of Rule 433(c)) with
the information then contained in the Registration Statement, the
Prospectus or the Preliminary Prospectus and not superseded or
modified. If at any time following issuance of an Issuer Free Writing
Prospectus (including any Permitted Free Writing Prospectus) there
occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement, the
Prospectus or the Preliminary Prospectus or included or would include
an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Seller will promptly (i) notify
the Representatives and (ii) amend or supplement such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(xiii) The initial effective date of the Registration Statement
is not more than three years prior to the date on which the first bona
fide offer of the Underwritten Notes was made.
(b) Any certificate signed by any officer of the Seller or JDCC and
delivered to the Representatives or counsel for the Underwriters shall be deemed
a representation and warranty by the Seller or JDCC (or by the Seller acting
through JDCC) as to the matters covered thereby to each Underwriter.
(c) Each Underwriter represents and warrants to each of the Seller and
JDCC as of the date hereof as follows:
(i) In relation to each member state of the European Economic
Area which has implemented the Prospectus Directive (each, a "Relevant
Member State"), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the
"Relevant Implementation Date"), each Underwriter has not made and
will not make an offer of Underwritten Notes to the public in that
Relevant Member State prior to the publication of a prospectus in
relation to Underwritten Notes which has been approved by the
competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant member State, all in
accordance with the Prospectus Directive, except that it may, with
effect from and including the Relevant Implementation Date, make an
offer of Underwritten Notes to the public in that Relevant Member
State at any time:
(1) to legal entities which are authorized or regulated to
operate in financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
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(2) to any legal entity which has two or more of (A) an
average of at least 250 employees during the last financial year;
(B) a total balance sheet of more than (euro)43,000,000 and (C)
an annual net turnover of more than (euro)50,000,000, as shown in
its last annual or consolidated accounts; or
(3) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3
of the Prospective Directive.
For purposes of this Section 4(c)(i), the expression an "offer of
Underwritten Notes to the public" in relation to any notes in any
Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the
Underwritten Notes to be offered so as to enable an investor to decide
to purchase or subscribe the Underwritten Notes, as the same may be
varied in that member state by any measure implementing the Prospectus
Directive in that member state, and the expression "Prospective
Directive" means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(ii) (A) Each Underwriter is a person whose ordinary activities
involve it in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of its business and (B) it
has not offered or sold and will not offer or sell the notes other
than to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses or who it is reasonable to
expect will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses where the
issue of the Underwritten Notes would otherwise constitute a
contravention of Section 19 of the Financial Services and Markets Act
(the "FSMA") by the issuing entity;
(iii) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of the Underwritten Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuing Entity; and
(iv) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it
in relation to the Underwritten Notes in, from or otherwise involving
the United Kingdom.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Seller
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter agrees to purchase from the Seller, the Underwritten Notes set forth
opposite its name in the Pricing Agreement at the respective prices to be
determined by agreement between the Seller and you, which prices shall be set
forth in the Pricing Agreement. In the event that such prices have not been
agreed upon and the Pricing Agreement has not been executed and delivered by all
parties thereto by the close of business on the fourth business day
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following the date of this Agreement, this Agreement shall terminate forthwith,
without liability of any party to any other party, unless otherwise agreed to by
the Seller and you.
(b) Payment of the purchase price for, and delivery of, the
Underwritten Notes shall be made at the office of Shearman & Sterling LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Representatives and the Seller at 10:00 A.M. on XXXX, or such
other time as shall be agreed upon by the Representatives and the Seller (such
time and date of delivery being herein called "Closing Time" and such date of
delivery being called the "Closing Date"). Payment shall be made by the
Representatives to the Seller in same day funds against delivery of the
Underwritten Notes to, or at the direction of, the Representatives. The
Underwritten Notes shall be in such denominations and registered in such names
as the Representatives may request in writing at least two business days before
Closing Time. The Underwritten Notes, which may be in temporary form, will be
made available for examination and packaging by the Representatives not later
than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten
Notes will be represented initially by Underwritten Notes registered in the name
of Cede & Co., the nominee of The Depository Trust Company.
SECTION 3. Free Writing Prospectuses.
(a) The Seller represents and agrees that, unless it obtains the prior
consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Seller and the Representatives, it
has not made and will not make any offer relating to the Underwritten Notes that
would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a "free writing prospectus," as defined in Rule 405, required to be
filed with the SEC. Any such free writing prospectus consented to in writing by
the Seller and the Representatives is referred to herein as a "Permitted Free
Writing Prospectus." The Seller represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an "issuer free writing
prospectus," as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
"Issuer Free Writing Prospectus" means any "issuer free writing prospectus," as
defined in Rule 433, relating to the Underwritten Notes in the form filed or
required to be filed by the Seller with the SEC or, if not required to be filed,
in the form retained in the Seller's records pursuant to Rule 433(g).
(b) Subject to the consent of the Representatives required in Section
3(a), the Seller will prepare a final term sheet relating to the final terms of
the Underwritten Notes in the form attached as Exhibit A to the Pricing
Agreement (the "Final Term Sheet") and will file such Final Term Sheet within
the period required by Rule 433(d)(5)(ii) following the date such final terms
have been established for the Underwritten Notes. Any such Final Term Sheet is
an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for
purposes of this Agreement. Notwithstanding anything to the contrary contained
herein, the Seller consents to the use by any Underwriter of a free writing
prospectus (each, an "Underwriter Free Writing Prospectus") that contains only
(i) (A) information describing the preliminary terms of the Underwritten Notes
or their offering or (B) information that describes the final terms of the
Underwritten Notes or their offering and that is or is to be included in the
Final Term Sheet or (ii) other customary information that is neither "issuer
information" as defined in Rule 433(h)(2) or otherwise an Issuer Free Writing
Prospectus; provided that (x) no such Underwriter Free Writing Prospectus
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shall include information that conflicts with information in the Registration
Statement, the Preliminary Prospectus or the Prospectus and not superseded or
modified;(y) such Underwriter Free Writing Prospectus shall contain the legend
required by Rule 433(c)(2); and (z) the Underwriters using the Underwriter Free
Writing Prospectus shall retain the free writing prospectus for the period
required by Rule 433(g) of the 1933 Act or any successor provision. Each
Underwriter shall provide to the Seller a true and accurate copy of each Free
Writing Prospectus conveyed by it of the type referred to in Rule 433(d)(5)(ii)
under the 1933 Act no later than the close of business on the business day
following the date of first use.
(c) Neither the Seller nor any Underwriter shall disseminate or file
with the Commission any information relating to any Underwritten Notes in
reliance on Rule 167 or 426 under the 1933 Act, nor shall the Seller or any
Underwriter disseminate any Underwriter Free Writing Prospectus (as defined
below) "in a manner reasonably designed to lead to its broad unrestricted
dissemination" within the meaning of Rule 433(d) under the 1933 Act.
SECTION 4. Covenants.
(a) The Seller covenants with each Underwriter as follows:
(i) Immediately following the execution of the Pricing Agreement,
the Seller will prepare a Prospectus Supplement setting forth the
principal amount of the Underwritten Notes, the price or prices at
which the Underwritten Notes are to be purchased by the Underwriters,
either the initial public offering price or prices or the method by
which the price or prices at which the Underwritten Notes are to be
sold will be determined, the selling concession(s) and reallowance(s),
if any, any delayed delivery arrangements, and such other information
as you and the Seller deem appropriate in connection with the offering
of the Underwritten Notes. The Seller will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to
Rule 424 under the 1933 Act and will furnish to the Underwriters as
many copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request.
(ii) At any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Underwritten Notes,
the Seller will promptly notify the Representatives, and immediately
confirm the notice in writing, (A) of the effectiveness of any
post-effective amendment to the Registration Statement, (B) of the
receipt of any comments from the Commission, (C) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Preliminary Prospectus or the
Prospectus or for additional information, (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (E) of the mailing or delivery to the Commission for filing
of any document to be filed pursuant to the 1934 Act and (F) of the
receipt by the Seller of any notification with respect to the
suspension of the qualification of any Class of Underwritten Notes for
sale in any jurisdiction or the initiation of any proceedings for that
purpose. The Seller will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
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(iii) At any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Underwritten Notes,
the Seller will give the Representatives notice of its intention to
file any amendment to the Registration Statement, whether pursuant to
the 1934 Act, the 1933 Act or otherwise, or use any amendment or
supplement to the Prospectus, will furnish the Representatives with
copies of any such amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus in a
form to which the Representatives or counsel for the Underwriters
shall reasonably object.
(iv) During the period specified in (ii) above, the Seller will
deliver to the Representatives as many signed and conformed copies of
the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith) as the Representatives
may reasonably request.
(v) The Seller will furnish to you, from time to time during the
period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of such Prospectus (as amended or
supplemented) as you may reasonably request for the purposes
contemplated by the 1933 Act or the respective applicable rules and
regulations of the Commission thereunder.
(vi) If, at any time during the term of this Agreement and
thereafter, when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Notes, any
event shall occur as a result of which it is necessary, in the opinion
of counsel for the Underwriters or counsel for the Seller, to amend or
supplement the Preliminary Prospectus or the Prospectus in order that
the Preliminary Prospectus or the Prospectus, as the case may be, will
not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading in the light of circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend or supplement the
Registration Statement, the Preliminary Prospectus or the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Seller will promptly advise the Representatives
of any proposal to amend or supplement the Registration Statement, the
Preliminary Prospectus or the Prospectus as may be necessary to
correct such untrue statement or omission or to make the Registration
Statement, the Preliminary Prospectus and the Prospectus comply with
such requirements and will not file with the Commission such amendment
or supplement, whether by filing documents pursuant to the 1934 Act or
otherwise without the Representatives' consent, which consent shall
not be unreasonably withheld and which consent or nonconsent shall be
given no later than two Business Days after the Seller advises the
Representatives of such proposal to amend or supplement. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in this Section 4. Notwithstanding the foregoing,
the parties agree that for purposes of this Section 4(a)(vi), (A) the
Seller may assume that the delivery period described above shall
expire on XXXX, 2XXX unless otherwise advised in writing by the
Representatives and (B) this Section 4(a)(vi) shall not apply to
monthly servicing reports on Form 10-D or to any filing made on Form
10-K. If the
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Representatives provide the notice described in the preceding clause
(A), such notice shall be updated by a new notice to the Seller not
less than weekly until the delivery period shall have expired.
(vii) The Seller will endeavor in good faith to qualify the
Underwritten Notes for offering and sale under the applicable
securities laws of such jurisdictions as the Representatives may
designate; provided, however, that the Seller shall not be obligated
to file any general consent to service or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction to which
it is not so qualified. The Seller will maintain such qualifications
in effect for as long as may be required for the distribution of the
Underwritten Notes. The Seller will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Underwritten Notes have been qualified as above provided.
(viii) During a period of 15 days from the date of the
Prospectus, the Seller will not, without your prior written consent,
directly or indirectly, sell, offer to sell, or otherwise dispose of,
any asset backed pass-through certificates or notes or similar
securities representing interests in or secured by agricultural and
construction equipment loan receivables.
(ix) The Seller has filed or will file each Preliminary
Prospectus pursuant to and in accordance with Rule 424(b) within the
time period prescribed under Rule 424(b). The Seller has complied and
will comply with Rule 433.
(x) The Seller will prepare and file the Prospectus pursuant to
and in accordance with Rule 424(b) within the time period prescribed
under Rule 424(b).
(b) The Seller covenants with you as follows:
(i) With respect to each sale of the Underwritten Notes, the
Seller will cause the Trust to make generally available to holders of
Underwritten Notes as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement
of the Trust (in form complying with the provisions of Rule 158 under
the ▇▇▇▇ ▇▇▇) covering the 12-month period beginning not later than
the first day of the Trust's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement relating to the Underwritten Notes.
(c) The Servicer covenants with you as follows:
(i) So long as any of the Underwritten Notes shall be
outstanding, the Servicer will deliver to you a copy of the annual
statement as to compliance and any notice of default delivered to the
Indenture Trustee pursuant to Section 4.10 of the Sale and Servicing
Agreement and a copy of the annual assessment(s) of compliance with
the servicing criteria and the annual attestation of a firm of
independent public accountants furnished to the Indenture Trustee
pursuant to Section 4.11 of the Sale and Servicing Agreement, as soon
as such statements are furnished to the Indenture Trustee.
11
SECTION 5. Payment of Expenses. The Seller and JDCC will be obligated
to pay all expenses incident to the performance of their obligations under this
Agreement, including (i) the printing and filing of the Registration Statement
as originally filed and of each amendment thereto, (ii) the preparation,
printing, issuance and delivery of the Underwritten Notes to the Underwriters,
(iii) the fees and disbursements of counsel and accountants for the Seller and
JDCC, (iv) the qualification of the Underwritten Notes under securities laws in
accordance with the provisions of Section 4(a)(vii), including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (v) the
determination of the eligibility of the Underwritten Notes for investment and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of a Legal Investment Survey,
if any, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of each Prospectus and any amendments or
supplements thereto, (vii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey, (viii) the fees of each Rating Agency that rates
any of the Underwritten Notes, (ix) the fees and expenses of the Indenture
Trustee, the Owner Trustee and their respective counsel and (x) all expenses
incurred for preparing, printing and distributing each Issuer Free Writing
Prospectus to investors or prospective investors.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 6 or Section 10(a)(i), the Seller and JDCC, jointly
and severally, shall be obligated to reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Seller and JDCC herein contained, to the performance by
the Seller and JDCC of their obligations hereunder, and to the following further
conditions:
(a) At Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission. The
Preliminary Prospectus and the Prospectus shall have been transmitted
to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period and the Final Term Sheet
contemplated by Section 3(b) shall have been transmitted for filing
within the prescribed time period required by Rule 433(d)(5)(ii), and
prior to Closing Time, the Seller shall have provided evidence
satisfactory to the Representatives of such timely filing.
(b) At Closing Time, the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Date, of
Shearman & Sterling LLP, counsel for the Seller and JDCC, in form
and substance satisfactory to the Representatives, to the effect
that:
(i) JDCC is a corporation duly incorporated and validly
existing in good standing under the laws of the State of
Delaware.
12
(ii) This Agreement has been duly authorized, executed
and delivered by JDCC.
(iii) Assuming the due authorization, execution and
delivery of the Indenture by the parties thereto, the
Indenture constitutes a valid and binding obligation of the
Trust, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(iv) Assuming that the Underwritten Notes have been
duly authorized, executed and delivered by the Trust, when
authenticated by the Indenture Trustee in accordance with
the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, the Underwritten
Notes will be valid and binding obligations of the Trust,
entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including without
limitation all laws relating to fraudulent transfers),
reorganization or other similar laws affecting enforcement
of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(v) Assuming due authorization, execution and delivery
thereof by the party or parties thereto, each Basic Document
to which the Seller is a party constitutes the valid and
binding obligation of the Seller enforceable in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization
or similar laws relating to or affecting creditors' rights
generally, and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(vi) Each Basic Document (other than the Trust
Agreement) to which JDCC is a party has been duly
authorized, executed and delivered by JDCC and, assuming due
authorization, execution and delivery thereof by the other
party or parties thereto, constitutes the valid and binding
obligation of JDCC enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization or similar laws
relating to or affecting creditors' rights and except as
enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
13
(vii) The statements in the Preliminary Prospectus and
the Prospectus under "Description of the Notes" and
"Description of the Transfer and Servicing Agreements," in
each case, insofar as such statements constitute summaries
of certain provisions of the Securities and the Basic
Documents, fairly summarize in all material respect such
provisions.
(viii) The statements in the Preliminary Prospectus
Supplement and the Prospectus Supplement under "Federal
Income Tax Considerations" and "ERISA Considerations", in
each case, in so far as such statements constitute
statements of legal matters referred to therein, fairly
summarize, subject to the limitations set forth therein, in
all material respects the legal matters referred to therein.
As set forth and further discussed in such statements, for
federal income tax purposes, the Underwritten Notes will be
considered debt and the Trust will not be an association (or
a publicly traded partnership) taxable as a corporation.
(ix) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the sale of the Underwritten Notes to the
Underwriters or the issuance of the related Certificates,
except such as may have been obtained or be required under
the 1933 Act or the 1933 Act Regulations or state securities
law.
(x) The execution and delivery of this Agreement and
the Basic Documents by each of the Seller, the Trust and
JDCC and the consummation of the transactions contemplated
herein and therein will not result in the violation of the
provisions of any applicable federal law or federal
administrative regulation (other than the 1933 Act, the 1934
Act and the 1939 Act).
(xi) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(xii) The Registration Statement, the Preliminary
Prospectus and the Prospectus, and each amendment or
supplement thereto (except for the financial statements and
other financial or statistical data included therein or
omitted therefrom and the Statement of Eligibility and
Qualification of the Indenture Trustee on Form T-1, as to
which such counsel need express no opinion), as of their
respective effective or issue dates, appear on their face to
have been appropriately responsive in all material respects
to the requirements of the 1933 Act, the 1939 Act and the
1933 Act Regulations.
(xiii) The execution and delivery of this Agreement,
the fulfillment of the terms herein set forth and the
consummation of the
14
transactions contemplated herein and in the Basic Documents
to which the Seller is a party will not conflict with the
charter or by-laws of the Seller.
(xiv) Neither the Seller nor the Trust is required to
register as an "investment company" under the 1940 Act.
(xv) The Indenture has been duly qualified under the
1939 Act, and the Trust Agreement is not required to be
qualified under the ▇▇▇▇ ▇▇▇.
(xvi) The Purchase Agreement validly transfers to the
Seller an ownership interest in the Receivables. Under New
York law, the perfection of such ownership interest is
governed by the law of the state in which JDCC is organized.
(xvii) The Sale and Servicing Agreement either (a)
validly transfers to the Trust an ownership interest in all
of the Seller's right, title and interest in the Receivables
or (b) if the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement is deemed to be
a pledge, then the Sale and Servicing Agreement creates a
valid security interest in the Receivables and the proceeds
thereof in favor of the Trust. Under New York law, the
perfection of such ownership interest and security interest
is governed by the law of the jurisdiction where such
collateral is located or, in the case of a non-possesory
interest in the Receivables, by the law of the state in
which the Seller is organized.
(xviii) The Indenture creates a valid security interest
in the Receivables and the proceeds thereof and in the Trust
Accounts in favor of the Indenture Trustee. Under New York
law, the perfection of such security interest is governed by
(x) the law of the state in which the Trust is organized in
the case of the Receivables and the proceeds thereof and (y)
the related "securities intermediary's jurisdiction" or
related "bank's jurisdiction," as applicable, in the case of
the Trust Accounts.
Such opinion shall also state that such counsel has not verified, and
is not passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Disclosure Package other than those mentioned
in paragraph (vii) above. Such counsel has, however, generally reviewed and
discussed such statements with certain officers of the Seller and JDCC and their
auditors. In the course of such review and discussion, no facts have come to
such counsel's attention that lead such counsel to believe (i) that the
Registration Statement or any amendment thereto (except for the financial
statements and other financial and statistical data included therein or omitted
therefrom and the Statement of Eligibility and Qualification of the Indenture
Trustee on Form T-1, as to which such counsel need not comment), at the
Applicable Time, contained an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) that the Disclosure Package or
any amendment or supplement thereto (except for the financial
15
statements and other financial and statistical data included therein or omitted
therefrom, as to which such counsel need not comment), as of the Applicable Time
or as of the Closing Date, included or includes any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading and (iii) that the Prospectus or any amendment or
supplement thereto (except for the financial statements and other financial and
statistical data included therein or omitted therefrom, as to which such counsel
need not comment), at the time the Prospectus was issued, at the time any such
amended or supplemented Prospectus was issued or as of the Closing Date,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In addition, the Underwriters shall have received from Shearman &
Sterling LLP, a letter authorizing the Underwriters to rely upon the opinion or
opinions delivered by such counsel to each Rating Agency that is requested to
give a rating on any of the Underwritten Notes in connection with the
transactions contemplated by this Agreement and the Basic Documents.
(2) The favorable opinion, dated as of the Closing Date, of
the General Counsel or Associate General Counsel of Deere &
Company ("Deere") or the Chief Counsel of JDCC, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) To the best of such counsel's knowledge and
information, the execution and delivery of this Agreement
and the Basic Documents and the consummation of the
transactions contemplated herein and therein will not result
in the violation of the provisions of any applicable federal
or Illinois law or federal or Illinois administrative
regulation.
(ii) The execution and delivery of this Agreement and
the Basic Documents and the consummation of the transactions
contemplated herein and therein will not conflict with or
constitute a breach of, or default under, the charter or
bylaws of JDCC or the Seller or any agreement, indenture, or
other instrument known to such counsel to which JDCC or the
Seller is a party or by which JDCC or the Seller may be
bound, or any law, administrative regulation or
administrative or court order known to him to be applicable
to either JDCC or the Seller.
(iii) The statements in the Preliminary Prospectus and
the Prospectus under the caption "Certain Legal Aspects of
the Receivables," to the extent they constitute matters of
law or legal conclusions, are correct in all material
respects.
(iv) The Receivables are "tangible chattel paper" under
the Illinois Uniform Commercial Code.
(v) During the time period in which JDCC acquired the
Receivables, JDCC had in place sufficient documents and
procedures
16
which, if followed, resulted in JDCC owning the Receivables;
and assuming that such procedures were followed (and counsel
has no reason to believe such procedures were not followed),
immediately prior to the sale of the Receivables to the
Seller, JDCC owned the Receivables free and clear of any
lien, security interest or charge. With respect to each
Receivable constituting part of the Trust, such Receivable
is secured by a validly perfected first priority purchase
money security interest in the equipment financed thereby in
favor of JDCC as a secured party or, in accordance with its
customary standards, policies and servicing procedures, such
procedures have been taken that if followed (and such
counsel has no reason to believe that they will not be so
followed) will result in the perfection of a first priority
purchase money security interest in the equipment financed
thereby in favor of JDCC as a secured party, subject to
customary and usual exceptions. Each such Receivable has
been duly and validly assigned to the Seller by JDCC
pursuant to the terms of the Purchase Agreement.
(3) The favorable opinion, dated as of the Closing Date, of
Lionel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Nevada counsel for the Seller
and JDCC, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Seller is a corporation duly incorporated and
validly existing in good standing under the laws of the
State of Nevada.
(ii) This Agreement and each Basic Document to which
the Seller is a party has been duly authorized and executed
by the Seller.
(iii) The Receivables are "tangible chattel paper"
under Nevada law.
(iv) Assuming that an ownership interest in the
Receivables has been validly transferred to the Seller
pursuant to the Purchase Agreement and such security
interest has been properly perfected under applicable law,
the Seller has a first-priority ownership interest in the
Receivables and the proceeds thereof, subject to customary
exceptions and assumptions. Assuming that an ownership
interest in the Receivables has been validly transferred to
the Trust pursuant to the Sale and Servicing Agreement, the
Trust has a first-priority, perfected ownership interest in
the Receivables and the proceeds thereof, subject to
customary exceptions and assumptions. Assuming that a
security interest in the Receivables has been validly
created in favor of the Indenture Trustee pursuant to the
Indenture and such security interest has been properly
perfected under applicable law, the Indenture Trustee has a
first priority security interest in the Receivables and the
proceeds thereof, subject to customary exceptions and
assumptions.
17
(v) The State of Nevada does not impose an individual
income tax or an income tax on corporations, partnerships or
other entities doing business in Nevada.
(4) The favorable opinion, dated as of the Closing Date, of
Lane & ▇▇▇▇▇▇▇▇, special Iowa tax counsel for the Seller and
JDCC, in form and substance satisfactory to counsel for the
Underwriters, to the effect that the information in the
Preliminary Prospectus and the Prospectus under "Certain Iowa Tax
Considerations," to the extent that it constitutes matters of
Iowa law or Iowa legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(5) The favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Indenture Trustee, in
form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Indenture Trustee, at the time of its execution
and delivery of the Indenture, had full power and authority
to execute and deliver the Indenture and has full power and
authority to perform its obligations thereunder.
(ii) The Indenture has been duly and validly
authorized, executed and delivered by the Indenture Trustee
and, assuming due authorization, execution and delivery
thereof by the Trust, constitutes the valid and binding
obligation of the Indenture Trustee enforceable against the
Indenture Trustee in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting creditors' rights or
by general principles of equity.
(iii) To the best of such counsel's knowledge, there
are no actions, proceedings or investigations pending or
threatened against or affecting the Indenture Trustee before
or by any court, arbitrator, administrative agency or other
governmental authority which, if adversely decided, would
materially and adversely affect the ability of the Indenture
Trustee to carry out the transactions contemplated in the
Indenture.
(iv) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the United States of America
or any state thereof was or is required for the execution,
delivery or performance by the Indenture Trustee of the
Indenture.
(6) The favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form
and substance satisfactory to counsel for the Underwriters, to
the effect that:
18
(i) U.S. Bank Trust National Association is duly formed
and validly existing as a national banking association in
good standing under the laws of the United States of
America.
(ii) U.S. Bank Trust National Association has power and
authority to execute, deliver and perform the Trust
Agreement and to consummate the transactions contemplated
thereby.
(iii) The Trust Agreement has been duly authorized,
executed and delivered by U.S. Bank Trust National
Association and constitutes a legal, valid and binding
obligation of U.S. Bank Trust National Association,
enforceable against U.S. Bank Trust National Association, in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws relating
to or affecting creditors' rights, by general principles of
equity, or Delaware public policy on the enforceability of
provisions relating to indemnification and rights of
contribution.
(iv) Neither the execution, delivery and performance by
U.S. Bank Trust National Association of the Trust Agreement,
nor the consummation of the transactions contemplated
thereby, nor compliance with the terms thereof conflict with
or result in a breach of, or constitute a default under the
provisions of, U.S. Bank Trust National Association's
articles of association or by-laws or any law, rule or
regulation of the United States of America or the State of
Delaware governing the trust powers of U.S. Bank Trust
National Association.
(v) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or
governmental agency or commission under the laws of the
United States of America governing the trust powers of U.S.
Bank Trust National Association or under the laws of the
State of Delaware is required by or with respect to U.S.
Bank Trust National Association for the valid execution and
delivery of the Trust Agreement, or for the validity or
enforce-ability thereof, other than the filing of the
Certificate of Trust.
(7) The favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the
Trust, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Trust has been duly formed and is validly
existing in good standing as a statutory trust under the
Delaware Statutory Trust Act, 12 Del. C. ss. 3801, et seq.
(ii) The Trust has the power and authority, pursuant to
the Trust Agreement and the Act, to execute, deliver and
perform its obligations under the Basic Documents to which
it is a party, to issue the
19
Notes and the Certificate and to grant the Trust Estate to
the Indenture Trustee as security for the Notes. The Trust
Agreement authorizes the Trust to execute and deliver the
Basic Documents to which it is a party, to issue the Notes
and the Certificate and to grant the Trust Estate to the
Indenture Trustee as security for the Notes. The Trust has
duly executed and delivered the Basic Documents to which it
is a party and the Notes.
(iii) The Certificate has been validly issued and is
entitled to the benefits of the Trust Agreement.
(iv) The Trust Agreement is a legal, valid and binding
obligation of the Seller and the Owner Trustee, enforceable
against the Seller and the Owner Trustee, in accordance with
its terms.
(v) Each of the Financing Statements (as hereinafter
defined) is in an appropriate form for filing in the State
of Delaware and has been duly filed in the appropriate
filing office in the State of Delaware and the fees and
documents taxes, if any, payable in connection with the said
filing of the Financing Statements have been paid in full.
"Financing Statements" shall mean (i) the financing
statement on form UCC-1, naming JDCC as debtor and JDRI as
secured party, to be filed with the Secretary of State
(Uniform Commercial Code Section)(the "Division") on or
before the Closing Date (the "JDCC Financing Statement") and
(ii) the financing statement on form UCC-1, naming the Trust
as debtor and the Indenture Trustee as secured party, to be
filed with the Division on or before the Closing Date (the
"Trust Financing Statement").
(vi) Under Article 9 of the Uniform Commercial Code as
in effect in the State of Delaware, 6 Del. C. ss. 9-101 et
seq. (the "DELUCC") (without regard to conflicts of laws
principles), and assuming that a security interest in all of
JDCC's right, title and interest in the Receivables has been
validly transferred to the Seller, upon the filing of the
JDCC Financing Statement with the Division, the Seller will
have a perfected security interest in that portion of the
collateral described in Section 2.01 of the Purchase
Agreement (the "JDCC Collateral") described in the JDCC
Financing Statement that may be perfected by filing of a
financing statement with the Division (the "JDCC Filing
Collateral") and the proceeds (as defined in Section
9-102(a)(64) of the DELUCC) thereof. No refiling or other
action is necessary under the DELUCC in order to maintain
the perfection of such security interest, except for the
filing of continuation statements at five year intervals.
(vii) Under Article 9 of the DELUCC (without regard to
conflicts of laws principles), and assuming that the
security interest created by the Indenture in the Collateral
(as defined in the Indenture) has
20
been duly created and has attached, upon the filing of the
Trust Financing Statement with the Division, the Indenture
Trustee will have a perfected security interest in the
Trust's rights in that portion of the Collateral, and the
proceeds thereof, described in the Trust Financing Statement
that may be perfected by filing a financing statement with
the Division (the "Trust Filing Collateral" and together
with the JDCC Filing Collateral, the "Filing Collateral")
and the proceeds (as defined in Section 9-102(a)(64) of the
DELUCC) thereof. No refiling or other action is necessary
under the DELUCC in order to maintain the perfection of such
security interest, except for the filing of continuation
statements at five year intervals.
(viii) The search report obtained in connection with
the opinion, sets forth the proper filing office and the
proper debtor necessary to identify those Persons who under
the DELUCC have on file financing statements against the
Trust covering the Trust Filing Collateral as of the time of
such search. Except for the Indenture Trustee, the search
report identifies no party who has on file with the Division
an effective financing statement naming the Trust as debtor
and describing the Trust Filing Collateral prior to the
final date of the time period covered by such search.
(ix) Under ss. 3805(b) of the Delaware Statutory Trust
Act, 12 Del. C. ss. 3801, et seq., no creditor of the
Certificateholder shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance
with the terms of the Trust Agreement.
(x) Under the Delaware Statutory Trust Act, 12 Del. C.
ss. 3801, et seq., the Trust is a separate legal entity and,
assuming that the Sale and Servicing Agreement conveys good
title to the Trust property to the Trust as a true sale and
not as a security arrangement, the Trust rather than the
Certificateholder will hold whatever title to the Trust
property as may be conveyed to it from time to time pursuant
to the Sale and Servicing Agreement, except to the extent
that the Trust has taken action to dispose of or otherwise
transfer or encumber any part of the Trust property.
(8) The favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, special Texas counsel for the Seller and JDCC,
in form and substance satisfactory to counsel for the Underwriters, to
the effect that the lien of the Indenture Trustee in the Collateral
(including, without limitation, identifiable cash proceeds thereof and
any after acquired property acquired by the Issuing Entity prior to
the date any tax lien is filed) will be superior to any tax lien
arising in connection with any tax liability arising under Title 2 of
the Texas Tax Code (as revised), filed after the creation and
perfection of the lien of the Indenture Trustee in the Collateral.
(9) The favorable opinion, dated as of the Closing Date, of
Sidley Austin LLP, counsel for the Underwriters, with respect to the
issue and sale of the
21
Securities, the Registration Statement, this Agreement, the
Preliminary Prospectus, the Prospectus and such other related matters
as the Underwriters may reasonably require.
(c) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement, the Prospectus and the Preliminary Prospectus, any
material adverse change in the financial condition of JDCC and its
subsidiaries considered as an enterprise, or in the results of operations
or business prospects of JDCC and its subsidiaries considered as an
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President, a
Vice President or the Treasurer or Assistant Treasurer of JDCC, on behalf
of each of JDCC and the Seller, dated as of the Closing Date, to the effect
that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as though expressly made at and as of Closing Time.
(d) At Closing Time, you shall have received from Deloitte & Touche
LLP a letter, dated as of the Closing Date, in the form heretofore agreed.
(e) At Closing Time, you shall have received from the Owner Trustee a
certificate signed by one or more duly authorized officers of the Owner
Trustee, dated as of the Closing Date, as to the due acceptance of the
Trust Agreement by the Owner Trustee and the due execution and delivery of
the Notes and Certificates delivered by the Owner Trustee in accordance
therewith and such other matters as you shall request.
(f) At the Closing Time, you shall have received from the Indenture
Trustee, an officer's certificate certifying that the information contained
in the Statement of Eligibility and Qualification (Form T 1) of the
Indenture Trustee under the Trust Indenture Act filed with the Registration
Statement is true and correct.
(g) At Closing Time, the Underwritten Notes shall be rated "A-1+," in
the case of the Class A-1 Notes and "AAA," in the case of the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes by Standard & Poor's a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., "P-1," in the case of the
Class A-1 Notes and "Aaa," in the case of the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes by ▇▇▇▇▇'▇ Investors Service, Inc.
(h) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Seller and JDCC in connection with the issuance
and sale of the Underwritten Notes as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
22
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Seller and JDCC at any time at or prior
to Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 7. Indemnification.
(a) As an inducement to the Underwriters to participate in the public
offering of the Underwritten Notes, the Seller and JDCC jointly and severally
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls an Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense to which such Underwriter may become subject, under the Act or
otherwise, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the information deemed to be a
part of the Registration Statement pursuant to Rule 430B under the
1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Disclosure Package (or any amendment or supplement
thereto), the Prospectus (or any amendment or supplement thereto) or
in any Issuer Free Writing Prospectus or the omission or alleged
omission of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Seller by or on
behalf of any Underwriter through either Representative expressly for
use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto), the Disclosure
Package (or any amendment or supplement thereto) or any Issuer Free
Writing Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as "Underwriters Information" in the Pricing Agreement, or
was made in reliance upon the Form T-1 of the Indenture Trustee under
the Indenture;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Seller and JDCC; and
(iii) against any and all expense whatsoever (including the
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue
23
statement or omission, or any such alleged untrue statement or
omission to the extent that any such expense is not paid under (i) or
(ii) above.
In no case shall the Seller or JDCC be liable under this indemnity
agreement with respect to any claim made against any Underwriter or any such
controlling person unless the Seller or JDCC shall be notified in writing of the
nature of the claim within a reasonable time after the assertion thereof, but
failure so to notify the Seller or JDCC shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. JDCC
shall be entitled to participate at its own expense in the defense, or if it so
elects within a reasonable time after receipt of such notice, to assume the
defense for any suit brought to enforce any such claim, but if JDCC elects to
assume the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in any suit so brought. In the event that JDCC
elects to assume the defense of any such suit and retains such counsel, the
Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Seller and/or JDCC, on the
one hand, and one or more Underwriters, on the other, and any such Underwriter
shall have been advised by counsel chosen by it and satisfactory to JDCC that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Seller or JDCC, JDCC shall not have the
right to assume the defense of such action on behalf of such Underwriter and
will reimburse such Underwriter and any person controlling such Underwriter as
aforesaid for the reasonable fees and expenses of any counsel retained by them,
it being understood that the Seller and JDCC shall not, in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) for all such Underwriters and controlling persons,
which firm shall be designated in writing by the Representatives. The Seller and
JDCC agree to notify the Representatives within a reasonable time of the
assertion of any claim against either of them, any of their officers or
directors or any person, if any, who controls the Seller or JDCC within the
meaning of Section 15 of the 1933 Act, in connection with the sale of the
Underwritten Notes.
(b) Each Underwriter, severally and not jointly, agrees that it will
indemnify and hold harmless the Seller and JDCC, and each of the officers of the
Seller who signs the Registration Statement and each of its directors and each
person, if any, who controls the Seller and JDCC within the meaning of Section
15 of the 1933 Act to the same extent as the foregoing indemnity from the Seller
and JDCC, but only with respect to statements or omissions made in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto), the Disclosure Package (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Seller by or on behalf
of such Underwriter through either Representative expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto), the Disclosure Package (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus; it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as "Underwriters Information" in the Pricing
Agreement. In case any action shall be brought against the Seller or JDCC or any
person so indemnified based on the Registration Statement (or
24
any amendment thereto), the Prospectus (or any amendment or supplement thereto),
the Disclosure Package (or any amendment or supplement thereto) or any Issuer
Free Writing Prospectus and in respect of which indemnity may be sought against
any Underwriter, such Underwriter shall have the rights and duties given to the
Seller and JDCC, and the Seller and JDCC and each person so indemnified shall
have the rights and duties given to the Underwriters, by the provisions of
subsection (a) of this Section.
SECTION 8. Contribution. If the indemnification provisions provided in
Section 7 should under applicable law be unenforceable or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Seller and the Underwriters from
the offering of the Underwritten Notes and also the relative fault of the Seller
and the Underwriters in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Seller and the Underwriters shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Seller and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
Prospectus, bear to the aggregate public offering price of the Underwritten
Notes. The relative fault shall be determined by reference to, among other
things, whether the indemnified party failed to give the notice required under
Section 7 including the consequences of such failure, and whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Seller or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct and prevent such statement or omission. The Seller,
JDCC and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 8. The amount paid or payable
by an indemnified party as a result of the losses, liabilities, claims, damages
or expenses (or actions in respect thereof) referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this Section 8 to contribute are several in proportion to their respective
underwriting obligations and not joint.
The obligations of the Seller and JDCC under this Section 8 shall be
in addition to any liability which the Seller and JDCC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of
25
Section 15 of the 1933 Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer who signs the Registration Statement and each
director of the Seller and to each person, if any, who controls the Seller
within the meaning of Section 15 of the 1933 Act.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement or contained in certificates of officers of
the Seller and JDCC submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person thereof, or by or on behalf of the Seller
and JDCC and shall survive delivery of the Underwritten Notes to the
Underwriters.
SECTION 10. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Seller and JDCC at any time at or prior to Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
material adverse change in the financial condition of JDCC and its subsidiaries
considered as one enterprise, or in the results of operations or business
prospects of JDCC and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business in the reasonable judgment of the
Representatives, or (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis, the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Underwritten Notes or to enforce
contracts for the sale of the Notes, or (iii) if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5 hereof.
SECTION 11. Default. If one or more of the Underwriters shall fail at
Closing Time to purchase the Underwritten Notes that it or they are obligated to
purchase under this Agreement (the "Defaulted Underwritten Notes"), then the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Underwritten Notes in such
amounts as may be agreed upon and upon the terms herein set forth. If, however,
during such 24 hours the Representatives shall not have completed such
arrangements for the purchase of all of the Defaulted Underwritten Notes, then:
(a) if the aggregate principal amount of Defaulted Underwritten
Notes does not exceed 10% of the aggregate principal amount of the
Underwritten Notes to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
26
obligations hereunder bear to the underwriting obligations of such
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Underwritten Notes
exceeds 10% of the aggregate principal amount of the Underwritten Notes to be
purchased pursuant to this Agreement, this Agreement shall terminate without any
liability on the part of any non-defaulting Underwriters or the Seller or JDCC.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Seller or the Representatives shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement or the Prospectus
or in any other documents or arrangements may be effected.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to you shall be
directed to you at [XXXX]. Notices to the Seller shall be directed to the Seller
at ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager (with a copy to
Deere & Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Treasurer); notices to JDCC shall be directed to JDCC at ▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager (with a copy to Deere & Company,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer).
SECTION 13. No Fiduciary Duty. The Seller and JDCC each acknowledge
and agree that the Seller, JDCC and its Affiliates each have arm's-length
business relationships with the Underwriters and their respective Affiliates
that create no fiduciary duty on the part of any Underwriter or any of its
Affiliates in connection with all aspects of the transactions contemplated by
this Agreement, and each such party expressly disclaims any fiduciary duty.
SECTION 14. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, the Seller,
JDCC, and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or with respect to this
Agreement or the Pricing Agreement or any provision herein or therein contained.
This Agreement and the Pricing Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives and for the
benefit of no other person, firm or corporation. No purchaser of an Underwritten
Note from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
27
SECTION 15. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Seller and JDCC counterparts hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Seller and JDCC in accordance with its
terms.
Very truly yours,
▇▇▇▇ DEERE RECEIVABLES, INC.
By:
---------------------------------
Name:
Title:
▇▇▇▇ DEERE CAPITAL CORPORATION
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME OF UNDERWRITERS\
By: XXX
as Representative of the Several Underwriters
By
---------------------------
Name:
Title:
By
---------------------------
Name:
Title:
[XXXX], ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Representative of the Several Underwriters
By
---------------------------
Name:
Title:
Exhibit A
▇▇▇▇ DEERE OWNER TRUST 2XXX
▇▇▇▇ DEERE RECEIVABLES, INC.
and
▇▇▇▇ DEERE CAPITAL CORPORATION
Class A-1 XXXX% Asset Backed Notes
Class A-2 XXXX% Asset Backed Notes
Class A-3 XXXX% Asset Backed Notes
Class A-4 XXXX% Asset Backed Notes
PRICING AGREEMENT
-----------------
XXXX, 2XXX
[NAMES OF UNDERWRITERS]
Dear Sirs:
Reference is made to the Underwriting Agreement, dated XXXX, 2XXX (the
"Underwriting Agreement") relating to the purchase by [NAMES OF UNDERWRITERS],
severally and not jointly, of the above-referenced Class A-1, Class A-2, Class
A-3 and Class A-4 Notes (the "Underwritten Notes"), the provisions of which are
incorporated herein by reference. Capitalized terms used but not defined herein
have the meanings given them in the Underwriting Agreement.
Subject to the terms and conditions of the Underwriting Agreement, the
Seller agrees with the Underwriters that the purchase price for the Underwritten
Notes to be paid by the Underwriters shall be the percentage of the principal
amount (which percentage is equal to XXX% less the underwriting discount in the
case of the Class A-1 Notes, XXXX% less the underwriting discount in the case of
the Class A-2 Notes, XXXX% less the underwriting discount in the case of the
Class A-3 Notes and XXXX% less the underwriting discount in the case of the
Class A-4 Notes) set forth below:
=============================================================================
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Underwriters A-1 Notes A-2 Notes A-3 Notes A-4 Notes
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
=============================================================================
=============================================================================
--------- --------- ---------
-----------------------------------------------------------------------------
--------- ========= ---------
-----------------------------------------------------------------------------
========= ========= ========= =========
=============================================================================
=============================================================================
Percentage of
Underwritten Principal Underwriting
Notes Amount Discount Interest Rate
-----------------------------------------------------------------------------
Class A-1 Notes
-----------------------------------------------------------------------------
Class A-2 Notes
-----------------------------------------------------------------------------
Class A-3 Notes
-----------------------------------------------------------------------------
Class A-4 Notes
=============================================================================
The Seller also agrees with the Underwriters that:
The Trust is the ▇▇▇▇ Deere Owner Trust 2XXX.
The initial principal amount of the Certificates will be $XXXX.
The Owner Trustee will be U.S. Bank Trust National Association.
The Indenture Trustee will be The Bank of New York.
The Class A-1 final Payment Date shall be ▇▇▇▇, ▇▇▇▇, the Class A-2
final Payment Date shall be ▇▇▇▇, ▇▇▇▇, the Class A-3 final Payment Date shall
be XXXX, 2XXX and the Class A-4 final Payment Date shall be XXXX, 2XXX.
"Applicable Time" with respect to the Underwritten Notes means XXXX
[p.m.] on XXXX, 2XXX.
The date of the Preliminary Prospectus Supplement is XXXX, 2XXX.
For purposes of the Underwriting Agreement, the only information
furnished to the Seller by any Underwriter through either Representative for use
in the Preliminary Prospectus and the Prospectus consists of the following
information in the Preliminary Prospectus Supplement and the Prospectus
Supplement furnished on behalf of each Underwriter, which shall constitute
"Underwriters Information": (i) the concession and reallowance figures appearing
in the second paragraph under the heading "Underwriting" in the Prospectus
Supplement, (ii) the second and third sentences contained in the fourth
paragraph under the heading "Underwriting" in the Preliminary Prospectus
Supplement and the Prospectus Supplement, (iii) the information contained in the
tenth through fourteenth paragraphs under the heading "Underwriting" in the
Preliminary Prospectus Supplement and the Prospectus Supplement and (iv) the
second sentence under the heading "Risk Factors-Limited Ability to Resell Notes"
in the Preliminary Prospectus Supplement and the Prospectus Supplement.
2
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Seller and JDCC in accordance with its terms. Very
truly yours,
▇▇▇▇ DEERE RECEIVABLES, INC.
By:
--------------------------------
Name:
Title:
▇▇▇▇ DEERE CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAMES OF UNDERWRITERS]
By: XXXX,
as Representative of the Several Underwriters
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
XXXX,
as Representative of the Several Underwriters
By
--------------------------------------------
Name:
Title:
3
EXHIBIT A
Filed pursuant to Rule 433(d)
Registration Statement No. 333-130966-XX
FINAL TERM SHEET, dated XXXX, 2XXX
$XXXX
▇▇▇▇ Deere Owner Trust 2XXX
Issuing Entity
$ XXXX Class A-1 XXXX Asset Backed Notes
$ XXXX Class A-2 XXXX Asset Backed Notes
$ XXXX Class A-3 XXXX Asset Backed Notes
$ XXXX Class A-4 XXXX Asset Backed Notes
▇▇▇▇ Deere Receivables, Inc., Seller and Depositor
▇▇▇▇ Deere Capital Corporation, Sponsor and Servicer
Class A-1 Class A-2 Class A-3 Class A-4
Notes(3) Notes(3) Notes(3) Notes(3)
------------ ------------ ------------ ------------
Principal
Amount.........
Per Annum
Interest
Rate...........
Final
Scheduled
Payment
Date...........
Initial Public
Offering
Price .........
Ratings (▇▇▇▇▇'▇/S&P)
...................
Payment Date......
Weighted Average
Life(1)
CUSIP.............
(1) Pricing speed: XX% CPR
(2) Pricing speed: XX% CPR (with a 10% clean-up call)
(3) Subject to the considerations set forth in the preliminary prospectus, the
Notes are generally eligible for purchase by or on behalf of employee benefit
plans and other similar retirement plans and arrangements that are subject to
ERISA or to Section 4975 of the Code.
Trade Date: XXXX.
Expected Settlement Date: XXXX.
Initial Note Value: $XXXX (discount rate:XXX%)
Certificate Principal Amount: $XXXX
Initial Reserve Account Deposit: $XXXX
[NAMES OF UNDERWRITERS]
4
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that registration statement
and other documents the Depositor has filed with the SEC for more complete
information about the Depositor, the issuing entity, and this offering. You may
get these documents for free by visiting ▇▇▇▇▇ on the SEC Web site at
▇▇▇.▇▇▇.▇▇▇. Alternatively, the Depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling toll-free 1-800-XXX.
This free writing prospectus does not contain all information that is
required to be included in the base prospectus and the prospectus supplement.
5
Exhibit B
1. Information contained in the Final Term Sheet included as Exhibit A to the
Pricing Agreement.
2. Other Issuer Free Writing Prospectus:
3. Oral information not otherwise contained in the Final Term Sheet:
6