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EXHIBIT 1.1
EXECUTION COPY
JOHN
DEERE OWNER TRUST 2008
JOHN
DEERE RECEIVABLES, INC.
and
JOHN
DEERE CAPITAL CORPORATION
Class
A-1 2.74080% Asset Backed Notes
Class
A-2 3.63% Asset Backed Notes
Class
A-3 4.18% Asset Backed Notes
Class
A-4 4.89% Asset Backed Notes
UNDERWRITING AGREEMENT
April
7, 2008
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Banc of America Securities LLC
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
RBC Capital Markets Corporation
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c/o
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Merrill
Lynch, Pierce, Fenner & Smith
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Incorporated
4
World Financial Center, 11th Floor
New
York, New York 10080
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c/o
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J.P.
Morgan Securities Inc.
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270
Park Avenue, 10th Floor
New
York, New York 10017
Dear
Sirs:
John
Deere Receivables, Inc. (the “Seller”) and John
Deere Capital Corporation (“JDCC”) confirm their
agreement (the “Agreement”) with Merrill Lynch,
Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”), J.P. Morgan Securities Inc.
(“JPM”), Banc of America Securities LLC, BNP
Paribas Securities Corp., Deutsche Bank Securities Inc. and
RBC Capital Markets Corporation (collectively, the
“Underwriters” or “you”, which terms
shall also include any Underwriter substituted as provided in
Section 11), for whom Merrill Lynch and JPM are acting as
representatives (in such capacity Merrill Lynch and JPM 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
$643,870,000 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, or
containing the information set forth in, 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 prior
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 (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, 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 and as of the
Closing Date, the Preliminary Prospectus and the information
listed on Exhibit B to the Pricing Agreement, all considered
together (collectively, the “Disclosure Package”),
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 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 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.
(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 for issuance 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 (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), and will be entitled to the benefits of the
Indenture, and the related Certificates will be duly and
validly issued and outstanding. 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) In
its unconsolidated accounting records, JDCC will treat the
conveyance of receivables contemplated by Section 2.01 of the
Purchase Agreement 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.
(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”), each underwriter has
represented and agreed that with effect from and including the
date on which the Prospectus Directive is implemented in that
Relevant Member State (the “Relevant Implementation
Date”) it has not made and will not make an offer
of
Underwritten
Notes which are the subject of the offering contemplated by
the Prospectus Supplement to the public in that Relevant
Member State other than:
(1) to
legal entities which are authorised or regulated to operate in
the financial markets or, if not so authorised or regulated,
whose corporate purpose is solely to invest in
securities;
(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 €43,000,000; and (C) an
annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts;
(3) to
fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the lead underwriter;
or
(4) in
any other circumstances falling within Article 3(2) of the
Prospectus Directive,
provided that no such offer of Underwritten Notes shall
require the Seller or any Underwriter to publish a prospectus
pursuant to Article 3 of the Prospectus 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
“Prospectus Directive” means Directive 2003/71/EC
and includes any relevant implementing measure in each
Relevant Member State.
(ii) 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 Financial Services
and Markets Act (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
(iii) 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 and each
Underwriter agrees, severally and not jointly, 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
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 ,
599 Lexington Avenue, New York, New York 10022, or at such
other place as shall be agreed upon by the Representatives and
the Seller at 10:00 A.M. on April 16, 2008, 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, (ii) in the case of an Intex CDI file,
“issuer information” as defined in Rule 433(h)(2)
that is included in the Preliminary Prospectus or, following
the filing of the Final Term Sheet, the Final Term Sheet (the
“Intex Information”) or (iii) other customary
information that is not “issuer information” as
defined in Rule 433(h)(2), or that is not otherwise an Issuer
Free Writing Prospectus; provided that (x) no such Underwriter
Free Writing Prospectus 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 above)
“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.
(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 make any amendment to the Registration Statement,
whether pursuant to a filing 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 or covenants 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 July 7, 2008 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 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 1933 Act) 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.
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
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