Exhibit 1.1
EXECUTION COPY
JOHN DEERE OWNER TRUST 2009-B
JOHN DEERE RECEIVABLES, INC.
and
JOHN DEERE CAPITAL CORPORATION
Class A-1 0.34463% Asset Backed
Notes
Class A-2 0.85% Asset Backed
Notes
Class A-3 1.57% Asset Backed
Notes
Class
A-4 2.33% Asset Backed Notes
UNDERWRITING
AGREEMENT
October 1, 2009
Deutsche
Bank Securities Inc.
Citigroup
Global Markets Inc.
BBVA
Securities Inc.
Mitsubishi
UFJ Securities (USA), Inc.
Santander
Investment Securities Inc.
TD
Securities (USA) LLC
|
|
Deutsche Bank Securities
Inc.
|
60 Wall Street, 3rd Floor
|
|
Citigroup Global Markets
Inc.
|
388 Greenwich Street, 19th
Floor
Dear Sirs:
John Deere Receivables, Inc. (the
“Seller” or “JDRI”) and John Deere Capital
Corporation (“JDCC”) confirm their agreement (the
“Agreement”) with Deutsche Bank Securities Inc.
(“DBS”), Citigroup Global Markets Inc.
(“Citi”), BBVA Securities Inc., Mitsubishi UFJ
Securities (USA), Inc., Santander Investment Securities Inc. and TD
Securities (USA) LLC (collectively, the “Underwriters”
or “you”, which terms shall also include any
Underwriter substituted as provided in Section 11), for whom DBS
and Citi are acting as representatives (in such capacity DBS and
Citi 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 $726,960,000 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. 333-151821), 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.
Certain of the Underwriters are financial
institutions that appear on the list of eligible TALF Agents
available in the TALF Standing Loan Facility Procedures (each, in
such capacity, a “TALF Agent”), and may be a party to
that certain Master Loan and Security Agreement among the Federal
Reserve Bank of New York (the “FRBNY”), as Lender,
various TALF Agents party thereto, The Bank of New York Mellon, as
Administrator, and The Bank of New York Mellon, as Custodian,
posted on the website of the FRBNY (in the most recently updated
version) at http://www.newyorkfed.org/markets/talf_docs.html) (the
“MLSA”) in connection with the Term Asset-Backed
Securities Loan Facility
(“TALF”). References to TALF in this
Agreement include any terms and conditions, frequently asked
questions and documents posted by the FRBNY at
http://www.newyorkfed.org/markets/talf.html. The rights,
benefits and remedies of the Underwriters under this Agreement will
be for the benefit of, and will be enforceable by, each Underwriter
not only in such capacity but also in its capacity as a TALF Agent,
if such Underwriter is also a TALF Agent, and as a signatory to a
letter agreement making such TALF Agent a party to the
MLSA. References to an Underwriter in its capacity as a
TALF Agent in this Agreement apply only to entities that in fact
are “TALF Agents” as defined above.
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.
(xiv) As
of the Representation Date (assuming for such purposes that the
Underwritten Notes receive the expected ratings identified in the
Preliminary Prospectus) and at the Closing Time the Underwritten
Notes satisfy all requirements to be “eligible
collateral” (“Eligible Collateral”) as that term
is defined in the MLSA. No representation or warranty is
made by the Seller or JDCC as to the eligibility of a borrower
under TALF.
(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 1(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 October 9, 2009, 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”), (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, or (iv) the eligibility of the Notes under TALF and the
TALF haircuts; 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 and, with respect to clause (xi) as it relates to JDCC, JDCC
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 December 30, 2009 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).
(xi) For
so long as any of the Underwritten Notes remain outstanding, JDCC
will comply with its obligations under paragraph 5 of the TALF
Certification (i) to provide notice to the FRBNY and all registered
holders of the Underwritten Notes in writing if certain statements
are not correct when made or have ceased to be correct no later
than 9:00 a.m. New York City time on the fourth business day
following such determination, and (ii) to issue a press release
regarding such determination no later than 9:00 a.m. New York City
time on the fourth business day following such determination, and
JDCC will promptly provide each Underwriter a copy of each such
notification.
(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, (x) all expenses
incurred for preparing, printing and distributing each Issuer Free
Writing Prospectus to investors or prospective investors and (xi)
all costs and expenses associated with qualifying the Underwritten
Notes as Eligible Collateral.
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 (and addressed to
each Underwriter), 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.
(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 (other than the Trust
Agreement) 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 to which JDCC is a party has been duly authorized,
executed and delivered by JDCC and, assuming due authorization,
executio
