▇▇▇▇ DEERE B.V., Issuer
DEERE & COMPANY, Guarantor
Medium-Term Notes
Due from 9 Months to 30 Years from Date of Issue
Unconditionally Guaranteed by Deere & Company
DISTRIBUTION AGREEMENT
March 30, 2001
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
John Deere B.V., a corporation duly organized and existing under the
laws of The Netherlands (the "Company"), confirms its agreement with ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (each, an
"Agent", and collectively, the "Agents"), with respect to the issue and sale by
the Company of its Medium-Term Notes, Due from 9 Months to 30 Years from Date of
Issue Unconditionally Guaranteed by Deere & Company as described herein (the
"Notes"). Payment of principal of, and premium, if any, and interest, if any, on
the Notes will be unconditionally guaranteed by Deere & Company, a Delaware
corporation, as guarantor (the "Guarantor"), in accordance with the terms of the
guarantee issued in respect thereof (each a "Guarantee"). The Notes are to be
issued as a series of the Company's senior indebtedness under an indenture,
dated as of March 30, 2001 (the "Indenture") among the Company, the Guarantor
and The Chase Manhattan Bank (successor by merger to The Chase Manhattan Bank
(National Association)), as trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance and sale of up to U.S. $950,000,000
aggregate initial offering price (or its equivalent, based upon the applicable
exchange rate at the time of the applicable trade date, in one or more other
currencies designated by the Company) of Notes through or to one or more of the
Agents pursuant to the terms of this Agreement and pursuant to the Distribution
Agreement of even date herewith by and between the Guarantor and the Agents with
respect to the issue and sale by the Guarantor of its Medium-Term Notes, Series
D, Due from 9 Months to 30 Years from Date of Issue. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold through or to one or more of
the Agents pursuant to the terms of this Agreement, all as though the issuance
of such Notes were authorized as of the date hereof.
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This Agreement provides both for the sale of Notes by the Company
through the Agents directly to purchasers, in which case the Agents will act as
agents of the Company in soliciting purchases of the Notes, and (as may from
time to time be agreed to by the Company and an Agent) to an Agent as principal
for resale to investors and other purchasers. In addition, notwithstanding
anything herein to the contrary, the Company may, without the consent of the
Agents, solicit or accept offers to purchase Notes from any person for their
account ("direct placements"). It is understood that the Agents are not acting
as agents of the Company in direct placements.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "SEC") a registration statement on Form S-3 (No.
333-47264) for the registration of debt securities of the Guarantor, warrants to
purchase such debt securities, preferred stock, depositary shares, common stock,
warrants to purchase common stock, currency, indexed and other warrants of the
Guarantor as well as guaranteed debt securities of the Company, including the
Notes, under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of the rules and
regulations of the SEC under the 1933 Act (the "1933 Act Regulations").
Registration statement on Form S-3 (No. 333-47264) has been declared effective
by the SEC and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statements (and any further
registration statements which may be filed by the Company and the Guarantor for
the purpose of registering additional Notes and in connection with which this
Agreement is included as an exhibit) and the prospectuses constituting a part
thereof, and any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or as otherwise amended or supplemented
pursuant to the 1933 Act or otherwise, are referred to herein collectively as
the "Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company or the
Guarantor for use in connection with the offering of the Notes which is not
required to be filed by the Company or the Guarantor pursuant to Rule 424(b) of
the 1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, without the consent of the Agents, the Company and
the Guarantor hereby (i) appoint the Agents as agents for the purpose of
soliciting purchases of Notes from the Company by others and (ii) agree that
whenever the Company determines to sell Notes directly to an Agent as principal
for resale to others, it will enter into a Terms Agreement (hereafter defined)
relating to such sale in accordance with the provisions of Section 3(b) hereof.
Subject to the provisions of Section 3(b), the Agents are not authorized to
appoint sub-agents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes. The Company and the Guarantor
may, without the consent of the Agents, appoint other persons as agents for the
purpose of soliciting purchases of Notes from the Company by others; PROVIDED,
HOWEVER, that in the event that the Company or the Guarantor, as the case may
be, so appoints one or more other persons, the Company or the Guarantor, as the
case may be, and such person or persons shall execute a
33
counterpart to this Agreement, whereupon from and after the date of such
execution, the term "Agent" shall include such person or persons and such
person or persons shall be subject to the terms and conditions stated herein.
(b) REASONABLE BEST EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS. Upon
receipt of instructions from the Company each Agent will use its reasonable best
efforts to solicit purchases of such principal amount of Notes as the Company
and such Agent shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time. Each Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes, other than those
offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, in
whole or in part, and any such rejection shall not be deemed a breach of such
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of Notes, in whole or in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In soliciting
purchases of Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company. Such Agent shall not have any liability to the Company in the event
that any such purchase is not consummated for any reason; PROVIDED, HOWEVER,
that the foregoing shall not relieve any Agent for any liability such Agent may
have from a breach of its obligations hereunder. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but an Agent may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made pursuant to a Terms Agreement in
accordance with the provisions of Section 3(b) hereof.
(d) RELIANCE. The Company, the Guarantor and the Agents agree that any
Notes, the placement of which an Agent arranges, shall be placed by such Agent,
and any Notes purchased by an Agent shall be purchased, in reliance upon the
representations, warranties, covenants and agreements of the Company and the
Guarantor contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Guarantor, jointly and severally, represent and
warrant, to each Agent as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of Notes (whether through such Agent
as agent or to such Agent as principal), as of the date of each delivery of
Notes (whether through such Agent as agent or to such Agent as principal) (the
date of each such delivery to an Agent as principal being hereafter referred to
as a "Settlement Date"), and as of the times referred to in Section 7(b) hereof
(each of the times referenced above being referred to hereafter as a
"Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective, complied and, as
of the applicable Representation Date, will comply in all material
respects with the requirements of the
34
1933 Act, the 1933 Act Regulations and the 1939 Act and the rules
and regulations of the SEC promulgated thereunder. The Registration
Statement, at the time the Registration Statement became effective,
did not, and, at each time thereafter at which any amendment to the
Registration Statement becomes effective and any Annual Report on
Form 10-K is filed by the Guarantor with the SEC and as of each
Representation Date, will not, include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof, does not, and as
of each Representation Date, will not, include 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; PROVIDED, HOWEVER, that
the representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with
information furnished to the Guarantor or the Company in writing by
any Agent expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which
constitutes the Statements of Eligibility under the 1939 Act on Form
T-1 of each Trustee under the Indenture.
(ii)The financial statements and the supporting
schedules included or incorporated by reference in the Registration
Statement and Prospectus present fairly the financial position of the
Company, the Guarantor and its subsidiaries on a consolidated basis, as
at the dates indicated, and the respective results of operations for
the periods specified, in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved.
(iii) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations thereunder, and, when read together and with the other
information in the Prospectus, do not and will not include 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 are made, not
misleading.
(iv)Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as may otherwise be stated in or contemplated by the
Registration Statement and Prospectus, (A) there has not been any
material adverse change in the financial condition of the Company or of
the Guarantor and its subsidiaries considered as one enterprise, or in
the results of operations or business prospects of the Company or of
the Guarantor and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business and (B) there
have not been any transactions entered into by the Company or by the
Guarantor or its subsidiaries other than (1) transactions in the
ordinary course of business including borrowings for the acquisition of
receivables and other operations or (2) transactions which are not
material in relation to the Company or to the Guarantor and its
subsidiaries considered as one enterprise.
35
(v) Each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation with power
and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement.
(vi)The execution and delivery of this Agreement and
the Indenture, the endorsement of the Guarantees upon the Notes by the
Guarantor and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
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 Company, the Guarantor or any of its subsidiaries,
pursuant to any indenture, loan agreement, contract or other agreement
or instrument to which the Company, the Guarantor or any of its
subsidiaries is a party or by which the Company, the Guarantor or any
such subsidiary may be bound or to which any of the property or assets
of the Company, the Guarantor or any such subsidiary is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Guarantor or any of its subsidiaries or the
provisions of the Deed of Incorporation of the Company or, to the best
of its knowledge, any order, rule or regulation applicable to the
Company, the Guarantor or any of its subsidiaries of any court or of
any federal, state or other regulatory authority or other governmental
body having jurisdiction over the Company, the Guarantor or any such
subsidiary.
(vii) The Notes have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor in accordance with this Agreement, the Notes will be valid and
legally binding obligations of the Company 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.
(viii) The Guarantees endorsed upon the Notes have
been duly and validly authorized by the Guarantor and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture, the Guarantees will be the valid and
legally binding obligations of the Guarantor 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; each Guarantee
conforms in all material respects to the description thereof contained
in the Prospectus.
(ix)The statements in the Prospectus under the
caption "Description of Notes", "Special Provisions Relating to Foreign
Currency Notes" and "Description of Debt Securities", insofar as they
purport to summarize certain provisions of documents specifically
referred to therein, are accurate summaries of such provisions.
36
(x) The accountants who certified the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus are independent public accountants within
the meaning of the 1933 Act and the 1933 Act Regulations.
(xi)The Notes, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture, will be excluded or exempted from the provisions of the
Commodity Exchange Act.
(xii) The Company is not an "investment company" or
an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xiii) Except as described in the Registration
Statement and the Prospectus, or as has already been paid or authorized
for payment, no stamp duty or similar tax or duty is payable by the
Agents or the holders of the Notes under applicable laws or regulations
of The Netherlands or any political subdivision thereof or authority or
agency therein in connection with the issuance and delivery of the
Notes as contemplated by this Agreement and the Indenture or in
connection with the execution, delivery or performance of this
Agreement, the Indenture or the Notes.
(xiv) Except as otherwise disclosed in the
Registration Statement and Prospectus, the payment of amounts by the
Guarantor under the Guarantees or by the Company under the Notes in
respect of the principal thereof or any premium or interest thereon to
the Agents or to a holder of Notes that is a United States Person as
defined in the Prospectus, with no connection to The Netherlands except
mere ownership of the Notes, may be made without withholding or
deduction for, or on account of, any tax, assessment, duty or other
charge under the current laws of The Netherlands or any political
subdivision thereof or authority or agency therein.
(xv)To their best knowledge, the Company, the
Guarantor and their respective obligations under this Agreement, the
Indenture, the Guarantees and the Notes, are subject to civil and
commercial law and to suit; and none of the Company, the Guarantor or
any of their respective properties, assets or revenues have any right
of immunity, on the grounds of sovereignty, from any legal action, suit
or proceeding, from the giving of any relief in any such legal action,
suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court in The Netherlands or any New York State or U.S. federal
court, as the case may be, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or
from execution or enforcement of a judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of a
judgment, in any such court, with respect to their respective
obligations or liabilities or any other matter under or arising out of
or in connection with this Agreement, the Indenture, the Guarantees or
the Notes, and, to the extent that the Company, the Guarantor or any of
the properties, assets or revenues of the Company or the Guarantor may
have or may hereafter become entitled to any such right of immunity in
any such court in which proceedings may at any time be commenced, the
Company or the Guarantor has waived or will waive such right to the
extent permitted by
37
law and has consented to such relief and enforcement as provided in
the Indenture, the Guarantees or the Notes.
(xvi) Except as described in the Registration
Statement and Prospectus and subject to the qualifications set forth in
Section 4 of the opinion referred to in Section 5(a)(5) hereof, any
final judgment for a fixed or readily calculable sum of money rendered
by any court of the State of New York or New York State or U.S. Federal
Court sitting in New York City having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the
Company or the Guarantor based upon this Agreement, the Indenture, the
Guarantees or the Notes would normally be incorporated into a judgment
rendered by the courts of The Netherlands in a civil matter if such
court finds that (i) such court had jurisdiction over the original
proceedings, (ii) the judgment was obtained in compliance with
principles of due process, (iii) the judgment is final and conclusive
such that all appeals have been exhausted and no other remedy could be
obtained from a judicial body, and (iv) the judgment does not
contravene the public policy or the public order of The Netherlands.
(xvii) The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated A2 by
▇▇▇▇▇'▇ Investors Service, Inc. and A+ by Standard & Poor's Ratings
Services, or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a) hereof.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Guarantor or the Company and delivered to the Agents or to counsel for the
Agents in connection with an offering of Notes or the sale of Notes to an Agent
as principal shall be deemed a representation and warranty by the Guarantor or
the Company, as the case may be, to the Agents as to the matters covered thereby
on the date of such certificate and, to the extent therein provided, at each
Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company and of the Guarantor, to
use its reasonable best efforts to solicit offers to purchase Notes upon the
terms and conditions and in accordance with the selling restrictions set forth
herein and in the Prospectus. Each of the Agents severally represent and agree
that any advertisements or offering materials used in connection with the
offering or solicitation of the Notes will include a selling restriction,
substantially to the effect set forth in Section 4(1) of this Agreement.
Each of the Company and the Guarantor reserves the right, in its sole
discretion, to suspend solicitation of purchases of Notes through the Agents, as
agents, commencing at any time for any period of time or permanently. Upon
receipt of instructions from the Company or the Guarantor, the Agents will
forthwith suspend solicitation of purchases from the Company until such time as
the Company or the Guarantor has advised the Agents that such solicitation may
be resumed.
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The Company and the Guarantor jointly and severally agree to pay each
Agent a commission, in the form of a discount or by such other means agreed to
by the Company and such Agent, equal to the applicable percentage of the price
to the public of each Note sold by the Company as a result of a solicitation
made by such Agent as set forth in EXHIBIT A hereto. Without the prior approval
of the Company or the Guarantor, the Agents may not re-allow any portion of the
commission payable pursuant hereto to dealers or purchasers in connection with
the offer and sale of any Notes through any such Agent as agent.
The purchase price, interest rate or formula, maturity date and other
terms of the Notes shall be agreed upon by the Company, the Guarantor and the
applicable Agent and set forth in a pricing supplement to the Prospectus to be
prepared following each acceptance by the Company of an offer for the purchase
of Notes. Except as may be otherwise provided in such supplement to the
Prospectus, the Notes will be issued in denominations of U.S. $1,000 or any
amount in excess thereof which is an integral multiple of U.S. $1,000. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement and confirmed in writing as described below
between the applicable Agent, the Company and the Guarantor) is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company, the Guarantor and the applicable Agent.
Each such Terms Agreement, whether oral (and confirmed in writing, which may be
by facsimile transmission) or in writing, shall be with respect to such
information (as applicable) as is specified in EXHIBIT B hereto. An Agent's
commitment to purchase Notes as principal pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and warranties
of the Company and the Guarantor herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by the applicable Agent pursuant
thereto, the price to be paid to the Company for such Notes, the time and place
of delivery of and payment for such Notes and such other provisions (including
further terms of the Notes) as may be mutually agreed upon. Such Terms Agreement
shall also specify the requirements for the officer's certificate, opinions of
counsel, comfort letter and stand-off agreement pursuant to Sections 7(b), 7(c),
7(d), and 4(j), respectively, hereof. In addition, the applicable Agent is
authorized to engage the services of any broker or dealer in connection with the
offer or sale of Notes which such Agent has purchased as principal. The
applicable Agent may sell such Notes to any broker or dealer at all or any
portion of the discount to be received by such Agent from the Company.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with respect
to the sale of Notes shall be agreed upon from time to time by the Agents and
the Company (the "Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
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SECTION 4. COVENANTS OF THE COMPANY AND THE GUARANTOR.
Each of the Guarantor and the Company, jointly and severally, covenants
with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. Either the Company or the Guarantor will
notify the Agents immediately of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus, (iii) any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) the issuance by
the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or (v) any
written notification received by the Company of a change in the rating assigned
by any nationally recognized statistical rating organization to the Program or
any debt securities (including the Notes) of the Company, or the public
announcement by any nationally recognized statistical rating organization that
it has under review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities. The Company and the Guarantor 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.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. Except as otherwise provided in
this subsection or subsection (k) of this Section, either the Company or the
Guarantor will (i) give the Agents notice of its intention to file (a) any
additional registration statement with respect to the registration of additional
Notes to be distributed pursuant to this Agreement or (b) any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, whether
by the filing of documents pursuant to the 1933 Act, the 1934 Act or otherwise;
(ii) furnish the Agents with copies of any document referred to in clause (i)
above proposed to be filed a reasonable time in advance of filing; and (iii)
make available to the Agents copies of documents so filed promptly upon the
filing thereof. Notwithstanding the foregoing, except as set forth below, the
Guarantor shall not be required to give any Agent notice of its intention to
file, to furnish any Agent a copy of in advance of filing, or to make available
to any Agent, (i) Quarterly Reports on Form 10-Q, any Current Report on Form 8-K
that includes solely the financial and other information referred to in
subsection (e) or (f) of this Section (including a press release containing such
information) or any filings pursuant to Section 14 of the 1934 Act, provided
that the Guarantor shall make available to each Agent copies of such documents
promptly after the filing thereof, and provided, further, that if any such
document is to be filed in order that the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances then
existing, then the Company or the Guarantor shall give immediate notice (prior
to the filing of any such document) to each Agent to cease solicitations of
offers to purchase the Notes in its capacity as agent and to cease sales of any
Notes an Agent may then own as principal pursuant to a Terms Agreement, (ii) any
pricing supplement to the Prospectus in connection with a sale of Notes (except
that a pricing supplement shall be provided to the Agent who solicits the Notes
to which such pricing supplement relates), (iii) any amendment or supplement to
the Prospectus that relates exclusively to an offering of securities other than
Notes or (iv) any Current Report on Form 8-K filed solely for the purpose of
incorporating an exhibit
40
by reference into a registration statement, except that the Guarantor shall
make available to each Agent any such Current Report on Form 8-K promptly
after the filing thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company and the Guarantor will deliver to each Agent one signed and as many
conformed copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
such Agent may reasonably request. The Company and the Guarantor will furnish to
each Agent as many copies of the Prospectus (as amended or supplemented) as such
Agent shall reasonably request so long as an Agent is required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Notes.
(d) REVISIONS OF PROSPECTUS - MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of the Company, the Guarantor or in the reasonable
opinion of counsel for the Agents or counsel for the Guarantor, to further amend
or supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the opinion of the Company, the Guarantor or in
the reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company and the
Guarantor shall give immediate notice to each Agent to cease the solicitation of
offers to purchase the Notes in its capacity as agent and to cease sales of any
Notes it may then own as principal pursuant to a Terms Agreement, and the
Company and the Guarantor will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements.
(e) PROSPECTUS REVISIONS - PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, promptly after there shall
be released to the general public, interim financial statement information
related to either the Company or the Guarantor, which information is filed
pursuant to the 1934 Act, with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information with respect to
any fiscal year, the Company and the Guarantor shall cause the Registration
Statement and the Prospectus to be amended or supplemented to include or
incorporate by reference capsule financial information with respect thereto and
corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(f) PROSPECTUS REVISIONS - AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, promptly after there shall
be released to the general public, financial information included in or derived
from the audited financial statements, which information is filed pursuant to
the 1934 Act, of either the Company or the Guarantor for the preceding fiscal
year, the Company and the Guarantor shall cause the Registration Statement and
41
the Prospectus to be amended, whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such
audited financial statements and the report or reports, and consent or consents
to such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(g) EARNINGS STATEMENTS. The Guarantor will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Guarantor's fiscal quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) BLUE SKY QUALIFICATIONS. The Company and the Guarantor will
endeavor, in cooperation with the Agents, to qualify the Notes for offering and
sale under the applicable securities laws of such states and other jurisdictions
of the United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; PROVIDED, HOWEVER, that neither the Guarantor nor the Company shall
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified. The
Company and the Guarantor will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes have been qualified
as above provided. The Company and the Guarantor will promptly advise the Agents
of the receipt by the Company or the Guarantor of any notification with respect
to the suspension of the qualification of the Notes for sale in any such
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(i) 1934 ACT FILINGS. The Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a) or 14
of the 1934 Act.
(j) STAND-OFF AGREEMENT. If required pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company and the Guarantor will not, without
the applicable Agent's prior consent, offer or sell in the United States, or
enter into any agreement to so sell, any debt securities of the Company (other
than (i) the Notes that are to be sold pursuant to such Terms Agreement, (ii)
debt securities sold in the United States with maturities of less than nine
months in the ordinary course of business and (iii) debt securities sold outside
the United States with maturities of less than twelve months in the ordinary
course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. Neither the Company nor the
Guarantor shall be required to comply with the provisions of subsections (b),
(d), (e) or (f) of this Section during any period from the time (i) the Agents
shall have suspended solicitation of purchases of the Notes in its capacity as
agent pursuant to a request from the Company or the Guarantor and (ii) neither
Agent shall hold any Notes as principal purchased pursuant to a Terms Agreement,
to the time the Company and the Guarantor shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently enter into a new
Terms Agreement with an Agent.
42
(l) NETHERLANDS SELLING RESTRICTIONS. None of the Company, the
Guarantor or any person acting on its or their behalf, will at any time offer,
sell, transfer or deliver, whether directly or indirectly, the Notes as part of
their initial distribution or at any time thereafter, to any person (including
legal entities) established, domiciled or resident in The Netherlands.
Furthermore, the Company represents and agrees that the offering, together with
the documents and advertisements in which the offering is made or announced will
be in compliance with the applicable legal requirements of the United States of
America, which is the jurisdiction in which the persons to whom the offer is
directed are established, domiciled or resident. Prior to any offering of the
Notes, the Company covenants and agrees to submit a statement to this effect to
the Dutch Securities Supervision Board (STICHTING TOEZICHT EFFECTENVERKEER)
pursuant to Article 3, paragraph 2 under (c) of the Exemption Regulation
pursuant to the Dutch Act on the Supervision of the Securities Trade 1995. The
Company and the Guarantor covenant and agree to mention this statement in all
offer documents relating to Notes offered or issued by the Company (including
advertisements and other documents announcing the offer).
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents as agents of the Company and the
Guarantor to solicit offers to purchase the Notes, the obligations of any
purchasers of the Notes sold through an Agent as agent, and any obligation of an
Agent as principal to purchase Notes pursuant to a Terms Agreement will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantor herein and to the accuracy of the statements of the
Company's and the Guarantor's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company and the Guarantor of all their covenants and agreements herein contained
and to the following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) OPINION OF GUARANTOR COUNSEL. The opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special United States counsel to the Company
and counsel to the Guarantor, to the effect that:
(i.) The Guarantor is a corporation duly
incorporated and validly existing in good standing
under the laws of the State of Delaware;
(ii.) Assuming the Notes have been duly
authorized by the Company, when duly executed by the
Company and completed and authenticated by the
Trustee in accordance with the Indenture and
delivered against payment pursuant to this Agreement,
the Notes, in the form certified by an authorized
officer of the Company, will be valid and binding
obligations of the Company 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
43
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) and to provisions of law that require that
a judgment for money damages rendered by a court in
the United States be expressed only in United States
dollars;
(iii.)This Agreement has been duly
authorized, executed and delivered by the Guarantor;
(iv.) The Guarantees have been duly
authorized by the Guarantor and when the Guarantees
endorsed on the Notes are duly executed and delivered
by the Guarantor and completed and authenticated by
the Trustee in accordance with the terms of the
Indenture and the Agreement such Guarantees will be
valid and legally binding obligations of the
Guarantor entitled to the benefits provided by 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) and to provisions of law that require that
a judgment for money damages rendered by a court in
the United States be expressed only in United States
dollars;
(v.) The Indenture has been duly authorized,
executed and delivered by the Guarantor and, assuming
due authorization, execution and delivery by the
Company and the Trustee, constitutes a valid and
binding obligation of the Company and the Guarantor,
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) and to provisions of
law that require that a judgment for money damages
rendered by a court in the United States be expressed
only in United States dollars;
(vi.) The statements in the Prospectus under
the captions "Description of Notes", "Description of
Debt Securities" and "Special Provisions Relating to
Foreign Currency Notes", insofar as they purport to
summarize certain provisions of documents
specifically referred to therein, are accurate
summaries of such provisions;
(vii.)The Indenture has been duly qualified
under the 1939 Act;
44
(viii.) The Registration Statement is
effective under the 1933 Act and, to the best of
their knowledge and information, no stop order
suspending the effectiveness of the Registration
Statements have been issued under 1933 Act or
proceedings therefor initiated or threatened by the
SEC;
(ix.) The Registration Statement and the
Prospectus (except for the financial statements and
other financial data included therein or omitted
therefrom and the Statements of Eligibility of the
respective Trustees on Form T-1, as to which such
counsel need express no opinion), excluding the
documents incorporated by reference therein, 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 rules and regulations of
the SEC under the 1933 Act;
(x.) Each document incorporated by
reference in the Prospectus (except for the
financial statements and other financial data
included therein or omitted therefrom, as to which
such counsel need express no opinion), as of the
date it was filed with the SEC, appears on its face
to have been appropriately responsive in all
material respects to the requirements of the 1934
Act and the rules and regulations of the SEC
thereunder;
(xi.) The execution and delivery of this
Agreement, the fulfillment of the terms herein set
forth and the consummation of the transactions herein
contemplated will not conflict with the charter or
by-laws of the Guarantor;
(xii.) The information contained in the
Prospectus under the caption "United States
Taxation", to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by
such counsel and is correct;
(xiii.) The Company is not an "investment
company" or an entity "controlled" by an "investment
company" as such terms are defined in the 1940 Act.
(2) OPINION OF GENERAL COUNSEL TO THE GUARANTOR. The
opinion of the General Counsel of the Guarantor, or Associate
General Counsel of the Guarantor, to the effect that (i) the
Guarantor is duly qualified to transact business and is in good
standing in the states of Illinois and Iowa, (ii) the execution
and delivery of this Agreement and the Indenture, the endorsement
of the Guarantee on the Notes, the fulfillment of the terms herein
and therein set forth and the consummation of the transactions
herein and therein contemplated will not conflict with or
constitute a breach of, or default under, the charter or by-laws
of the Guarantor, or any agreement, indenture or other instrument
known to such counsel of which the Company, the Guarantor or any
of the Guarantor's subsidiaries
45
is a party or by which any of them is bound, or any law,
administrative regulation or administrative or court order known
to him applicable to the Company, the Guarantor or any of the
Guarantor's subsidiaries.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of
▇▇▇▇▇ & Wood LLP, counsel to the Agents, covering the matters
referred to in subsection (a)(1) of this Section under the
subheadings (i) to (ix), inclusive.
(4) DISCLOSURE OPINION. In giving their opinions
required by subsections (a)(1) and (a)(3) of this Section,
▇▇▇▇▇▇▇▇ & Sterling and Brown & Wood LLP shall each additionally
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 or the Prospectus, other than those
mentioned in Section 5(a)(1)(vi) and Section 5(a)(1)(xii) (in the
case of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ only). Such counsel has, however,
generally reviewed and discussed such statements with certain
officers and employees of the Company, the Guarantor and with
their respective auditors. In the course of such review and
discussion, no facts have come to the attention of such counsel to
lead them to believe that (A) the Registration Statement (except
for the financial statements and other financial data included
therein or omitted therefrom and the Statements of Eligibility of
the respective Trustees on Form T-1, as to which such counsel has
not been requested to comment), at the time the Registration
Statement or any such amendment became effective or at the time an
Annual Report on Form 10-K was filed by the Guarantor (whichever
is later), or at the date of any Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or (B) the Prospectus (except
for the financial statements and other financial data included
therein or omitted therefrom, as to which such counsel has not
been requested to comment), at the time the Prospectus was issued,
at the time any amendment or supplement to the Prospectus was
issued or at the date hereof, 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.
(5) OPINION OF COMPANY COUNSEL. The opinion of ▇▇▇▇▇
& ▇▇▇▇▇▇▇ / ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company, to the
effect that:
(i.) The Company is a private company with
limited liability duly incorporated and validly
existing under the laws of The Netherlands;
(ii.) This Agreement, the Indenture and the
Guarantees have been duly authorized, executed,
sealed and attested and delivered by the Company in
accordance with the Resolution and when duly
executed, sealed and attested and delivered by the
other parties thereto will constitute valid and
legally binding instruments of the Company
enforceable against the Company in accordance with
their terms;
46
(iii.) The Notes have been duly authorized
and, when the final terms thereof have been duly
established and approved and when duly executed by
the Company, in each case pursuant to the authority
granted in the Resolution, and authenticated by the
Trustee in accordance with the Indenture and
delivered to and paid for by the purchasers thereof;
(iv.) The Company has the corporate power
and corporate authority to execute and deliver and
perform the obligations on its part to be performed
under this Agreement, the Indenture, the Guarantees
and the Notes;
(v.) The execution and delivery of this
Agreement, the Guarantees, the Indenture and the
Notes, the fulfillment of the terms herein and
therein set forth and the consummation of the
transactions herein and therein contemplated will not
conflict with or constitute a breach of, or default
under, the Deed of Incorporation or any law or
administrative regulation of general application (as
opposed to applicable to one or more specified
natural or legal persons);
(vi.) The choice of New York law as the law
governing this Agreement, the Indenture, the Notes
and the Guarantees is a valid choice of law and would
be given effect by the courts of The Netherlands with
respect to the obligations of the parties thereunder;
(vii.) In order to ensure the legality,
validity, enforceability or admissibility in evidence
of this Agreement, the Indenture, the Guarantees or
any of the Notes, it is not necessary that this
Agreement, the Indenture or the Guarantees or any of
the Notes be filed, recorded or enrolled with any
public authority, governmental agency or governmental
department of The Netherlands;
(viii.) The submission to the jurisdiction
of any United States Federal court or state court
sitting in the Borough of Manhattan, the City of New
York, State of New York, and the irrevocable waiver
of any objection to the laying of venue of a
proceeding in such court and of any immunity to
jurisdiction of such court, to which it is or may
become entitled, and the designation of CT
Corporation as the agent of the Company to receive
service of process with respect to any proceedings of
or in the courts of the United States of America
arising out of or relating to this Agreement and the
Indenture are valid and binding on the Company;
(ix.) All authorizations, consents or
approvals of, or registrations or filings with, any
governmental department or regulatory authority of or
within The Netherlands which are required for the
execution and delivery of the Guarantees, the Notes,
the Indenture and this Agreement by the Company or
the consummation by the Company of the transactions
47
contemplated thereunder have been obtained or made
and are in full force and effect;
(x.) There is no treaty regarding the
recognition and enforcement of judicial decisions
between the U.S. and The Netherlands. Therefore, a
final judgment for a definite sum duly obtained
against the Company from a court of the State of New
York or any New York State or U.S. Federal Court
sitting in New York City will not be recognized and
enforced by a Dutch court and it will be necessary to
bring the matter before the competent Dutch court.
The claimant(s) may, in the course of these
proceedings, submit the judgment rendered by the New
York or U.S. Federal court sitting in New York City.
Under current practice, a Dutch court normally will
issue a judgment incorporating the judgment rendered
by such court in a civil matter if it finds that (i)
such court had jurisdiction over the original
proceedings, (ii) the judgment was obtained in
compliance with principles of due process; (iii) the
judgment is final and conclusive such that all
appeals have been exhausted and no other remedy could
be obtained from a judicial body, and (iv) the
judgment does not contravene the public policy or the
public order of The Netherlands. Such counsel shall
also state that it is not aware of any reason why in
general the enforcement of the obligations of the
Company under this Agreement and the Indenture and
the Notes would be in conflict with current public
policy in The Netherlands;
(xi.) This Agreement, the Indenture, the
Notes and the Guarantees, when issued, authenticated
and delivered pursuant to the provisions of this
Agreement and the Indenture are in proper legal form
under the laws of The Netherlands for the enforcement
thereof against the Company or the Guarantor, as the
case may be, in the courts of The Netherlands;
(xii.) No withholding, stamp duty, stamp
duty reserve tax or issue, documentary, registration
or other similar tax imposed by any government
department or other taxing authority of or in The
Netherlands is payable by the Agents or the holders
of the Notes in connection with the issue and
delivery of the Notes pursuant to this Agreement or
the execution, delivery and performance of this
Agreement, the Indenture, the Notes or the
Guarantees;
(xiii.) The Company is subject to civil and
commercial law with respect to its obligations under
this Agreement, the Indenture and the Notes and
neither the Company nor any of its properties or
assets sited in The Netherlands enjoy any right of
immunity, on the grounds of sovereignty or otherwise,
with respect to its obligations under this Agreement,
the Indenture and the Notes from any legal action,
suit or proceeding, from the giving of any relief in
any such legal action, suit or proceeding, from
set-off or counterclaim, from the jurisdiction of any
48
court in The Netherlands or any Federal court of the
United States of America or any court of the State of
New York, in each case located in the Borough of
Manhattan in the City of New York, from service of
process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, from
execution or enforcement of judgment, or other legal
process;
(xiv.) None of the holders of the Notes
outside The Netherlands or any of the Agents will be
deemed resident, domiciled or conducting business in
The Netherlands solely by the execution, delivery,
performance, or enforcement of this Agreement, the
Indenture, the Notes or the Guarantees;
(xv.) None of the holders of the Notes
outside The Netherlands or any of the Agents will be
subject to taxation in The Netherlands solely by the
execution, delivery, performance, or enforcement of
this Agreement, the Indenture or the Notes, provided
such holder is not a private individual and does not
have a substantial interest in the Company as
described in the Prospectus Supplement under
"Netherlands Taxation".
(xvi.) The information contained in the
Prospectus Supplement under "The Netherlands
Taxation" to the extent it covers matters of law or
legal conclusions has been reviewed by such counsel
and is correct.
(b) OFFICER'S CERTIFICATE. At the date hereof and at each Settlement
Date with respect to any Terms Agreement, there shall not have been, since the
respective dates as of which information is given in the Prospectus or since the
date of such Terms Agreement, any material adverse change in the financial
condition of the Guarantor and its subsidiaries considered as one enterprise or
in the results of operations or business prospects of the Guarantor and its
subsidiaries considered as one enterprise, not reflected in or contemplated by
the Prospectus, whether or not arising in the ordinary course of business; and
on the date hereof, the Agents shall have received a certificate of (y) the
President, any Executive Vice President, any Senior Vice President or any Vice
President and the principal financial or principal accounting officer of the
Guarantor and (z) the principal executive, principal financial or principal
accounting officer of the Company each to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties of the
Company and the Guarantor, as the case may be, contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company and the Guarantor, as the
case may be, have performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the date of
such certificate, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the SEC. For purposes of this Section 5(b) only,
the term "Prospectus" shall mean the Prospectus in the form first provided by
the Company or the Guarantor to the Agents for delivery with confirmations of
sales of Notes to or through such Agents.
49
(c) GUARANTOR COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from Deloitte & Touche LLP, dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect that:
(i) they are independent public accountants with
respect to the Guarantor and its subsidiaries within the meaning of the
1933 Act and the 1933 Act Regulations;
(ii)in their opinion, the consolidated financial
statements and supporting schedule(s) of the Guarantor and its
subsidiaries examined by them and included or incorporated by reference
in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations with respect to registration statements on
Form S-3 and the 1934 Act and the 1934 Act Regulations;
(iii) they have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Guarantor and its indicated
subsidiaries, a reading of the minute books of the Guarantor and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Guarantor and such subsidiaries
responsible for financial and accounting matters with respect to the
unaudited consolidated financial statements included in the
Registration Statement and Prospectus and the latest available interim
unaudited financial statements of the Guarantor and its subsidiaries,
and such other inquiries and procedures as may be specified in such
letter, and on the basis of such inquiries and procedures nothing came
to their attention that caused them to believe that: (A) the unaudited
consolidated financial statements of the Guarantor and its subsidiaries
included in the Registration Statement and Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally accepted accounting
principles in the United States applied on a basis substantially
consistent with that of the audited financial statements included
therein, or (B) at a specified date not more than five days prior to
the date of such letter, there was any change in the consolidated
capital stock or any increase in consolidated long-term debt of the
Guarantor and its subsidiaries or any decrease in the consolidated net
assets of the Guarantor and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet of
the Guarantor and its subsidiaries included in the Registration
Statement and Prospectus or, during the period from the date of such
balance sheet to a specified date not more than five days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues or
net income of the Guarantor and its subsidiaries, except in each such
case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as
shall have been agreed to by the Agents and the Guarantor; and
(iv)in addition to the examination referred to in
their report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
50
percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Guarantor and
its subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents shall have
been furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company and the Guarantor in connection with the
issuance and sale of Notes as herein contemplated shall be satisfactory in form
and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the applicable Agent, any applicable Terms Agreement) may be
terminated by any Agent as to itself, and any Terms Agreement may be terminated
by the Agent party thereto, by notice to the Company and the Guarantor at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth under "Parties" of Section 20 hereof shall remain in
effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by the
applicable Agent in the performance of its obligations hereunder, the Company or
the Guarantor will reimburse such Agent on an equitable basis for its loss of
the use of the funds for the period such funds were credited to the Company's
account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY AND THE GUARANTOR.
Each of the Guarantor and the Company, jointly and severally, covenant
and agree with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes, and each delivery of Notes to
an Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the
51
Company and the Guarantor contained in this Agreement and, to the extent
therein provided, in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or sale,
as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser
or his agent, or to the Agents, of the Note or Notes relating to such
acceptance or sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and
supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (1) the
Registration Statement or the Prospectus shall be amended or supplemented or
there is filed with the SEC any document incorporated by reference into the
Prospectus (other than (i) any amendment, supplement or document that is not
required to be made available by the Guarantor to any Agent pursuant to Section
4(b), (ii) any Current Report on Form 8-K filed solely for the purpose of
incorporating an exhibit by reference into another document, and (iii) any
Quarterly Report on Form 10-Q relating exclusively to a presentation of periodic
financial information (including management's discussion and analysis), a true
and accurate summary of which has been previously filed in a Current Report on
Form 8-K, if a certificate described below was delivered in connection with the
filing on such Form 8-K)), or (2) (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant to a Terms Agreement
then the Company and the Guarantor shall furnish or cause to be furnished to the
Agents forthwith a certificate dated the date of effectiveness of such
amendment, the date of filing with the SEC of such supplement or document, or
the date of such sale, as the case may be, in form and substance satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which were last furnished to the Agents are
true and correct at the time of such amendment, supplement, filing or sale, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate; PROVIDED, HOWEVER, that in the event that the sale of Notes whose
principal, premium, if any, and/or interest payments are determined by reference
to any index, formula or other method ("Indexed Notes") shall be authorized by
the Company and the Guarantor, such certificate shall also include as an exhibit
thereto a true and correct specimen of the form of Indexed Notes being issued
and shall cover such other matters as the Agents may reasonably request.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (1) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than (i) by an amendment or supplement relating solely to the interest rates,
interest payment dates or maturity dates of the Notes or similar information,
(ii) solely for the inclusion of additional financial information (including any
management's discussion and analysis), (iii) by an amendment made by the filing
of a Quarterly Report on Form 10-Q and any Current Report on Form 8-K (except in
the circumstances hereinafter described) and (iv) by an amendment or supplement
which is not required to be made available by the Company or the Guarantor to
any Agent pursuant to Section 4(b)) or (2) there is filed with the SEC the
Company's Annual Report on Form 10-K and such Annual Report is incorporated by
reference into the Prospectus or (3) (if required pursuant to the
52
terms of a Terms Agreement) the Company sells Notes to an Agent pursuant to a
Terms Agreement, the Company and the Guarantor shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents the written
opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Guarantor, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ /
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company, and either the General Counsel for
the Guarantor or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate General Counsel for the
Guarantor, or other counsel satisfactory to the Agents, dated the date of
effectiveness of such amendment, the date of filing with the SEC of such
supplement or document, or the date of such sale, as the case may be, in form
and substance satisfactory to the Agents, of the same tenor as the opinions
referred to in Section 5(a)(1), Section 5(a)(5), and Section 5(a)(2)
respectively, hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinions or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall each furnish the Agents with a
letter to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance);
PROVIDED, HOWEVER, that in the event that the sale of Indexed Notes shall be
authorized by the Company and the Guarantor, Shearman & Sterling, counsel for
the Guarantor, and Brown & Wood LLP, counsel for the Agents, or other counsel
satisfactory to the Company or the Guarantor and the Agents, shall deliver
their written opinions, dated the date of such sale, confirming the exclusion
or exemption of such Indexed Notes from the Commodity Exchange Act and
covering such other matters as the Company, the Guarantor and/or the Agents
may reasonably request. If one or more of the Agents reasonably determine
that the information included in a filing by the Guarantor in a Quarterly
Report filed on Form 10-Q or a Current Report filed on Form 8-K is of such
importance that a legal opinion should be delivered to the Agents in
conjunction therewith, such Agent or Agents shall notify the Company and the
Guarantor, promptly upon such determination. The Guarantor will thereupon
deliver to the Agents an opinion of the General Counsel for the Guarantor as
to matters set forth in Section 5(a)(2) and such portions of Section 5(a)(1)
as the Agents may reasonably designate and to the further effect of the
opinions delivered pursuant to Section 5(a)(4), modified, as necessary, to
relate to the Registration Statement and Prospectus as amended or
supplemented to the time of delivery of such opinion.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (1) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or (2) there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information or (3) (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company and the Guarantor shall cause Deloitte & Touche LLP, or their
successors, forthwith to furnish the Agents a letter, dated the date of
effectiveness of such amendment, supplement or document with the SEC, or the
date of such sale, as the case may be, in form satisfactory to the Agents, of
the same tenor as the portions of the letter referred to in clauses (i) and (ii)
of Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses (iii)
and (iv) of said Section 5(c) with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Guarantor and the Company; PROVIDED, HOWEVER, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include
53
financial information as of and for a fiscal quarter, Deloitte & Touche LLP,
or their successors, may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any
other information included therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable judgment of the Agents,
such letter should cover such other information. For purposes of this Section
7(d), the filing of a Current Report on Form 8-K for the exclusive purpose of
presenting interim periodic financial information pursuant to Section 4(e)
will not, in and of itself, give rise to an obligation to deliver a letter
from Deloitte & Touche LLP or their successors pursuant to this Section 7(d).
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company and the Guarantor agree,
jointly and severally, to indemnify and hold harmless the Agents and each
person, if any, who controls an Agent within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, or any 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 a
preliminary prospectus or the Prospectus or the omission or alleged
omission therefrom 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 Company or the
Guarantor by or on behalf of any Agent expressly for use in the
Registration Statement or any such preliminary prospectus or the
Prospectus, or was made in reliance upon the Statements of Eligibility
under the 1939 Act on Form T-1 of each 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 Company and the
Guarantor; and
(iii) against any and all expense whatsoever
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 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.
This indemnity agreement is subject to the condition that, insofar as
it relates to any preliminary prospectus, it shall not inure to the benefit of
any Agent from whom the person asserting any loss, liability, claim or damage
purchased the Notes which are the subject thereof
54
(or to the benefit of any person who controls such Agent) if such Agent
failed to send or give a copy of the Prospectus (excluding documents
incorporated by reference) to such person prior to or together with the
written confirmation of the sale of such Notes to such person. In no case
shall the Company or the Guarantor be liable under this indemnity agreement
with respect to any claim made against any Agent or any such controlling
person unless the Company and the Guarantor 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 Company or the Guarantor shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. Each of the Company and the Guarantor 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 the Company or the Guarantor
elects to assume the defense, such defense shall be conducted by counsel
chosen by it and satisfactory to the Agent or Agents or controlling person or
persons, defendant or defendants in any suit so brought. In the event that
the Company or the Guarantor elects to assume the defense of any such suit
and retains such counsel, the Agent or Agents 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 of any such action (including impleaded parties) include
both the Company or the Guarantor on the one hand, and one or more Agents on
the other and any such Agent shall have been advised by counsel chosen by it
and satisfactory to the Company or the Guarantor that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Company or the Guarantor, the Company and the
Guarantor shall not have the right to assume the defense of such action on
behalf of such Agent and will reimburse such Agent and any person controlling
such Agent as aforesaid for the reasonable fees and expenses of any counsel
retained by them, it being understood that the Company and the Guarantor
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 for all such Agents and
controlling persons, which firm shall be designated in writing by the Agents.
The Company and the Guarantor agree to notify the Agents within a reasonable
time of the assertion of any claim against it, any of its officers or
directors or any person, if any, who controls the Company or the Guarantor
within the meaning of Section 15 of the 1933 Act, in connection with the sale
of the Notes.
(b) Each Agent severally agrees that it will indemnify and hold
harmless the Company and the Guarantor and each of their respective officers who
signs the Registration Statement and each of their respective directors and each
person, if any, who controls the Company or the Guarantor within the meaning of
Section 15 of the 1933 Act to the same extent as the foregoing indemnity from
the Company and the Guarantor, but free of the condition set forth in the first
sentence of the second paragraph of Section 8(a) and only with respect to
statements or omissions made in a preliminary prospectus, the Prospectus or the
Registration Statement in reliance upon and in conformity with written
information furnished to the Company, the Guarantor by or on behalf of such
Agent expressly for use in the Registration Statement or in any such preliminary
prospectus or the Prospectus. In case any action shall be brought against the
Company, the Guarantor or any person so indemnified based on the Registration
Statement or such preliminary prospectus or the Prospectus and in respect of
which indemnity may be sought against any Agent, such Agent shall have the
rights and duties given to the Company and the
55
Guarantor. In addition, the Company, the Guarantor and each person so
indemnified shall have the rights and duties given to the Agents, by the
provisions of subsection (a) of this Section.
SECTION 9. CONTRIBUTION.
If the indemnification provisions provided in Section 8 above should
under applicable law be unenforceable 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 Company and the Guarantor on
the one hand and each of the Agents on the other from the offering of the Notes
which are the subject of the action and also the relative fault of the Company
and the Guarantor on the one hand and each of such Agents on the other 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 Company and the Guarantor on the one hand and each of the
applicable Agents on the other shall be deemed to be in the same proportion as
(A) in the case of Notes to be resold on a fixed public offering price basis,
the total net proceeds from the offering (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by
each of such Agents, in each case as set forth in the Prospectus, bear to the
aggregate public offering price of the Notes which are the subject of the action
or (B) in the case of Notes to be resold on a varying price basis, the total net
proceeds from the offering (before deducting expenses) received by the Company
and the total net proceeds received by each of such Agents from the distribution
of such Notes in excess of the purchase price paid by such Agents to the Company
bear to the public offering price paid to such Agents for such 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 8 above
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 Company and the Guarantor
on the one hand or an Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission of the Company and the Guarantor and such Agents. With
respect to any Agent, such relative fault shall also be determined by reference
to the extent (if any) to which such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) with respect to any preliminary
prospectus supplement result from the fact that such Agent sold Notes to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) if the Company and the Guarantor has previously
furnished copies thereof to such Agent. The Company, the Guarantor and the
Agents agree that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by per capita allocation (even if the Agents 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 9. 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 9 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 9, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at
56
which the Notes sold by the Company as a result of a solicitation made by
such Agent or purchased by such Agent pursuant to a Terms Agreement and
distributed to the public were offered to the public exceeds the amount of
any damages which such Agent 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 of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Each Agent's obligation in
this Section 9 to contribute is several in proportion to the amount of gross
proceeds received by the Company from the sale of the Notes which are the
subject of the action as a result of a solicitation made by such Agent or
purchased by such Agent pursuant to a Terms Agreement and not joint.
The obligations of the Company and the Guarantor under this Section 9
shall be in addition to any liability which the Company and the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Agent within the meaning of the 1933 Act; and
the obligations of the Agents under this Section 9 shall be in addition to any
liability which the respective Agents may otherwise have and shall extend, upon
the same terms and conditions, to each officer who signs the Registration
Statement, to each director of the Company and the Guarantor and to each person,
if any, who controls the Company or the Guarantor within the meaning of the 1933
Act.
SECTION 10. PAYMENT OF EXPENSES.
The Company or the Guarantor will pay all expenses incident to the
performance of their obligations under this Agreement, including:
(i) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(ii)The preparation, filing and reproduction of this
Agreement;
(iii) The preparation, printing, issuance and
delivery of the Notes, including any fees and expenses relating to
the use of Notes issued in book-entry form;
(iv)The fees and disbursements of each of the
Company's and the Guarantor's accountants and counsel, of the
Trustees and their respective counsel, and of any calculation
agent or exchange rate agent;
(v) The reasonable fees and disbursements of counsel
to the Agents incurred from time to time in connection with the
transactions contemplated hereby;
(vi)The qualification of the Notes under state
securities laws or any other jurisdictions in accordance with the
provisions of Section 4(h) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey;
(vii) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the
57
Prospectus and any amendments or supplements thereto, and the
delivery by the Agents of the Prospectus and any amendments or
supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(viii) The preparation, printing and delivery to the
Agents of copies of the Indenture and all supplements and
amendments thereto;
(ix)Any fees charged by rating agencies for the
rating of the Notes;
(x) The fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc.; and
(xi)Any advertising and other out-of-pocket expenses
of the Agents incurred with the express consent of the Guarantor.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company and the Guarantor
submitted pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of an Agent or
any controlling person of an Agent, or by or on behalf of the Company and the
Guarantor, and shall survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any Terms
Agreement) may be terminated for any reason at any time by either the Company or
the Guarantor, as to any Agent, or by an Agent, as to itself, upon the giving of
30 days' written notice of such termination to the other parties hereto.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent party to a Terms
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company or the Guarantor, at any time prior to the Settlement Date relating
thereto (i) if there has been, since the date of such Terms Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition of the Guarantor and its
subsidiaries considered as one enterprise, or in the results of operations or
business prospects of the Guarantor and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there shall have occurred any outbreak or escalation of hostilities or other
calamity or crisis or other event the effect of which on the financial markets
of the United States, The Netherlands or in the country or countries of origin
of any foreign currency or currencies in which the Notes are denominated,
indexed or payable is such as to make it, in the judgment of such Agent,
impracticable to market the Notes or enforce contracts for the sale of the
Notes, or (iii) if trading in any securities of the Company or the Guarantor has
been suspended by the SEC or a national securities exchange (including the New
York Stock Exchange), or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have 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
SEC or any other governmental authority, or if a banking
58
moratorium shall have been declared by either Federal or New York authorities
or if a banking moratorium shall have been declared by the relevant
authorities in The Netherlands or in the country or countries of origin of
any foreign currency or currencies in which the Notes are denominated,
indexed or payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Guarantor
as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced
that it has placed any debt securities of the Guarantor on what is commonly
termed a "watch list" for possible downgrading, or (v) if there shall have
come to such Agent's attention any facts that would cause it to believe that
the Prospectus, at the time it was required to be delivered to a purchaser of
Notes, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances existing at the time of such delivery, not misleading. For
the purposes of this Section 12(b) only, the term "Prospectus" shall mean the
Prospectus in the form first provided by the Company or the Guarantor to such
Agent for delivery with confirmations of sales of Notes purchased by such
Agent as principal.
(c) GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) each Agent shall
be entitled to any commission with respect to Notes sold by the Company as a
result of a solicitation made by such Agent and earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination (a)
an Agent shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(g) hereof, the provisions of Section 5 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 20 hereof shall remain in effect.
SECTION 13. DEFAULT BY ONE OR MORE OF THE AGENTS. If one of the Agents
shall fail at a date fixed for settlement to purchase Notes which it is
obligated to purchase under this Agreement (the "Defaulted Notes"), the
non-defaulting Agent shall have the right, within 24 hours thereafter, to make
arrangements for itself, or any other agents, to purchase all, but not less than
all, of the Defaulted Notes in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the non-defaulting Agent shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be purchased on such
date, the non-defaulting Agent shall be obligated to purchase the full amount
thereof, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10% of
the aggregate principal amount of Notes to be purchased on such date, the trade
shall terminate without liability on the part of any non-defaulting Agent.
No action taken pursuant to this Section 13 shall relieve any
defaulting Agent from liability in respect of its default.
59
In the event of any such default which does not result in a termination
of this Agreement, either the (i) non-defaulting Agent or (ii) the Company shall
have the right to postpone the date fixed for settlement for such Notes for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
SECTION 14. CONSENT TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS.
Each of the parties irrevocably consents and agrees for the benefit of
the holders of the Notes and the Agents that any legal action, suit or
proceeding against them with respect to their obligations, liabilities or any
other matter arising out of or in connection with this Agreement, the Indenture,
the Guarantees or the Notes may be brought in the courts of the State of New
York or the courts of the United States of America located in the County of New
York and, until all amounts due and to become due in respect of all the Notes
have been paid, or until any such legal action, suit or proceeding commenced
prior to such payment has been concluded, hereby irrevocably consents and
irrevocably submits to the non-exclusive jurisdiction of each such court in
person and, generally and unconditionally with respect to any action, suit or
proceeding for themselves and in respect of their properties, assets and
revenues.
The Company hereby irrevocably designates, appoints and empowers CT
Corporation System with offices currently at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and its properties, assets and revenues,
service of any and all legal process, summons, notices and documents that may be
served in any action, suit or proceeding brought against them in any such United
States or state court located in the County of New York with respect to its
obligations, liabilities or any other matter arising out of or in connection
with this Agreement or any additional agreement and that may be made on such
designee, appointee and agent in accordance with legal procedures prescribed for
such courts. If for any reason such designee, appointee and agent hereunder
shall cease to be available to act as such, the Company agrees to designate a
new designee, appointee and agent in the County of New York on the terms and for
the purposes of this Section 14 satisfactory to the Agents. The Company further
hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any such action, suit or proceeding
against them by serving a copy thereof upon the relevant agent for service of
process referred to in this Section 14 (whether or not the appointment of such
agent shall for any reason prove to be ineffective or such agent shall accept or
acknowledge such service) or by mailing copies thereof by registered or
certified air mail, postage prepaid, to the Company, at its address specified in
or designated pursuant to this Agreement. The Company agrees that the failure of
any such designee, appointee and agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon. Nothing herein
shall in any way be deemed to limit the ability of the holders of the Notes or
the Agents to service any such legal process, summons, notices and documents in
any other manner permitted by applicable law or to obtain jurisdiction over the
Company or bring actions, suits or proceedings against it in such other
jurisdictions, and in such manner, as may be permitted by applicable law. The
Company hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Agreement, the Indenture, the Guarantees or
60
the Notes brought in the United States federal courts located in the County
of New York or the courts of the State of New York located in the County of
New York and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
The provisions of this Section 14 shall survive any termination of this
Agreement, in whole or in part.
SECTION 15. WAIVER OF IMMUNITIES.
To the extent that the Company or any of its respective properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to them, any right of immunity, on the grounds of sovereignty, from
any legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, or from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to their obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement or any additional agreement, the Company hereby irrevocably and
unconditionally, to the extent permitted by applicable law, waives and agrees
not to plead or claim any such immunity and consents to such relief and
enforcement.
SECTION 16. FOREIGN TAXES.
All payments by the Company or the Guarantor to each of the Agents
hereunder shall be made free and clear of, and without deduction or withholding
for or on account of, any and all present and future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereinafter imposed, levied, collected, withheld or assessed by The
Netherlands or any other jurisdiction in which the Company has an office from
which payment is made or deemed to be made, excluding (i) any such tax imposed
by reason of such Agent having some connection with any such jurisdiction other
than its participation as Agent hereunder, and (ii) any income or franchise tax
on the overall net income of such Agent imposed by the United States or by the
State of New York or any political subdivision of the United States or by the
State of New York (all such non-excluded taxes, "Foreign Taxes"). If the Company
or the Guarantor is prevented by operation of law or otherwise from paying,
causing to be paid or remitting that portion of amounts payable hereunder
represented by Foreign Taxes withheld or deducted, then amounts payable under
this Agreement shall, to the extent permitted by law, be increased to such
amount as is necessary to yield and remit to each Agent an amount which, after
deduction of all Foreign Taxes (including all Foreign Taxes payable on such
increased payments) equals the amount that would have been payable if no Foreign
Taxes applied.
SECTION 17. JUDGMENT CURRENCY.
Each of the Company and the Guarantor agrees to indemnify the Agents
against any loss incurred by such Agents as a result of any judgment or order
being given or made for any amount due hereunder and such judgment or order
being expressed and paid in a currency (the
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"Judgment Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange at which the Agents are able
to purchase United States dollars with the amount of the Judgment Currency
actually received by the Agents. The foregoing indemnity shall constitute
separate and independent obligations of the Company and the Guarantor and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
SECTION 18. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by
registered mail or by telex, facsimile or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Guarantor:
Deere & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
▇▇▇▇ Deere B.V.
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: 011-31-77-397-9109
Attention: Managing Director
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If to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated:
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Product Management
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Credit Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 18.
SECTION 19. GOVERNING LAW.
This agreement and all the rights and obligations of the parties 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 such state. Any suit,
action or proceeding brought by the Company or the Guarantor against an Agent in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the borough of
Manhattan, the City of New York.
SECTION 20. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Guarantor and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and 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 Notes shall be
deemed to be a successor by reason merely of such purchase.
********
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Guarantor a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents on the one hand and the Company and the Guarantor
on the other in accordance with its terms.
Very truly yours,
▇▇▇▇ DEERE B.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Principal Executive Officer
DEERE & COMPANY
By: /s / ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
----------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
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EXHIBIT A
As compensation for the services of an Agent hereunder, the Company or
the Guarantor shall pay such Agent (on a discount basis or by other means agreed
to by the Company and such Agent) a commission for the sale by such Agent as
agent of a Note equal to the price to the public of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months but less than 1 year............................................. .125%
From 1 year but less than 18 months............................................ .150%
From 18 months but less than 2 years........................................... .200%
From 2 years but less than 3 years............................................. .250%
From 3 years but less than 4 years............................................. .350%
From 4 years but less than 5 years............................................. .450%
From 5 years but less than 6 years............................................. .500%
From 6 years but less than 7 years............................................. .550%
From 7 years but less than 10 years............................................ .600%
From 10 years to less than 15 years............................................ .625%
From 15 years to less than 20 years............................................ .650%
From 20 years to 30 years...................................................... .675%
Unless otherwise specified in the applicable Terms Agreement, the
discount payable to an Agent shall be determined on the basis of the commission
schedule set forth above.
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EXHIBIT B
The following terms, if applicable, shall be agreed to by an Agent, the
Company and the Guarantor pursuant to each Terms Agreement:
Principal Amount: $_______ (or principal amount of foreign
currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread, Spread Multiplier or
Other Formula, if any:
Index Maturity:
Interest Reset Date(s):
Interest Payment Date(s):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
Redemption provisions, if any:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Repayment provisions if any:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollars):
Currency of Payment:
Additional Terms:
Agent Commission:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement.
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