DEERE & COMPANY
Medium-Term Notes, Series D
Due from 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
March 30, 2001
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
North Tower
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Deere & Company, a Delaware corporation (the "Company"), confirms its
agreement with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx,
Xxxxx & Co. (each, an "Agent", and collectively, the "Agents"), with respect to
the issue and sale by the Company of its Medium-Term Notes, Series D, Due from 9
Months to 30 Years from Date of Issue described herein (the "Notes"). The Notes
may be issued as senior indebtedness (the "Senior Notes") or as subordinated
indebtedness (the "Subordinated Notes") of the Company. The Senior Notes are to
be issued as a series under an indenture, dated as of October 1, 1998 (the
"Senior Indenture"), between the Company and The Chase Manhattan Bank (successor
by merger to The Chase Manhattan Bank (National Association)), trustee (the
"Senior Trustee") and the Subordinated Notes are to be issued as a series under
an indenture, dated as of March 15, 1999 (the "Subordinated Indenture", and
together with the Senior Indenture, the "Indentures"), between the Company and
The Bank of New York, trustee (the "Subordinated Trustee", and together with the
Senior Trustee, the "Trustees"). As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $950,000,000 aggregate principal
amount (or its equivalent, based upon the applicable exchange rate at the time
of the applicable trade date, in one or more foreign currencies or currency
units or composite 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 Xxxx Deere
B.V., a corporation duly organized and existing under the laws of The
Netherlands ("JDBV"), the Company and the Agents with respect to the issue and
sale by JDBV of its Medium-Term Notes Due from 9 Months to 30 Years from Date of
Issue Unconditionally Guaranteed by Deere & Company. 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
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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.
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 has filed with the Securities and Exchange Commission (the
"SEC") registration statements on Form S-3 (No. 333-47264) and post-effective
amendment No. 1 to the registration statement No. 333-54149 for the registration
of debt securities, including the Notes, warrants to purchase such debt
securities, preferred stock, depositary shares, common stock, warrants to
purchase common stock, currency, indexed and other warrants of the Company as
well as guaranteed debt securities of Xxxx Deere B.V., 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) and post-effective amendment No. 1 to the registration statement No.
333-54149 have been declared effective by the SEC and each 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 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 for use in connection with the offering
of the Notes which is not required to be filed by the Company 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
hereby (i) appoints the Agents as agents for the purpose of soliciting purchases
of Notes from the Company by others and (ii) agrees 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 may, without the
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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 so appoints one or more other persons, the
Company and such person or persons shall execute a 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 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 contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants 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:
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(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 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 Company
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 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 applicable
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 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 and its subsidiaries considered
as one enterprise, or in the results of operations or business
prospects of the Company 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 its subsidiaries other than (1) transactions in the ordinary
course of business including borrowings for the acquisition of
receivables and other operations or
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(2) transactions which are not material in relation to the Company
and its subsidiaries considered as one enterprise.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware 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 each
Indenture 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 or any of its subsidiaries, pursuant to any
indenture, loan agreement, contract or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any such subsidiary may be bound or to which any of the
property or assets of the Company 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 Company or any of its subsidiaries or, to the
best of its knowledge, any order, rule or regulation applicable to the
Company 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 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
applicable 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 applicable Indenture.
(viii) The statements in the Prospectus under the captions
"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.
(ix) 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.
(x) The Notes, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the applicable
Indenture, will be excluded or exempted from the provisions of the
Commodity Exchange Act.
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(xi) The Medium-Term Note Program under which the Notes are
issued (the "Program"), as well as the Notes, are rated A2 by Xxxxx'x
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 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 Company 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, to use its reasonable best
efforts to solicit offers to purchase Notes upon the terms and conditions set
forth herein and in the Prospectus.
The Company 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, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees 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, 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 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 and the Company) 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
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Company 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 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 a price that includes
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.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company 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 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, the Company 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
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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
Company 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 Company 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
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 debt securities other
than Notes or (iv) any Current Report on Form 8-K filed solely for the
purpose of incorporating an exhibit by reference into a registration
statement except that the Company 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 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 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 or in the reasonable opinion of
counsel for the Agents or counsel for the Company, 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 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 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 will promptly prepare and file with the
SEC such amendment or supplement, whether by filing documents pursuant to the
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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 the Company, 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 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 the Company for the preceding fiscal year, the Company shall
cause the Registration Statement and 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 Company 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
Company'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 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 the Company shall not 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 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 will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
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(i) 1934 ACT FILINGS. The Company, 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 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. The Company shall not 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 and (ii) neither Agent shall hold any Notes as
principal purchased pursuant to a Terms Agreement, to the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with an Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents as agents of the Company 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 herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its 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 COMPANY COUNSEL. The opinion of Xxxxxxxx & Xxxxxxxx,
counsel to the Company, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) Each Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the applicable Trustee, constitutes a valid and
binding obligation of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
14
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.
(iv) The Notes have been duly authorized by the Company and, when
duly executed by the Company and completed and authenticated by the
applicable Trustee in accordance with the applicable Indenture and
delivered against payment pursuant to this Agreement, the Notes, in
the forms certified by an authorized officer of the Company, will be
valid and binding obligations of the Company entitled to the benefits
of such 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 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.
(vi) Each Indenture has been duly qualified under the 1939 Act.
(vii) 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 Statement has been
issued under 1933 Act or proceedings therefor initiated or threatened
by the SEC.
(viii) 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 1933 Act
Regulations.
(ix) 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
15
in all material respects to the requirements of the 1934 Act and the
rules and regulations of the SEC thereunder.
(x) 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 Company.
(xi) 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.
(2) OPINION OF GENERAL COUNSEL TO THE COMPANY. The opinion of
the General Counsel of the Company or Associate General Counsel of the
Company, to the effect that (i) the Company 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 each
Indenture, 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 Company or any agreement,
indenture or other instrument known to such counsel of which the
Company or any of its subsidiaries 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 or any of its
subsidiaries.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Xxxxx & Wood
LLP, counsel to the Agents, covering the matters referred to in
subsection (a)(1) of this Section under the subheadings (i) to (viii),
inclusive.
(4) DISCLOSURE OPINION. In giving their opinions required by
subsections (a)(1) and (a)(3) of this Section, Shearman & 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)(v) and Section
5(a)(1)(xi) (in the case of Xxxxxxxx & Xxxxxxxx only). Such counsel
has, however, generally reviewed and discussed such statements with
certain officers and employees of the Company and with its 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 Company (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
16
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.
(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 Company and its subsidiaries considered as one
enterprise or in the results of operations or business prospects of the
Company 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 the President, any Executive Vice President, any Senior Vice
President or any Vice President and the principal financial or principal
accounting officer of the Company to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties of the
Company 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 has 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 to the Agents for
delivery with confirmations of sales of Notes to or through such Agents.
(c) 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 Company 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 Company 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 Company and its indicated
subsidiaries, a reading of the minute books of the Company 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 Company 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 Company and its subsidiaries, and such
other inquiries and procedures as may be specified in such
17
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 Company 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 Company and its subsidiaries or
any decrease in the consolidated net assets of the Company and its
subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company 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 Company 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 Company; 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,
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 Company 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 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 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,
18
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth under "Parties" of Section 16 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
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.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
it 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 Company 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 Company 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 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
19
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, 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 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 terms of a Terms Agreement) the
Company sells Notes to an Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to the Agents and to counsel to the
Agents the written opinions of Xxxxxxxx & Xxxxxxxx, counsel to the Company, and
the General Counsel for the Company, 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) 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, Shearman & Sterling,
counsel for the Company, and Xxxxx & Wood LLP, counsel for the Agents, or other
counsel satisfactory to the Company 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 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 Company 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 promptly upon such determination. The Company will thereupon deliver to
the Agents an opinion of the General Counsel for the Company 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
20
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 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
Company; PROVIDED, HOWEVER, that if the Registration Statement or the Prospectus
is amended or supplemented solely to include 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 agrees 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 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
21
Statements of Eligibility under the 1939 Act on Form T-1 of each
Trustee under the applicable 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
(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 (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 be liable under this indemnity
agreement with respect to any claim made against any Agent or any such
controlling person unless the Company 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 shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. The Company 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 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 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 and one or more Agents and any such Agent
shall have been advised by counsel chosen by it and satisfactory to the Company
that there may be one or more legal defenses available to it which are different
from or additional to those available to the Company, the Company 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 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 agrees to notify the Agents within a reasonable time of the
assertion of any claim against it, any
22
of its officers or directors or any person, if any, who controls the Company
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 each of its officers who signs the Registration
Statement and each of its directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, 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 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 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 Company 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 each of the Agents from the offering of the Notes which are the
subject of the action and also the relative fault of the Company and each of
such Agents 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 each of the applicable Agents
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 or an Agent and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission of the Company 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
23
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 has previously furnished copies thereof to such Agent. The Company
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 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 under this Section 9 shall be in
addition to any liability which the Company 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 to each person, if any, who controls the Company within the meaning
of the 1933 Act.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
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;
24
(iv) The fees and disbursements of the Company'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 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 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 each 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 Company.
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 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 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,
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, 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
25
adverse change in the financial condition of the Company and its subsidiaries
considered as one enterprise, or in the results of operations or business
prospects of the Company 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 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 has been suspended by the SEC or
a national securities 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 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 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 Company 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 Company 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 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 16 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
26
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.
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. 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, telecopier or telegram, and any such notice shall
be effective when received at the address specified below.
If to the Company:
Deere & Company
Xxx Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopier: (000) 000-0000
If to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product Management
27
Facsimile: 000 000-0000
If to Xxxxxxx, Xxxxx & Co.:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Department
Telecopier: (000) 000-0000
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 14.
SECTION 15. 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 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 16. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents 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 Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
DEERE & COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President & Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
/s/ Xxxxxxx, Xxxxx & CO.
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
29
A-1
EXHIBIT A
As compensation for the services of an Agent hereunder, the Company
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
Senior 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%
The above Schedule shall also apply to commissions paid in connection
with sales of Subordinated Notes unless otherwise agreed to by the Company and
all of the Agents.
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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B-1
EXHIBIT B
The following terms, if applicable, shall be agreed to by an Agent and
the Company 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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