EXHIBIT 1.3
XXXX DEERE B.V.
(a Netherlands corporation)
$______________ _______% Notes due ______________
UNCONDITIONALLY GUARANTEED BY DEERE & COMPANY
(a Delaware Corporation)
TERMS AGREEMENT
___Date__________
Xxxx Deere X.X.
Xxxxxxxxxxxxx 00, XX-0000
XX Xxxxx
Xxx Xxxxxxxxxxx
Deere & Company
Xxx Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Dear Sirs:
We, the Underwriters listed below (the "Underwriters"), understand
that Xxxx Deere B.V., a corporation duly organized and existing under the laws
of The Netherlands (the "Company"),proposes to issue and sell $____,000,000
aggregate principal amount of its _____% Notes due ____________ (the
"Underwritten Securities"). Payment of principal of, premium, if any, interest,
and additional amounts on the Underwritten Securities will be unconditionally
guaranteed by Deere & Company, a Delaware corporation, as guarantor (the
"Guarantor"), pursuant to the terms and conditions of the guarantee issued in
respect of the Underwritten Securities. Subject to the terms and conditions set
forth or incorporated by reference herein, the Underwriters offer to purchase,
severally and not jointly, the respective amounts of Underwritten Securities set
forth below opposite their respective names at the respective purchase prices
set forth below.
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Underwriter Principal Amount of
----------- Underwritten Securities
-----------------------
---------------------------....................................................... $__________
---------------------------....................................................... $__________
---------------------------. ..................................................... $__________
Total........................................................... $
==========
The Underwritten Securities shall have the following terms:
Title of Underwritten Securities:
Principal amount to be issued:
Current ratings:
Interest rate:
Interest Payment Dates:
Regular Record Dates
Maturity Date
Redemption provisions:
Sinking fund requirements:
Delayed Delivery Contracts:
Initial public offering price:
Purchase price:
Form:
Closing Date and Location:
All of the provisions contained in the document attached as Annex A
hereto entitled "Xxxx Deere B.V., Issuer, Deere & Company, Guarantor--Guaranteed
Debt Securities--Underwriting Agreement Basic Provisions" (the "Basic
Provisions") are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in the Basic
Provisions are used herein as therein defined.
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Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
By:
By: ________________________________
Name:
Title:
On behalf of themselves and the other
Underwriters named above
Accepted:
XXXX DEERE B.V.
By: ______________________________________________
Name:
Title:
DEERE & COMPANY
By: ______________________________________________
Name:
Title:
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April 3, 2001
ANNEX A
XXXX DEERE B.V., Issuer
(a Netherlands corporation)
DEERE & COMPANY, Guarantor
(a Delaware corporation)
Guaranteed Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
Xxxx Deere B.V., a corporation duly organized and existing under the
laws of The Netherlands(the "Company"), proposes to issue and sell from time to
time its debt securities in one or more series (the "Guaranteed Securities").
Payment of principal of, and premium, if any, and interest, if any, on the
Guaranteed Securities of each series will be unconditionally guaranteed by Deere
& Company, a Delaware corporation, as guarantor (the "Guarantor"), pursuant to
the terms and conditions of the guarantee issued in respect of such series of
Guaranteed Securities (the "Guarantee"). The Guaranteed Securities will be
issued under an indenture, dated as of March 30, 2001 (the "Indenture") among
the Company, the Guarantor and The Chase Manhattan Bank, as trustee (the
"Trustee"). Each series of Guaranteed Securities may vary, as applicable, as to
aggregate principal amount, maturity date, interest rate or formula and timing
of payments thereof, redemption provisions, conversion provisions and sinking
fund requirements, if any, and any other variable terms which the Indenture
contemplates.
This is to confirm the arrangements with respect to the purchase of
Guaranteed Securities from the Company by the Representative and the several
Underwriters listed in the applicable terms agreement entered into among the
Representatives, the Guarantor and the Company of which this Underwriting
Agreement Basic Provisions is Annex A thereto (the "Terms Agreement"). With
respect to any particular Terms Agreement, the Terms Agreement, together with
the provisions hereof incorporated therein by reference, is herein referred to
as the "Agreement". Terms defined in the Terms Agreement are used herein as
therein defined.
The Company and the Guarantor have filed jointly with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-47264) in respect of the Company's debt securities, including the
Guaranteed Securities, and the Guarantor's senior and/or subordinated debt
securities, warrants to purchase senior debt securities, equity securities and
guarantees of the Company's debt securities, including the Guarantees, and have
filed such amendments thereto as may have been required to the date of the Terms
Agreement. Such registration statement, as so amended, has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement, as so
amended, and the prospectus constituting a part thereof, including all documents
incorporated therein by reference, as from time to time amended or supplemented
to the date of the Terms Agreement pursuant to the Securities Exchange Act of
1934 (the "1934 Act"), the Securities Act of 1933 (the "1933 Act"), or
otherwise, are collectively referred to herein as the "Registration Statement"
and the "Prospectus", respectively; provided, however, that a supplement of the
Prospectus contemplated by Section 3(a) (a "Prospectus
70
Supplement") shall be deemed to be a supplement to such prospectus only with
respect to the offering of Guaranteed Securities to which it relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company and the
Guarantor, jointly and severally, represent and warrant to the Representative
and to each Underwriter named in a Terms Agreement as of the date thereof and as
of the Closing Time (as defined in Section 2 hereof) (each a "Representation
Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act, the rules and regulations thereunder
(the "Regulations") and the 1939 Act. The Registration Statement, at
the time the Registration Statement became effective and as of the
applicable Representation Date, did not, and will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective and as of the applicable Representation
Date, did not, and 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 or the Guarantor in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which shall
constitute the Statement of Eligibility under the 1939 Act (Form T-1)
of the Trustee under the Indenture.
(b) The financial statements and the supporting schedules
included in the Registration Statement and Prospectus present fairly
the financial position of the Guarantor and its subsidiaries on a
consolidated basis, as at the dates indicated, and their results of
operations for the periods specified, in conformity with generally
accepted accounting principles applied on a consistent basis during
the periods involved.
(c) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied and 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, at the time the Registration Statement became
effective and at the time any amendments thereto become effective or
hereafter during the period specified in Section 3(b), did not and
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 the light of the circumstances under which they are made,
not misleading.
(d) Since the respective dates as of which information is given
in the Prospectus, except as may otherwise be stated in or
contemplated by the Prospectus: (i) there has not been any material
adverse change in the financial condition of the Company or the
Guarantor and its subsidiaries considered as one enterprise, or in the
results of
71
operations or business prospects of the Company or the Guarantor and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business; and (ii) there have not been any
transactions entered into by the Company or the Guarantor or its
subsidiaries other than (x) transactions in the ordinary course of
business and (y) transactions which are not material in relation to
the Company or the Guarantor and its subsidiaries considered as one
enterprise.
(e) 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 Prospectus.
(f) The execution and delivery of the Agreement, the Indenture,
the Guaranteed Securities and the Guarantees endorsed upon the
Guaranteed Securities 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 the
Guarantor or any of its subsidiaries, pursuant to any indenture, loan
agreement, contract or other agreement or instrument to which the
Company, or the Guarantor or any of its subsidiaries is a party or by
which the Company or the Guarantor or any of its subsidiaries 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 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, or 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.
(g) The Guaranteed Securities have been duly authorized for
issuance and sale pursuant to the Agreement (or will have been so
authorized prior to each issuance of Guaranteed Securities) and, when
issued, authenticated and delivered pursuant to the provisions of the
Agreement and of the Indenture against payment of the consideration
therefor in accordance with the Agreement, the Guaranteed Securities
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. The Guaranteed Securities and the Indenture conform in all
material respects to all statements relating thereto contained in the
Prospectus.
(h) The Guarantees endorsed upon the Guaranteed Securities have
been duly authorized by the Guarantor and, when issued, authenticated
and delivered pursuant to the provisions of the Agreement and of the
Indenture against payment of the consideration therefor in accordance
with the Agreement, such Guarantees will be the valid and legally
binding obligations of the Guarantor enforceable in accordance with
72
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. The Guarantees
conform in all material respects to all statements relating thereto
contained in the Prospectus.
(i) Deloitte & Touche LLP are independent certified public
accountants as required by the 1933 Act and the Regulations.
(j) The Guarantor and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patent rights or licenses or
other rights to use patent rights, inventions, trademarks, service
marks, trade names and copyrights necessary to conduct the business
now operated by them, and neither the Guarantor nor any of its
subsidiaries has received nay notice of infringement of or conflict
with asserted rights of others with respect to any patent, patent
rights, inventions, trademarks, service marks, trade names or
copyrights which, singly or in aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the conduct of the business, operations, financial condition or
income of the Guarantor and its subsidiaries considered as one
enterprise.
(k) No labor disturbance by the employees of the Company, the
Guarantor or any of its subsidiaries exists or is imminent which might
be expected to materially adversely affect the conduct of the
business, operations, financial condition or income of the Guarantor
and its subsidiaries, considered as one enterprise.
(l) 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 (the "1940 Act").
(m) Except as described in the Prospectus, or as has already
been paid or authorized for payment, no stamp duty or similar tax or
duty is payable by the Underwriters or the holders of the Guaranteed
Securities 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 Guaranteed Securities
as contemplated by the Agreement and the Indenture or in connection
with the execution, delivery or performance of the Agreement, the
Indenture or the Guaranteed Securities.
(n) Except as otherwise disclosed in the Prospectus, the payment
of amounts by the Guarantor under the Guarantees or by the Company
under the Guaranteed Securities in respect of the principal thereof or
any premium or interest thereon to the Underwriters or to a holder of
Guaranteed Securities that is a United States Person (as defined in
the Prospectus), with no connection to The Netherlands except mere
ownership of the Guaranteed Securities, 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.
(o) To their best knowledge, the Company, the Guarantor and
their respective obligations under the Agreement, the Indenture, the
Guarantees and the Guaranteed
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Securities, are subject to civil and commercial law and to suit. 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 the Agreement, the Indenture, the Guarantees or the
Guaranteed Securities, 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 law and has consented to
such relief and enforcement as provided in the Indenture, the
Guarantees or the Guaranteed Securities.
(p) Except as described in the Prospectus and subject to the
qualifications set forth in the opinion referred to in Section 4(a)(4)
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 the
Agreement, the Indenture, the Guarantees or the Guaranteed Securities
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.
(q) The Company's and the Guarantor's senior unsecured debt
securities described in the Registration Statement 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.
Any certificate signed by any officer of the Company or the Guarantor
and delivered to the Representative or counsel for the Underwriters in
connection with an offering of Guaranteed Securities shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may be,
as to the matters covered thereby, to each Underwriter participating in such
offering.
SECTION 2. PURCHASE AND SALE. The obligations of the Underwriters to
purchase, the Company to sell, and the Guarantor to guarantee, the Guaranteed
Securities shall be evidenced by the Terms Agreement. The Terms Agreement
specifies the principal amount of the Guaranteed Securities, the names of the
Underwriters participating in the offering (subject to
74
substitution as provided in Section 10 hereof) and the principal amount of
Guaranteed Securities which each Underwriter severally has agreed to purchase,
the purchase price to be paid by the Underwriters for the Guaranteed Securities,
the initial public offering price, if any, of the Guaranteed Securities, any
delayed delivery arrangements and any terms of the Guaranteed Securities not
already specified in the Indenture (including, but not limited to, designations,
denominations, current ratings, interest rates or formulas and payment dates,
maturity dates, conversion provisions, redemption provisions and sinking fund
requirements).
The several commitments of the Underwriters to purchase Guaranteed
Securities pursuant to the Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Guaranteed
Securities to be purchased by the Underwriters shall be made at the office of
Xxxxx & Wood LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Representative, the Company and the
Guarantor, at 10:00 AM, New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10) following the date of
the Terms Agreement or such other time as shall be agreed upon by the
Representative, the Guarantor and the Company (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company by wire
transfer of immediately available funds payable to a bank account designated by
the Company against delivery to the Representative for the respective accounts
of the Underwriters of the Guaranteed Securities to be purchased by them. The
Guaranteed Securities shall be in such denominations and registered in such
names as the Representative may request in writing at least two business days
prior to the applicable Closing Time. The Guaranteed Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representative on or before the first business day prior to Closing Time.
If authorized by the Terms Agreement, the Underwriters named therein
may solicit offers to purchase Guaranteed Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts") substantially in
the form of Exhibit A hereto with such changes therein as the Company may
approve. As compensation for arranging Delayed Delivery Contracts, the Company
will pay to the Representative at Closing Time, for the accounts of the
Underwriters, a fee equal to that percentage of the principal amount of
Guaranteed Securities for which Delayed Delivery Contracts are made at Closing
Time as is specified in the Terms Agreement. Any Delayed Delivery Contracts are
to be with institutional investors of the types set forth in the Prospectus. At
Closing Time the Company will enter into Delayed Delivery Contracts (for not
less than the minimum principal amount of Guaranteed Securities per Delayed
Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate principal amount of Guaranteed
Securities in excess of that specified in the Terms Agreement. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
The Representative shall submit to the Company at least three business
days prior to Closing Time, the names of any institutional investors with which
it is proposed that the Company will enter into Delayed Delivery Contracts and
the principal amount of Guaranteed
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Securities to be purchased by each of them, and the Company will advise the
Representative, at least two business days prior to Closing Time, of the names
of the institutions with which the making of Delayed Delivery Contracts is
approved by the Company and the principal amount of Guaranteed Securities to be
covered by each such Delayed Delivery Contract.
The principal amount of Guaranteed Securities agreed to be purchased
by the respective Underwriters pursuant to the Terms Agreement shall be reduced
by the principal amount of Guaranteed Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
the Representative to the Company; provided, however, that the total principal
amount of Guaranteed Securities to be purchased by all Underwriters shall be the
total amount of Guaranteed Securities covered by the applicable Terms Agreement,
less the principal amount of Guaranteed Securities covered by Delayed Delivery
Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE GUARANTOR. The Company and
the Guarantor, jointly and severally, covenant with the Representative, and with
each Underwriter participating in the offering of Guaranteed Securities, as
follows:
(a) Immediately following the execution of the Terms Agreement,
the Company and the Guarantor will prepare a Prospectus Supplement
setting forth the principal amount of Guaranteed Securities covered
thereby and their terms not otherwise specified in the Indenture
pursuant to which the Guaranteed Securities are being issued, the
names of the Underwriters participating in the offering and the
principal amount of Guaranteed Securities which each severally has
agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Guaranteed Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as the Representative, the Company and the Guarantor deem
appropriate in connection with the offering of the Guaranteed
Securities. The Company and the Guarantor will promptly transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such
Prospectus Supplement as the Representative shall reasonably request.
(b) If, at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Guaranteed
Securities, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters,
counsel for the Company 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 circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion
of any such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations, the Company and the
Guarantor will promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the
1934 Act or otherwise, as
76
may be necessary to correct such untrue statement or omission or to
make the Registration Statement and Prospectus comply with such
requirements.
(c) With respect to each sale of Guaranteed Securities, 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, earning statements (in form complying with the
provisions of Rule 158 under the 0000 Xxx) covering 12-month periods
beginning, in each case, not later than the first day of the
Guarantor's fiscal quarter next following the "effective date" (as
defined in Rule 158) of the Registration Statement relating to
Guaranteed Securities.
(d) At any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Guaranteed Securities,
the Company and the Guarantor will give the Representative notice of
its intention to file any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether pursuant to the
1934 Act, the 1933 Act or otherwise, will furnish the Representative
with copies of any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing, and will
not file any such amendment or supplement or other documents in a form
to which the Representative or counsel for the Underwriters shall
reasonably object.
(e) At any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Guaranteed Securities,
the Company and the Guarantor will notify the Representative
immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
mailing or the delivery to the Commission for filing of any supplement
to the Prospectus or any document to be filed pursuant to the 1934
Act, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or any
supplement to the Prospectus, (iv) any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (v)
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. 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.
(f) During the period specified in subsection (b) above, the
Company and the Guarantor will deliver to the Representative as many
signed and 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 the Representative may
reasonably request.
(g) The Company and the Guarantor will endeavor in good faith to
qualify the Guaranteed Securities for offering and sale under the
applicable securities laws of such jurisdictions as the Representative
may designate; provided, however, that neither the Company nor the
Guarantor shall be obligated to file any general consent to service or
to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it
77
is not so qualified. The Company and the Guarantor will maintain such
qualifications in effect for as long as may be required for the
distribution of the Guaranteed Securities. The Company and the
Guarantor will file such statements and reports as may be required by
the laws of each jurisdiction in which the Guaranteed Securities have
been qualified as above provided.
(h) The Company and the Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act in
connection with the sale of Guaranteed Securities, will file promptly
all documents required to be filed with the Commission pursuant to
Section 13 or 14 of the 1934 Act.
(i) Between the date of the Terms Agreement and the later of
termination of any trading restrictions or Closing Time with respect
to the Guaranteed Securities covered thereby, except for the issuance
of senior debt securities upon the exercise of debt warrants, if any,
neither the Company nor the Guarantor will, without the
Representative's prior consent, offer to sell, or enter into any
agreement to sell, any new issue of senior debt securities of the
Company or the Guarantor with a maturity of more than one year,
including additional Securities (other than borrowings under the
Guarantor's revolving credit agreements).
(j) 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 Guaranteed Securities 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 and sale of the Guaranteed Securities, 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 and sale is
directed are established, domiciled or resident. Prior to any offering
of the Guaranteed Securities, 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
offering documents relating to Guaranteed Securities offered or issued
by the Company (including advertisements and other documents
announcing the offer).
SECTION 4. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase Guaranteed Securities pursuant to
the Terms Agreement are subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantor herein contained, to the
accuracy of the statements of the Company and the Guarantor's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
by the Company and the Guarantor of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued
under the 1933 Act or
78
proceedings therefor initiated or threatened by the Commission, (ii)
the rating assigned by Xxxxx'x Investors Service, Inc., Standard &
Poor's Ratings Services and Fitch IBCA Duff and Xxxxxx, Inc. to any
long-term debt securities of the Company and the Guarantor as of the
date of the Terms Agreement shall not have been lowered since the
execution of such Terms Agreement and (iii) there shall not have come
to the Representative's attention any facts that would cause the
Representative to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Guaranteed Securities, included an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances existing at such time, not misleading.
(b) At the applicable Closing Time, the Representative shall
have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of Shearman & Sterling, special United States
counsel for the Company and counsel to the Guarantor, in form and
substance satisfactory to the Representative, 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 Guaranteed Securities 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
the Agreement, the Guaranteed Securities will be valid and
legally 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 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) The Agreement and the Delayed Delivery Contracts,
if any, have 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
Guaranteed Securities 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,
79
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 agreement of each
of the Guarantor and the Company, enforceable against each
such party in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, 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 except as enforcement
thereof is subject, in the case of Guaranteed Securities
denominated in a foreign currency, 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 Guaranteed Securities, the Indenture and the
Guarantee conform in all material respects as to legal
matters to the descriptions thereof in the Prospectus.
(vii) The Indenture has been duly qualified under the
1939 Act.
(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 Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(ix) The Registration Statement and Prospectus, and
each amendment or supplement thereto (except for the
financial statements and other financial data included
therein or omitted therefrom and the Statement of
Eligibility of the Trustee 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
Regulations.
(x) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial data included
80
therein or omitted therefrom, as to which such counsel need
express no opinion), as of the dates they were filed with
the Commission, appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1934 Act and the rules and regulations
of the Commission thereunder.
(xi) The execution and delivery of the 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
Supplement under the caption "United States Federal Income
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.
Such opinion shall also state that such counsel has not verified,
and is not passing upon and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, other
than those mentioned in (vi) and (xii)of subsection 4(b)(1) of
this Section. Such counsel has, however, generally reviewed and
discussed such statements with certain officers of the Company,
the Guarantor and its auditors. In the course of such review and
discussion, no facts have come to such counsel's attention that
lead such counsel to believe (i) that the Registration Statement
or any amendment thereto (except for the financial statements and
other financial data included therein or omitted therefrom and
the Statement of Eligibility of the Trustee on Form T-1, as to
which such counsel need not 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 (whichever is
later), or at the date of the 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 (ii) that the Prospectus
or any amendment or supplement thereto (except for the financial
statements and other financial data included therein or omitted
therefrom, as to which such counsel need not comment), at the
time the Prospectus was issued, at the time any such amended or
supplemented Prospectus was issued or at the applicable Closing
Time, 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.
(2) The favorable opinion, dated as of the applicable
Closing Time, of the General Counsel 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
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in the states in which its manufacturing plants are located, and
(ii) the execution and delivery of the Agreement, the Indenture,
the endorsement of the Guarantees on the Guaranteed Securities,
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, 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 is a party or by which it or any of them
is bound, or any law, administrative regulation or administrative
or court order known to him to be applicable to the Company, the
Guarantor or any of the Guarantor's subsidiaries.
(3) The favorable opinion, dated as of the applicable
Closing Time, of Xxxxx & Xxxx LLP, counsel for the Underwriters,
with respect to the matters set forth in (i) to (ix), of
subsection (b)(1) of this Section.
(4) OPINION OF COMPANY COUNSEL. The opinion of Xxxxx &
Xxxxxxx / Xxxxx & XxXxxxxx, 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
law of The Netherlands.
(ii) The Agreement, the Indenture have been duly
authorized, executed and delivered by the Company in
accordance with its resolutions 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.
(iii) The Guaranteed Securities 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 the Agreement, the
Indenture and the Guaranteed Securities.
(v) The execution and delivery of the Agreement, the
Indenture and the Guaranteed Securities, 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
82
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
the Agreement, the Indenture and the Guaranteed Securities
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 the
Agreement, the Indenture or any of the Guaranteed
Securities, it is not necessary that the Agreement or the
Indenture or any of the Guaranteed Securities 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 the 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
Guaranteed Securities, the Indenture and the Agreement by
the Company or the consummation by the Company of the
transactions 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
83
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 the Agreement, the
Indenture and the Guaranteed Securities would be in conflict
with current public policy in The Netherlands.
(xi) The Agreement, the Indenture and the Guaranteed
Securities, when issued, authenticated and delivered
pursuant to the provisions of the Agreement and the
Indenture are in proper legal form under the laws of The
Netherlands for the enforcement thereof against the Company,
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
Underwriters or the holders of the Guaranteed Securities in
connection with the issue and delivery of the Guaranteed
Securities pursuant to the Agreement or the execution,
delivery and performance of the Agreement, the Indenture or
the Guaranteed Securities.
(xiii) The Company is subject to civil and commercial
law with respect to its obligations under the Agreement, the
Indenture and the Guaranteed Securities 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 the Agreement, the Indenture and the Guaranteed
Securities 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 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 Guaranteed Securities
outside The Netherlands or any of the Underwriters will be
deemed resident, domiciled or conducting business in The
Netherlands solely by the execution, delivery, performance,
or enforcement of the Agreement, the Indenture or the
Guaranteed Securities.
(xv) None of the holders of the Guaranteed Securities
outside The Netherlands or any of the Underwriters will be
subject to taxation in The Netherlands solely by the
execution, delivery, performance, or enforcement of the
Agreement, the Indenture or the Guaranteed Securities,
provided such holder is not a private individual and does
not have a
84
substantial interest in the Company as described in the
Prospectus Supplement under "The 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.
(c) At the applicable Closing Time, there shall not have been,
since the date of the Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, any
material adverse change in the financial condition of the Company and
the Guarantor and its subsidiaries considered as one enterprise, or in
the results of operations or business prospects of the Company and the
Guarantor and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the
Representative shall have received a certificate of (y) the President,
any Executive Vice President, any Senior Vice President or any Vice
President of the Guarantor and (z) the principal executive, principal
financial or principal accounting officer of the Company, dated as of
such Closing Time, to the effect that there has been no such material
adverse change and to the effect that the other representations and
warranties of each of the Company and the Guarantor contained in
Section 1 are true and correct with the same force and effect as
though such Closing Time were a Representation Date.
(d) The Representative shall have received from Deloitte &
Touche or other independent certified public accountants acceptable to
the Representative a letter, dated as of the date of the Terms
Agreement and delivered at such time, in form heretofore agreed to
with respect to the Company and the Guarantor.
(e) The Representative shall have received from Deloitte &
Touche or other independent certified public accountants acceptable to
the Representative a letter, dated as of the applicable Closing Time,
reconfirming or updating the letter required by subsection (d) of this
Section to the extent that may be reasonably requested by the
Representative.
(f) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Guaranteed Securities 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 the Guaranteed Securities as herein
contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the Agreement may be terminated
by the Representative by notice to the Company and the Guarantor at any time at
or prior to the applicable Closing Time, and such
85
termination shall be without liability of any party to any other party except as
provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. The Company or the Guarantor will pay
all expenses incident to the performance of its obligations under the Agreement,
including (i) the printing and filing of the Registration Statement and all
amendments thereto, and the printing of the Agreement and the Terms Agreement,
(ii) the preparation, issuance and delivery of the Guaranteed Securities to the
Underwriters, (iii) the fees and disbursements of the Company's and the
Guarantor's counsel and accountants, (iv) the qualification of the Guaranteed
Securities issuable upon exercise of Debt Warrants under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
fee and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Surveys and Legal
Investment Surveys, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the registration statements and
all amendments thereto, of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Surveys and Legal Investment Surveys, (vii) the fees, if any, of rating
agencies and (viii) the fees and expenses, if any, incurred in connection with
the listing of the Guaranteed Securities or any Warrant Securities on any
national securities exchange.
If the Agreement is terminated by the Representative in accordance
with the provisions of Section 4 or Section 9(i), the Company or the Guarantor
shall reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 6. INDEMNIFICATION. (a) The Company and the Guarantor, jointly
and severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter 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 amendment thereto), 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 the Prospectus (or any amendment or supplement
thereto), 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 Underwriter through the Representative expressly for use
in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or was made in
reliance upon the Form T-1 of the Trustees under the Indenture;
86
(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.
In no case shall the Company or the Guarantor be liable under this
indemnity agreement with respect to any claim made against any Underwriter or
any such controlling person unless 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 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 and the Guarantor elect to assume the
defense, such defense shall be conducted by counsel chosen by them and
satisfactory to the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in any suit so brought. In the event that the
Company and the Guarantor elect to assume the defense of any such suit and
retain such counsel, the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in the suit shall bear the fees and expenses of
any additional counsel thereafter retained by them. In the event that the
parties to any such action (including impleaded parties) include both the
Company or the Guarantor on the one hand and one or more Underwriters on the
other and any such Underwriter shall have been advised by counsel chosen by it
and satisfactory to the Company and 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, neither the Company nor the Guarantor
shall have the right to assume the defense of such action on behalf of such
Underwriter and will reimburse such Underwriter and any person controlling such
Underwriter as aforesaid for the reasonable fees and expenses of any counsel
retained by them, it being understood that the neither the Company nor the
Guarantor shall, 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 Underwriters and
controlling persons, which firm shall be designated in writing by the
Representative. The Company and the Guarantor agree to notify the Representative
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 Guaranteed Securities.
(b) Each Underwriter severally agrees that it will indemnify and hold
harmless the Company and the Guarantor and each of their respective officers who
sign the Registration Statement and each of their respective directors and each
person, if any, who controls the
87
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
only with respect to statements or omissions made in the Prospectus (or any
amendment or supplement thereto) or the Registration Statement (or any amendment
thereto) in reliance upon and in conformity with written information furnished
to the Company and the Guarantor by or on behalf of such Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto). In case any
action shall be brought against the Company, the Guarantor or any person so
indemnified based on the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) and in respect of which
indemnity may be sought against any Under-writer, such Underwriter shall have
the rights and duties given to the Company and the Guarantor. In addition, the
Company, the Guarantor and each person so indemnified shall have the rights and
duties given to the Underwriters, by the provisions of subsection (a) of this
Section.
SECTION 7. CONTRIBUTION. If the indemnification provisions provided in
Section 6 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 the Underwriters on the other from
the offering of the Guaranteed Securities and also the relative fault of the
Company and the Guarantor on the one hand and the Underwriters 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 the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the aggregate
public offering price of the Guaranteed Securities. The relative fault shall be
determined by reference to, among other things, whether the indemnified party
failed to give the notice required under Section 6 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 the Guarantor on the one hand
or the Underwriters 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, the Guarantor and the Underwriters, directly or through
the Representative of the Underwriters. The Company, the Guarantor and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. 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 7
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 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by
88
which the total price at which the Guaranteed Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this Section 7 to contribute are several in proportion to their respective
underwriting obligations and not joint.
The obligations of the Company and the Guarantor under this Section 7
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 Underwriter within the meaning of Section 15 of
the 1933 Act; and the obligations of the Underwriters under this Section 7 shall
be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer who
signs the Registration Statement and each director of the Company or the
Guarantor and to each person, if any, who controls the Company or the Guarantor
within the meaning of Section 15 of the 1933 Act.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in the
Agreement, or contained in certificates of officers of the Company and the
Guarantor submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any termination of the Agreement, or any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company and the Guarantor, and shall survive delivery of any
Guaranteed Securities to the Underwriters.
SECTION 9. TERMINATION. The Representative may terminate the
Agreement, immediately upon notice to the Company or the Guarantor, at any time
prior to the applicable Closing Time (i) if there has been, since the date of
the Terms Agreement or since the respective dates as of which information is
given in the Registration Statement, 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 has 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 is such as to
make it, in the judgment of the Representative, impracticable to market the
Guaranteed Securities or enforce contracts for the sale of the Guaranteed
Securities, or (iii) if trading in the Common Stock of the Company or the
Guarantor has been suspended by the Commission or a national securities exchange
or if trading on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities. In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Guaranteed Securities shall
remain in effect so long as any Underwriter retains beneficial ownership of any
such Guaranteed Securities purchased from the Company pursuant to the
89
applicable Terms Agreement and (y) the covenant set forth in Section 3(c), the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions of Sections 8
and 17 shall remain in effect.
SECTION 10. DEFAULT. If one or more of the Underwriters participating
in an offering of Securities shall fail at the applicable Closing Time to
purchase the Guaranteed Securities which it or they are obligated to purchase
under the applicable Terms Agreement (the "Defaulted Securities"), then the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours the Representative shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the
Guaranteed Securities to be purchased pursuant to the Terms Agreement,
the non-defaulting Underwriters named in such Terms Agreement shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations thereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Guaranteed
Securities to be purchased pursuant to such Terms Agreement, the Terms
Agreement shall terminate without any liability on the part of any
non-defaulting Underwriters, the Company or the Guarantor.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the Agreement and the Terms Agreement.
SECTION 11. CONSENT TO JURISDICTION; APPOINTMENT OF UNDERWRITER FOR
SERVICE OF PROCESS.
Each of the parties irrevocably consents and agrees for the benefit of
the holders of the Guaranteed Securities and the Underwriters 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 the
Agreement, the Indenture, the Guarantees or the Guaranteed Securities 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 Guaranteed Securities 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 000 0xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 as its
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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 the Agreement or any
additional agreement and that may be made on such designee, appointee and
Underwriter in accordance with legal procedures prescribed for such courts. If
for any reason such designee, appointee and Underwriter hereunder shall cease to
be available to act as such, the Company agrees to designate a new designee,
appointee and Underwriter in the County of New York on the terms and for the
purposes of this Section 11 satisfactory to the Underwriters. 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 Underwriter
for service of process referred to in this Section 11 (whether or not the
appointment of such Underwriter shall for any reason prove to be ineffective or
such Underwriter 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 the Agreement. The Company
agrees that the failure of any such designee, appointee and Underwriter 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 Guaranteed Securities or the Underwriters 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 the
Agreement, the Indenture, the Guarantees or the Guaranteed Securities 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 11 shall survive any termination of the
Agreement, in whole or in part.
SECTION 12. 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
the Agreement or any additional agreement, the Company hereby irrevocably and
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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 13. FOREIGN TAXES.
All payments by the Company or the Guarantor to each of the
Underwriters 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 Underwriter having some connection with any
such jurisdiction other than its participation as Underwriter hereunder, and
(ii) any income or franchise tax on the overall net income of such Underwriter
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 the Agreement shall, to the
extent permitted by law, be increased to such amount as is necessary to yield
and remit to each Underwriter 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 14. JUDGMENT CURRENCY.
To the extent that the Guaranteed Securities are denominated or
payable in a currency other than U.S. dollars, each of the Company and the
Guarantor agrees to indemnify the Underwriters against any loss incurred by such
Underwriters 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 other than United States dollars (the "Judgment Currency") 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 Underwriters
are able to purchase United States dollars with the amount of the Judgment
Currency actually received by the Underwriters. 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 15. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative; notices to the Guarantor
shall be directed to it at Xxx Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: Treasurer; and notices to the Company shall be directed to it at
Xxxxxxxxxxxxx 00, XX-0000, XX Xxxxx, Xxx Xxxxxxxxxxx, Attention: Managing
Director.
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SECTION 16. PARTIES. The Agreement shall inure to the benefit of and
be binding upon the Company, the Guarantor and any Underwriter who becomes a
party hereto, and their respective successors. Nothing expressed or mentioned in
the Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of the Agreement or any
provision herein contained. The Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Guaranteed Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 17. GOVERNING LAW. The Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such State. Any suit, action or
proceeding brought by the Company or the Guarantor against an Underwriter in
connection with or arising under the 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 18. COUNTERPARTS. The Terms Agreement may be executed in one
or more counterparts, and if executed in more than one counterpart the executed
counterparts shall constitute a single instrument.
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EXHIBIT A
XXXX DEERE B.V.
(a Netherlands corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
,20
XXXX DEERE B.V.
XXXXXXXXXXXXX 00
XX-0000
XX XXXXX
XXX XXXXXXXXXXX
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxx Deere B.V. (the
"Company"), and the Company agrees to sell to the undersigned on, _____________
20 (the "Delivery Date"),
principal amount of the Company's [insert title of security] (the "Securities"),
offered by the Company's Prospectus dated ,20 , as supplemented by its
Prospectus Supplement dated ____________,20 , receipt of which is hereby
acknowledged at a purchase price of [__% of the principal amount thereof, plus
accrued interest from __________,20 ,] [and $___ per Warrant, respectively] to
the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ,
on the Delivery Date, upon delivery to the undersigned of the Securities to
be purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before ____________, 20 , shall have sold to the Underwriters of the Securities
(the "Underwriters") such principal amount of the Securities as is to be sold
to them pursuant to the Terms Agreement dated ____________,20 between the
Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other
94
contracts similar to this contract. The undersigned represents and warrants to
you that its investment in the Securities is not, as of the date hereof;
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_______ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between the
Company and the undersigned when such copy is so mailed or delivered.
The Agreement shall be governed by the laws of the State of New York.
Yours very truly,
----------------------------------
(NAME OF PURCHASER)
BY
----------------------------------
(TITLE)
----------------------------------
----------------------------------
(ADDRESS)
Accepted as of the date first above written.
XXXX DEERE B.V.
By
-----------------------------------------
(TITLE)
95
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
---- ----------
96
