JOHN DEERE CAPITAL CORPORATION EXHIBIT 1.1
Medium-Term Notes, Series D
Due from 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
July 10, 2001
MERRILL, LYNCH, PIERCE, FENNER & SMITH CREDIT SUISSE FIRST BOSTON
INCORPORATED CORPORATION
World Financial Center 11 Madison Avenue
North Tower, 10th Floor New York, NY 10010
New York, New York 10281-1310
BANC OF AMERICA SECURITIES LLC DEUTSCHE BANC ALEX. BROWN INC.
100 N. Tryon Street 31 West 52nd Street
Charlotte, NC 28255 New York, NY 10019
BANC ONE CAPITAL MARKETS, INC. J.P. MORGAN SECURITIES INC.
1 Bank One Plaza 270 Park Avenue, 9th Floor
Suite IL1-0595 New York, NY 10017
Chicago, IL 60670
BNP PARIBAS SECURITIES CORP. SALOMON SMITH BARNEY INC.
787 Seventh Avenue 388 Greenwich Street, Floor 24
New York, NY 10019 New York, NY 10013
Dear Sirs:
John Deere Capital Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Banc of America Securities LLC, Banc One Capital Markets, Inc.,
BNP Paribas Securities Corp., Credit Suisse First Boston Corporation, Deutsche
Banc Alex. Brown Inc., J.P. Morgan Securities Inc. and Salomon Smith Barney Inc.
(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 March 15, 1997 (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, 1997 (the "Subordinated Indenture", and
together with the Senior Indenture, the "Indentures"), between the Company and
Bank One National Association, (as successor in interest to The First National
Bank of Chicago), 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. $3,850,850,000 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. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold through or to one or
more of the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
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") a registration statement on Form S-3 (No. 333-62622) which also acts as a
post-effective amendment No. 1 to registration statement No. 333-39012 and to
registration statement No. 333-69601 for the registration of debt securities,
including the Notes, warrants to purchase such debt securities and preferred
stock, 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. 333-62622), which also acts as a
post-effective amendment No. 1 to each of registration statement No. 333-39012
and to registration statement No. 333-69601, has 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
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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
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
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Notes (whether through such Agent as agent or to such Agent as principal) (the
date of each such delivery to an Agent as principal being hereafter referred to
as a "Settlement Date"), and as of the times referred to in Section 7(b) hereof
(each of the times referenced above being referred to hereafter as a
"Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied and, as of the
applicable Representation Date, will comply in all material respects
with the requirements of the 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
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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 (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 its parent company, Deere &
Company ("Deere"), pursuant to any indenture, loan agreement,
contractor other agreement or instrument to which the Company or Deere
is a party or by which the Company or Deere may be bound or to which
any of the property or assets of the Company or Deere is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or, to the best of its knowledge,
any order, rule or regulation applicable to the Company of any court
or of any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company.
(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 caption
"Description of 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.
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(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.
(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 Company and the applicable Agent. Each such Terms
Agreement, whether oral (and confirmed
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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 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, and (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. 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 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
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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
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 with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with
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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 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.
(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 the Notes
that are to be sold pursuant to such Terms Agreement and debt securities with
maturities of less than nine months in the ordinary course of business).
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(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 Shearman &
Sterling, 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 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
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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 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 DEERE. The opinion of the
General Counsel of Deere or Michael A. Harring, Associate General
Counsel of Deere, to the effect that (i) the Company is duly qualified
to transact business and is in good standing
11
in the states of Georgia, Maryland, Nevada and Tennessee, (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 is a party or by
which it is bound, or any law, administrative regulation or
administrative or court order known to him applicable to the Company
and (iii) the execution and delivery of this Agreement and each
Indenture and the consummation of the transactions herein and therein
contemplated will not conflict with or constitute a breach of any
agreement, indenture or other instrument known to him of which Deere
or any of its subsidiaries is a party or by which any of them is
bound.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Sidley
Austin Brown & 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
Sidley Austin 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 Shearman & Sterling 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 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,
12
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 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
13
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, warranties and
agreements to survive delivery of Section 11 hereof and the provisions set forth
under "Parties" of Section 15 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
14
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 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.
15
(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 Shearman & Sterling, counsel to the Company, and
either the General Counsel for the Company, Michael A. Harring, Associate
General Counsel for Deere, 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 Sidley Ausin Brown & 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 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
16
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 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
17
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 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
18
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 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
19
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;
(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
20
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 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 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
21
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 15 hereof shall remain in effect.
SECTION 13. 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:
John Deere Capital Corporation
Suite 600
1 East First Street
Reno, Nevada 89501
Attention: Manager
Telecopier: (775) 786-4145
with a copy to:
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
22
Telecopier: (309) 765-5021
If to Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopier: (212) 449-2234
If to Banc of America Securities LLC:
Banc of America Securities LLC
100 N. Tryon Street
Charlotte, NC 28255
Attn: Transaction Management
Telecopier: 704-388-9939
If to Banc One Capital Markets, Inc.:
Banc One Capital Markets, Inc.
1 Bank One Plaza
Suite IL1-0595
Chicago, IL 60670
Attn: Investment Grade Securities
Telecopier: 312-732-4773
If to BNP Paribas Securities Corp.:
BNP Paribas Securities Corp.
787 Seventh Avenue
New York, NY 10019
Attn: Fixed Income Syndicate Desk
Telecopier: 212-841-3930
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, NY 10010
Attn: Short and Medium-Term Finance
Telecopier: 212-743-5825
23
If to Deutsche Banc Alex. Brown Inc.:
Deutsche Banc Alex. Brown Inc.
31 West 52nd Street
New York, NY 10019
Attn: Syndicate Desk
Telecopier: 212-469-7875
If to J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc.
270 Park Avenue, 9th Floor
New York, NY 10017
Attn: Transaction Execution Group
Telecopier: 212-834-6702
If to Salomon Smith Barney Inc.:
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Attn: Medium Term Note Department
Telecopier: 212-816-0949
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 13.
SECTION 14. 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 15. 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
24
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
25
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,
JOHN DEERE CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
MERRILL, LYNCH, PIERCE, FENNER & SMITH CREDIT SUISSE FIRST BOSTON CORPORATION
INCORPORATED
By:
By: ----------------------------------
-------------------------------- Name:
Name: Title:
Title:
BANC OF AMERICA SECURITIES LLC DEUTSCHE BANC ALEX. BROWN INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
BANC ONE CAPITAL MARKETS, INC. J.P. MORGAN SECURITIES INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
BNP PARIBAS SECURITIES CORP. SALOMON SMITH BARNEY INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
Title: Title:
26
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.
A-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:
Indexed Currency, if any:
Base Exchange Rate, if any:
Additional Terms:
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.
B-1