Exhibit 1.1
LANDESKREDITBANK BADEN-WURTTEMBERG - FORDERBANK
AND
o
AND
o
o o% Global Notes due o
SUBSCRIPTION AGREEMENT
-----------------------
o
SUBSCRIPTION AGREEMENT dated o
among
(1) LANDESKREDITBANK BADEN-WURTTEMBERG - FORDERBANK, a public law
institution (rechtsfahige Anstalt des offentlichen Rechts) under the
laws of the State of Baden-Wurttemberg (the "Issuer"), and
(2) o (the "Lead Manager[s]")
(3) o (each a "Manager" and together with the Lead Manager, the
"Managers")].
The parties hereby record the arrangements between them in respect of an issue
of o o% Global Notes due o of the Issuer (the "Notes").
[In case of an issue of Notes with more than one Lead Manager insert: References
herein to "the Lead Manager" shall mean o in relation to all functions, duties
and obligations to be carried out by such Lead Manager as set out herein.]
1. AGREEMENT TO ISSUE; THE NOTES; THE AGREEMENTS
(1) The Issuer agrees to issue the Notes on o or on such later date not
being later than o as the Issuer and the Manager[s] may agree (the
"Closing Date").
(2) The terms and conditions applicable to the Notes are set forth in the
Terms and Conditions of the Notes (the "Conditions") attached hereto
as Schedule 1.
(3) The Notes will be issued in the denomination of [insert Designated
Currency] o each and will be represented by
[in case of Notes represented by (i) a permanent global note deposited
with or on behalf of the relevant Euro Clearing System (as defined
below) and (ii) one or more permanent global note(s) deposited with or
on behalf of DTC (as defined below) (the "Dual Note Structure Notes")
insert: two or more permanent global certificates without interest
coupons. One of the permanent global certificates (the "Euro Global
Certificate") will be kept in custody by [Clearstream Banking AG,
Frankfurt am Main ("CBF")] [a common depositary for Euroclear Bank
S.A./N.V. ("Euroclear") and Clearstream Banking, societe anonyme,
Luxembourg ("CBL")] (the "Euro Clearing System") until all obligations
of the Issuer under the Notes have been satisfied. The Euro Global
Certificate is issued in bearer form and represents the Notes kept in
custody for financial institutions that are accountholders of the Euro
Clearing System, including such Notes which are held through [CBF] [,]
[or] [Euroclear] [or] [CBL], and further including such Notes which are
held through any other clearing system which maintains an account with
the Euro Clearing System. The other permanent global certificate(s)
(the "DTC Global Certificate" and, together with the Euro Global
Certificate, the "Global Certificates") will be kept in custody by
Deutsche Bank Trust Company Americas ("DBTCA"), or any successor, as
custodian for The Depository Trust Company, New York ("DTC") until all
obligations of the Issuer under the Notes have been satisfied. The DTC
Global Certificate will be issued in registered form in the name of
Cede & Co., as nominee of DTC, and represents the Notes kept in custody
for financial institutions that are participants in DTC. Together, the
Notes represented by the Euro Global Certificate and the DTC Global
Certificate, respectively, will equal the aggregate principal amount of
the
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Notes outstanding at any time. The amount of Notes represented by each
of the Euro Global Certificate and the DTC Global Certificate is
evidenced by the register (the "Register") maintained for that purpose
by the Registrar (subsection (4)). The Euro Global Certificate and the
DTC Global Certificate will be substantially in the form set out in
Schedule 2A and 2B, respectively.]
[in case of Notes represented by one or more permanent global notes
deposited with or on behalf of DTC (as defined below) (the "Single Note
Structure Notes") insert: one or more permanent global certificates
without interest coupons (the "Global Certificates"). The Global
Certificates will be kept in custody by Deutsche Bank Trust Company
Americas ("DBTCA"), or any successor, as custodian for The Depository
Trust Company, New York ("DTC"). The Global Certificates will be in
registered form in the name of Cede & Co., as nominee of DTC recorded
in a register kept by DTC. The Global Certificates will be
substantially in the form set out in Schedule 2.]
The right to demand the printing and delivery of definitive Notes and
interest coupons shall be excluded.
(4) Concurrently with the signing of this Agreement, the Issuer entered
into a supplemental agency agreement (the "Supplemental Agency
Agreement") with [Deutsche Bank Aktiengesellschaft as registrar (the
"Registrar") and principal paying agent for the Issuer and DBTCA, as
U.S.-Paying Agent (the principal paying agent and the U.S.-paying agent
together the "Paying Agents" and each a "Paying Agent")) [DBTCA as
principal paying agent for the Issuer (the "Paying Agent")]. The
Supplemental Agency Agreement supplements the agency agreement executed
by the Issuer, Deutsche Bank Aktiengesellschaft and DBTCA dated March
o, 2005.
This Agreement and the Supplemental Agency Agreement are together
referred to herein as the "Agreements".
2. PURCHASE
[In case of U.S. dollar denominated notes insert: Each of the Managers agrees to
purchase the Notes severally and not jointly on the Closing Date in such
principal amounts as set forth in Schedule 3 at the issue price of o% of the
principal amount of the Notes (the "Issue Price").] [in case of non U.S. dollar
denominated Notes insert: The Managers agree to purchase the aggregate principal
amount of Notes on the Closing Date at the issue price of o% of the principal
amount of the Notes (the "Issue Price"). The obligation of the Managers to
purchase the Notes shall be joint and several.]
3. DISCLOSURE
(1) The Issuer confirms that:
(i) it has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities
Act"), a registration statement (number o), including
a prospectus dated o, and relating to certain of its
debt securities (including the Notes) and the
offering thereof from time to time on a delayed or
continuous basis pursuant to Release Nos. 33-6240 and
33-6424 under the Securities Act;
(ii) such registration statement has been declared
effective by the Commission; and
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(iii) a prospectus supplement dated o reflecting the terms
of the Notes, the terms of the offering thereof and
the other matters set forth therein has been filed
pursuant to Rule 424 under the Securities Act. Such
prospectus supplement, in the form dated o and filed
on o pursuant to Rule 424 under the Securities Act,
is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended
at the date hereof, including the exhibits thereto,
is herein referred to as the "Registration
Statement", and the prospectus dated o included
therein relating to offerings of securities under
the Registration Statement, as supplemented by the
Prospectus Supplement, is herein referred to as the
"Prospectus", except that, if such prospectus is
amended or supplemented on or prior to the date on
which the Prospectus Supplement is first filed
pursuant to Rule 424 under the Securities Act, the
term "Prospectus" shall refer to the prospectus as
so amended or supplemented by the Prospectus
Supplement.
(2) The Registration Statement and the Prospectus are together referred
to as the "Disclosure Documents".
(3) The Issuer hereby authorizes the Managers to distribute copies of
the Disclosure Documents in connection with the offering and sale
of the Notes.
(4) The Issuer and each of the Managers agree that they will comply
with the requirements of the Securities Act in connection with
the offering of the Notes and the distribution of the Prospectus
within the United States of America (the "United States").
4. STABILIZATION
(1) In connection with this offering of Notes, the Lead Manager or its
affiliates may purchase and sell the Notes in the open market. These
transactions may include short sales, stabilizing transactions and
purchases to cover positions created by short sales. Short sales
involve the sale by the Lead Manager or its affiliates of a greater
number of the Notes than they are required to purchase in the offering.
Stabilizing transactions consist of certain bids or purchases made for
the purpose of preventing or retarding a decline in the market price of
the Notes while the offering is in progress.
These activities by the Lead Manager or its affiliates may stabilize,
maintain or otherwise affect the market price of the Notes. As a
result, the price of the Notes may be higher than the price that
otherwise might exist in the open market. If these activities are
commenced, they may be discontinued by the Lead Manager or its
affiliates at any time. These transactions may be effected in the
over-the-counter market or otherwise.
However, the Issuer shall not in any event be obliged to issue more
than o in principal amount of the Notes.
The Lead Manager may also impose a penalty bid. This occurs when a
particular Manager repays to the Lead Manager a portion of the
underwriting discount received by it because the Lead Manager or its
affiliates have repurchased Notes sold by or for the account of such
Manager in stabilizing or short covering transactions.
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(2) As between the Issuer and the Lead Manager, any loss resulting from
stabilization shall be borne, and any profit arising therefrom shall be
retained, by the Lead Manager.
5. DISTRIBUTION IN THE UNITED STATES
The Managers have agreed for the benefit of the Issuer in the invitation fax
with respect to the offering of the Notes to comply with certain limits on the
amount of Notes that may be sold in the United States (o% of the aggregate
principal amount) (the "US Sales Amount"). Each Manager agrees to notify in
writing Shearman & Sterling LLP, as counsel to the Managers, of the U.S. Sales
Amount applicable to it seven calendar days after the Closing Date. The Managers
agree to cause Shearman & Sterling LLP to promptly thereafter report the
aggregate U.S. Sales Amounts applicable to the Managers to the Issuer. For
purposes of the foregoing, the U.S. Sales Amount applicable to a Manager shall
mean the total aggregate principal amount of Notes initially sold in the United
States by such Manager as part of its initial allotment.
[In case of Dual Note Structure Notes insert:
In addition, the Lead Manager on behalf of the Managers agrees to notify in
writing the Issuer on or before the Closing Date of the relevant details as to
the number of Notes to be represented by the Euro Global Certificate and the
number of Notes to be represented by the DTC Global Certificate.]
6. SELLING RESTRICTIONS REPRESENTATIONS BY THE MANAGERS
(1) Each Manager agrees with the Issuer to be bound by the terms and
provisions set out in Schedule [4].
(2) Each Manager agrees with the Issuer that, in connection with the issue,
offering and distribution of the Notes:
(a) in the United States, it will comply with the requirements of the
Securities Act;
(b) outside the United States:
(i) it will not make, and warrants that it has not made, any
representation regarding the Issuer or the Notes other than
(x) as contained in any of the Agreements and the Disclosure
Documents, or which is fairly derived and is consistent
with, those contained in any of the Agreements and the
Disclosure Documents, or (y) as is approved or provided by
the Issuer for the purpose of the issue, offering and
distribution of the Notes; and
(ii) it will not provide, and warrants that it has not provided,
any information regarding the Issuer or the Notes other than
(x) that which is contained in or is fairly derived from and
is consistent with, any of the Agreements and the Disclosure
Documents, or (y) information already in the public domain.
(3) Each Manager agrees to indemnify the Issuer and each other Manager and
their respective directors (or persons performing similar functions),
officers and employees, and any affiliate of the Issuer or such
Manager, against any loss, liability, cost, expense, claim or action
(including all reasonable costs, charges or expenses paid or incurred
in disputing or defending any of the foregoing) which any of them may
incur or which may be made against any of them arising out of, in
relation to or in connection with, any failure by it to observe the
terms and provisions set out in Schedule [4] and in subsection (2)
hereof.
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(4) The obligations of the Managers under Section 6(1)-(3) and Schedule [4]
are several.
(5) Each of the Managers warrants to the Issuer that it did not and will
not offer or sell the Notes and did not and will not procure any of its
subsidiaries or affiliated companies to offer or sell any Notes at a
price other than the fixed re-offer price of o% of the principal amount
of the Notes until notified by the Lead Manager that the issue was free
to trade.
(6) [In case all Managers have granted power of attorney in a master
agreement among underwriters to the Lead Manager insert: All Managers
have granted power of attorney to the Lead Manager by signing the Lead
Manager's master agreement among underwriters. The Lead Manager agrees
to provide][In case not all Managers have granted power of attorney to
the Lead Manager by signing the Lead Manager's master agreement among
underwriters insert: All Managers except [ ] have granted power of
attorney to the Lead Manager by signing the Lead Manager's master
agreement among underwriters. The Lead Manager agrees to provide the
Issuer with copies of the powers of attorney of [ ] and] the name,
title and specimen signature of the authorized signatories of the Lead
Manager in respect of the Subscription Agreement.
7. REPRESENTATIONS AND WARRANTIES
(1) The Issuer represents and warrants to the Managers as of the date
hereof and as of the Closing Date as follows:
(a) the Issuer is a public law institution (rechtsfahige Anstalt
des offentlichen Rechts) under the laws of the State of
Baden-Wurttemberg;
(b) all the capital of the Issuer is held by the State of
Baden-Wurttemberg;
(c) the financial statements of the Issuer that are contained in
the Disclosure Documents were prepared in accordance with
the requirements of law and with accounting principles
generally accepted in the Federal Republic of Germany
("Germany") for institutions like the Issuer (including the
Regulation on the Accounting Principles applied to Credit
Institutions and Financial Services Institutions (Verordnung
uber die Rechnungslegung der Kreditinstitute und
Finanzdienstleistungsinstitute)), consistently applied and
they give a true and fair view of the financial condition of
the Issuer as at the dates, and the results of operations of
the Issuer for the periods, in respect of which they have
been prepared and since the date of the last audited
financial statements of the Issuer referred to in the
Disclosure Documents there has been no material adverse
change or any development involving a prospective material
adverse change in the condition (financial or other) of the
Issuer, except as disclosed in the Prospectus;
(d) (i) the Registration Statement has been declared effective
and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of the
Issuer, threatened by the Commission, (ii) the Disclosure
Documents comply, and, as of the date of an amendment or
supplement, if applicable, will comply, in all material
respects with the Securities Act, (iii) the Registration
Statement, when it became effective, did not contain and, as
of the date of an amendment or supplement, if applicable,
will not contain any 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,
and (iv) the Prospectus does not contain and, as of the date
of an amendment or supplement, if applicable, will not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing
representations and warranties shall not apply to statements
or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information
relating to any Manager furnished to the Issuer by such
Manager expressly for use therein;
(e) the issue of the Notes and the execution and delivery of the
Agreements have been duly authorized by the Issuer and
constitute legal, valid and binding obligations of the Issuer
enforceable in accordance with their respective
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terms, subject, in each case, to the laws affecting the
rights of creditors generally, in particular laws of
insolvency(1);
(f) the Notes, upon due execution, issue and delivery in
accordance with the Supplemental Agency Agreement, will
constitute legal, valid and binding obligations of the Issuer
enforceable in accordance with their terms, subject to the
laws affecting the rights of creditors generally, in
particular laws of insolvency(1);
(g) the execution and delivery of the Agreements, the issue,
offering and distribution of the Notes and the performance of
the terms of any of the foregoing will not violate any law or
regulation and will not result in any violation of the terms
of any instrument or agreement to which the Issuer is a party
or by which the Issuer or its property is bound;
(h) other than set forth in the Prospectus, the Issuer is not
engaged (whether as defendant or otherwise) in, nor has the
Issuer knowledge of the existence of, or any threat of, any
legal, arbitration, administrative or other proceedings the
result of which might relate to claims or amounts which might
be material in the context of the issue and offering of the
Notes or which might have or have had a material adverse
effect on the financial position or operations of the Issuer
and its subsidiaries taken as a whole;
(i) all licenses, consents, approvals, authorizations, orders and
clearances of all regulatory authorities or other governmental
and administrative agencies or bodies required by the Issuer
for or in connection with the issue and offering of the Notes,
the execution and issue of, and compliance by the Issuer with
the terms of the Notes, and the execution and delivery of, and
compliance with the terms of, the Agreements have been
obtained and are in full force and effect;
(j) the Issuer has, during the twelve calendar months preceding
the commencement of the offer of the Notes, offered debt
securities to the public in Germany for an extended period (as
such term is used in the German Securities Selling Prospectus
Act - Wertpapier-Verkaufsprospektgesetz);
(k) the persons named in the list referred to in paragraph 3 of
Schedule [5] hereto are authorized to represent the Issuer and
to take any action on behalf of it with binding effect;
(l) no registration of the Issuer as an "investment company" under
the U.S. Investment Company Act 1940 is required for the
issuance and sale by the Issuer of the Notes in the manner
contemplated by the Disclosure Documents and the Agreements;
(m) neither the Issuer nor any of its affiliates, nor any person
acting on its or their behalf have taken or will take,
directly or indirectly, any action prohibited by Rule 102 of
Regulation M under the Securities Exchange Act 1934, as
amended (the "Exchange Act"), in connection with the issue of
the Notes;
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(1) Pursuant to ss. 12 Insolvenzordnung (Insolvency Act) and ss. 45
Baden-Wurttembergisches Ausfuhrungsgesetz zum Gerichtsverfassungsgesetz
(Implementing Law of the State of Baden-Wurttemberg relating to the
Federal Judicature Act), insolvency proceedings may not be instituted
against L-Bank.
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(n) the Issuer has not engaged, and will not engage, in any
jurisdiction in any activity with respect to the issue and
offering of the Notes that is not permitted by the laws of
such jurisdiction;
(o) [in case of unsubordinated Notes insert: the Notes will be
unsecured and unsubordinated obligations of the Issuer and
will rank pari passu among themselves and (save for certain
debts required to be preferred by law) at least equally with
all other unsecured and unsubordinated obligations of the
Issuer, from time to time outstanding] [in case of
subordinated Notes insert: the Notes will constitute unsecured
and subordinated obligations of the Issuer and will rank pari
passu among themselves and at least equally in priority of
payment and in all other respects without any preference with
all other unsecured and subordinated obligations of the
Issuer, all except as otherwise determined by mandatory rules
of law]; and
(p) the Issuer has been informed of the existence of the FSA
stabilizing guidance contained in section MAR 2 Annex 2G of
the FSA Handbook.
(2) The Issuer agrees to indemnify each Manager and its directors, officers
and employees, and any affiliate of such Manager, against any loss,
liability, cost, expense, claim or action (including all reasonable
costs, charges and expenses paid or incurred in disputing or defending
any of the foregoing), which such Manager or such aforementioned
persons may incur or which may be made against it arising out of, in
relation to or in connection with, any inaccuracy or alleged inaccuracy
of any of the representations and warranties contained in subsection
(1) or in connection with any untrue statement or alleged untrue
statement contained in any Disclosure Document or any omission or
alleged omission to state therein a material fact to make the
statements therein not misleading, except insofar as such losses,
liabilities, costs, expenses, claims or actions are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Manager furnished to the Issuer
in writing by such Manager expressly for use therein.
8. AGREEMENTS OF THE ISSUER
The Issuer agrees as follows:
(1) if not filed as of the date hereof, to file the Prospectus Supplement
with the Commission within the time periods specified by Rule 424 under
the Securities Act;
(2) to deliver, at the expense of the Issuer, to the Lead Manager and to
U.S. counsel for the Managers, a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each
case without exhibits, and, during the period mentioned in paragraph
(5) below, to each Manager as many copies of the Prospectus (including
all amendments and supplements thereto) as the Lead Manager may
reasonably request;
(3) before filing any amendment or supplement to the Registration Statement
or the Prospectus applicable to the Notes, whether before or after the
time the Registration Statement becomes effective, to furnish to the
Lead Manager on behalf of the Managers a copy of the proposed amendment
or supplement for review and not to file any such proposed amendment or
supplement to which the Lead Manager on behalf of the Managers promptly
and reasonably objects;
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(4) to advise the Lead Manager on behalf of the Managers promptly, and to
confirm such advice in writing (i) as to when any amendment to the
Registration Statement applicable to the Notes shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus for any additional information, in each case applicable to
the Notes, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose and (iv)
of the receipt by the Issuer of any notification with respect to the
suspension of the qualification of the Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(5) if, during such period of time within six months after the first date
of the public offering of the Notes, as in the view of U.S. counsel for
the Managers which U.S. counsel to the Managers will communicate to the
Issuer, a prospectus is required by law to be delivered in connection
with sales by any Manager or dealer, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to notify the Lead Manager on behalf of the Managers and upon
request of the Lead Manager on behalf of the Managers to prepare and
furnish, at their own expense, to the Managers and to the dealers
(whose names and addresses the Lead Manager will furnish to the Issuer)
to which Notes may have been sold by any Manager and to any other
dealers, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law; and in
case any Manager is required to deliver the Prospectus in connection
with sales of any Notes at any time six months or more after the date
of the Prospectus, upon request of the relevant Manager, but at the
expense of such Manager, to prepare and furnish to such Manager an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act;
(6) to make generally available to holders of the Notes and to the Lead
Manager on behalf of the Managers as soon as practicable an earnings
statement or statements of the Issuer (in the English language)
covering a period of at least twelve months beginning with the first
fiscal year of the Issuer occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(7) to endeavor to qualify the Notes for offer and sale under the
securities or blue sky laws of such jurisdictions as the Lead Manager
on behalf of the Managers shall reasonably request and to continue such
qualification so long as reasonably necessary for the distribution of
the Notes and to pay all fees and expenses (including fees and
disbursements of counsel to the Managers) reasonably incurred in
connection with such qualification and in connection with the
determination of the eligibility of the Notes for investment under the
laws of such jurisdictions as the Lead Manager on behalf of the
Managers may designate; provided that the Issuer shall not be required
to register or qualify as a foreign corporation or a dealer in
securities or to subject itself to taxation or to file a general
consent to service of process in any jurisdiction; and
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(8) to forthwith notify the Lead Manager, on behalf of the Managers, if, at
any time prior to payment of the net subscription amount (as set out in
Section 10) to the Issuer, anything occurs which renders or may render
untrue or incorrect in any respect any of the representations and
warranties given by it.
9. CLOSING CONDITIONS
(1) The Managers shall be obliged to pay for, and take delivery of the
Notes only (A) if: (i) as of the Closing Date, the representations,
warranties and agreements of the Issuer herein contained are true and
correct and have been duly complied with (to the extent that such
compliance is due on or before the Closing Date), (ii) no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission, and (B) subject to:
(a) receipt by the Lead Manager, on behalf of the Managers, on the
Closing Date of a certificate of the Issuer dated the Closing
Date and signed on behalf of the Issuer certifying that as of
the Closing Date, the representations and warranties contained
in Section 7 are true and correct as if made on the Closing Date
and that the Issuer has complied with all agreements herein
contained (to the extent that such compliance is due on or
before the Closing Date);
(b) receipt by the Lead Manager, on behalf of the Managers, on the
Closing Date of legal opinions dated the Closing Date, in the
form agreed with the Lead Manager on behalf of the Managers,
from:
(i) the Legal Department of the Issuer as to the laws of
Germany; and
(ii) Shearman & Sterling LLP, legal advisers to the Managers in
the United States and in Germany;
(c) receipt by the Lead Manager, on behalf of the Managers, on the
Closing Date of a letter dated the Closing Date of Shearman &
Sterling LLP to the effect that such counsel has participated in
the preparation of the Registration Statement and the Prospectus
and that no fact has come to the attention of such counsel which
gave them reason to believe (i) that the Registration Statement
and the Prospectus (except for the financial statements and
other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no belief) at
the time the Registration Statement became effective contained
any 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, as of the date of such amendment and supplement, if
applicable (except for the financial statements and other
financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no belief), as
of its date and as of the date of such letter, contained or
contains any 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;
(d) receipt [insert in case of Single Note Structure Notes: by the
principal paying agent for Single Note Structure Notes four days
prior to the Closing Date of the Global Certificates duly
executed on behalf of the Issuer for authentication and delivery
on the Closing Date of the Global Certificates to DBTCA, as
custodian for DTC] [insert in case of Dual Note Structure Notes:
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(i) by the principal paying agent for Dual Note Structure Notes
four days prior to the Closing Date of the Euro Global
Certificate duly executed on behalf of the Issuer for
authentication and delivery of the Euro Global Certificate [to
CBF] [to Deutsche Bank Aktiengesellschaft in its capacity as
common depositary for Euroclear and CBL] and (ii) by the
U.S.-paying agent for Dual Note Structure Notes four days prior
to the Closing Date of the DTC Global Certificate duly executed
on behalf of the Issuer for authentication and delivery on the
Closing Date of the DTC Global Certificate to DBTCA, as
custodian for DTC], against payment of the net subscription
price for the Notes pursuant to Section 10;
(e) receipt by the Lead Manager, on behalf of the Managers, not
later than one business day in Frankfurt before the Closing Date
of the documents listed in Schedule [5];
(f) receipt by the Lead Manager, on behalf of the Managers, on the
date of this Agreement and the Closing Date of letters, in the
form agreed with the Lead Manager on behalf of the Managers,
dated the date of this Agreement and the Closing Date,
respectively, from PwC Deutsche Revision Aktiengesellschaft
Wirtschaftsprufungsgesellschaft, auditors of the Issuer; and
(g) receipt by the Lead Manager, on behalf of the Managers, of a
copy of the Supplemental Agency Agreement as executed, delivered
and exchanged by the respective parties thereto.
(2) The Lead Manager on behalf of the Managers may, at its discretion and
upon terms as it deems appropriate, waive compliance with the whole or
any part of subsection (1).
10. DELIVERY AND PAYMENT
Not later than 10:00 a.m. ([New York] time) on the Closing Date, the Lead
Manager on behalf and for the account of the Managers shall pay, or cause
payment of, the net subscription amount of o (being the Issue Price pursuant to
Section 2, less the commissions pursuant to Section 12(1) [and the expenses lump
sum specified in Section 12(2)(b)] in immediately available funds to such
account as the Issuer may specify to the Lead Manager not later than three days
before the Closing Date, such payment to be made against delivery of the Global
Certificates representing the Notes duly authenticated on behalf of the relevant
Paying Agent.
11. INDEMNIFICATION
(1) The Issuer agrees to indemnify each Manager and its directors, officers
and employees and each person, if any, who controls such Manager within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and any affiliate of such Manager, from and against
any and all losses, claims, damages and liabilities arising out of or
in connection with the distribution of the Notes in the United States
(including without limitation the legal fees and other expenses
reasonably incurred in connection with any such suit, action or
proceeding or claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus distributed in compliance with the
provisions of this Agreement, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished to the Issuer in writing by
or
11
on behalf of such Manager expressly for use therein; provided that the
foregoing indemnity with respect to any preliminary prospectus
supplement shall not inure to the benefit of such Manager (or to the
benefit of any person controlling such Manager) from whom the person
asserting any such losses, claims, damages or liabilities purchased
Notes if such untrue statement or omission or alleged untrue statement
or omission made in such preliminary prospectus supplement is
eliminated or remedied in the Prospectus and, if required by law, a
copy of the Prospectus shall not have been furnished to such person at
or prior to the written confirmation of the sale of such Notes to such
person.
(2) Each Manager agrees [in case of non U.S. dollar denominated Notes
insert: , severally and not jointly,] to indemnify the Issuer, its
directors (or persons performing similar functions), officers and
employees and other persons who sign the Registration Statement and
each person, if any, who controls the Issuer within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Issuer to
such Manager, but only with reference to information furnished to the
Issuer by or on behalf of such Manager in writing expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
(3) If any suit, action, proceeding (including any governmental
investigation), claim or demand shall be brought or asserted in the
United States against any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(the "Indemnified Person") shall promptly notify the person against
whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time after receiving such request to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named
parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to one local counsel in each jurisdiction in
which local counsel might be reasonably required or desirable) for all
such Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for a Manager
shall be designated in writing by the Lead Manager, on behalf of the
Managers, and any such separate firm for the Issuer or its directors
(or persons performing similar functions), officers, employees or other
persons who sign the Registration Statement and such control persons of
the Issuer shall be designated in writing by the Issuer. The
Indemnifying Person shall not be liable for any settlement of any
proceeding in which it has elected to participate effected without its
written consent, but if such a suit is settled with such consent or if
any proceeding in which the Indemnifying Person, after having received
notice thereof, shall have elected not to participate is settled with
or without such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify the Indemnified
Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the
12
foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence
of this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid
request, such request, however, having remained without reply, and
(ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of
such proceeding.
(4) If the indemnification provided for in this Section 11 is unavailable
or insufficient to hold harmless an Indemnified Person, then the
respective relevant Indemnifying Person shall contribute to the amount
paid or payable by such Indemnified Person as a result of the losses,
claims, damages or liabilities referred to above (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Issuer on the one hand and the Managers on the other from the offering
of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuer on the one hand and the
Managers on the other in connection with the statements or omissions
which resulted in losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received
by the Issuer on the one hand and the Managers 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 Issuer bear to the
total underwriting discounts and commissions received by the Managers.
The relative fault shall be determined by reference to, among other
things, 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 Issuer, on the one hand, or the
Managers, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an Indemnified Person as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection shall be deemed to include any legal
or other expenses reasonably incurred by such Indemnified Person in
connection with investigating or defending any action or claim which is
the subject of this subsection. Notwithstanding the provisions of this
subsection, no Manager shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes
subscribed by it and distributed to the public were offered to the
public exceeds the amount of any damages which the Manager 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(5) The indemnity agreements contained in this Section 11 are in addition
to any liability which each Indemnifying Person may otherwise have to
the Indemnified Persons referred to above.
13
The indemnity provisions contained in this Section 11 and the representations
and warranties of the Issuer contained herein shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Manager or any person controlling any
Manager or by or on behalf of the Issuer, its officers or directors (or persons
performing similar functions) or any person controlling the Issuer or signing
the Registration Statement and (iii) acceptance of and payment for any of the
Notes.
12. COMMISSIONS AND EXPENSES
(1) The Issuer agrees to pay to the Managers on the Closing Date total
commissions of o % of the principal amount of the Notes (and any value
added tax or other tax thereon) in consideration of the obligations of
the Managers to purchase the Notes. Such payment will be made by means
of deduction by the Lead Manager for the account of the Managers from
the Issue Price.
(2) In addition to the commissions payable pursuant to subsection (1), the
Issuer agrees
(a) to bear (together with any value added tax or other tax thereon)
(i) the fees and expenses of its own external legal advisers, if
any, (ii) the cost of obtaining any credit rating for the Notes,
(iii) the fees and expenses of [the Registrar and] the Paying
Agent[s], and (iv) all expenses in connection with the
Agreements, the Disclosure Documents and any amendments or
supplements thereto, (v) the expenses in connection with the
issue, authentication, packaging and initial delivery of the
Notes and the preparation of the Global Certificates; and
(b) [to pay to the Lead Manager for the account of the Managers a
lump sum as separately agreed between the Issuer and the Lead
Manager[s] on behalf of the Managers for expenses incurred by
the Managers in connection with the offering of the Notes.] [to
bear (together with any value added tax or other tax thereon)
all costs and expenses in connection with the services of the
legal advisers to the Managers in Germany and the United States
in connection with the issue and sale of the Notes.]
(3) The Issuer further agrees to pay promptly, and in any event before any
penalty becomes payable, any documentary, registration or similar duty
or tax payable in connection with the entry into, performance,
enforcement or admissibility in evidence of any Agreement or the Notes
and indemnify the Managers against any liability with respect to or
resulting from any delay in paying or omission to pay any such duty or
tax.
13. TERMINATION
(1) The Lead Manager, on behalf of the Managers, may, by notice to the
Issuer, terminate this Agreement upon consultation with the Issuer at
any time prior to payment of the net subscription monies to the Issuer
if, in the opinion of the Lead Manager, on behalf of the Managers,
(a) circumstances are such as:
(i) to prevent or restrict to a material extent payment for the
Notes in the manner contemplated in this Agreement; or
(ii) to prevent or restrict to a material extent settlement of
transactions in the Notes in the market or otherwise; or
14
(b) there shall have been:
(i) any change in national or international political, legal, tax
or regulatory conditions; or
(ii) any calamity or emergency, which has in their view caused a
substantial deterioration in the price and/or value of the
Notes.
(2) Upon such notice being given, the parties to this Agreement shall
(except for the liability of the Issuer under Section 12 in relation to
reasonable expenses already incurred or incurred in consequence of such
termination) be released and discharged from their respective
obligations under this Agreement.
[in case of U.S. Dollar denominated notes insert: (3) If on the Closing Date any
one of the Managers shall fail or refuse to purchase Notes which it or
they have agreed to purchase hereunder, and the aggregate principal
amount of Notes which such defaulting Manager or Managers agreed but
failed or refused to purchase is not more than fifteen per cent. of
the aggregate principal amount of the Notes, the other Managers shall
be obligated severally in the proportions that the principal amount of
Notes set forth opposite their respective names in Schedule 3 bears to
the aggregate principal amount of Notes set forth opposite the names
of all such non-defaulting Managers, or in such other proportions as
the representative of the non-defaulting Managers, which they shall
forthwith nominate to act on their behalf for the purposes of this
Section 13(3), may specify, to purchase the Notes which such
defaulting Manager or Managers agreed but failed or refused to
purchase on such date. If on the Closing Date any Manager or Managers
shall fail or refuse to purchase Notes and the aggregate principal
amount of Notes with respect to which such default occurs is more than
fifteen per cent. of the aggregate principal amount of Notes to be
purchased, and arrangements satisfactory to the representative of the
non-defaulting Managers and the Issuer for the purchase of such Notes
are not made within 36 hours after such default, this Agreement,
unless the Issuer and the representative of the non-defaulting
Managers have agreed otherwise, shall terminate upon prior notice to
the Issuer without liability on the part of the non-defaulting
Managers or the Issuer. In any such case each of the representative of
the non-defaulting Managers, on behalf of such Managers, and the
Issuer shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken
under this Section 13(3) shall not relieve any defaulting Manager from
liability in respect of any default of such Manager under this
Agreement.]
14. NOTICES AND COMMUNICATIONS
(1) Any document or information furnished or supplied in accordance with
this Agreement shall either be in the German or English language.
(2) All communications given hereunder shall be given by letter or fax,
posted or delivered by hand, and shall become effective upon receipt.
Any such notice or communication which would otherwise take effect
after 4:00 p.m. in the place of an addressee on any particular date
shall not take effect until 10:00 a.m. on the immediately succeeding
business day in the place of the addressee.
(3) Subject to written notice of change of address, all communications
hereunder shall be given to the following addresses:
15
(a) If to the Issuer, to:
Landeskreditbank Baden-Wurttemberg - Forderbank
Schlossplatz 10
76131 Karlsruhe
Germany
Telephone: +49 721 150-1144 or -3916
Fax: +49 721 150-1280
Attention: Bereich Treasury / Abwicklung
(b) If to the Managers, to:
Telephone: o
Fax: o
Attention: o
15. THE SCHEDULES; SEVERABILITY
(1) Schedules 1 to [5] form part of this Agreement.
(2) Should any provision of this Agreement be or become invalid in whole or
in part, the other provisions of this Agreement shall remain in force.
The invalid provision shall be deemed substituted by a valid provision,
which accomplishes as far as legally possible the economic purposes of
the invalid provision.
(3) Notwithstanding that this Agreement shall be governed by and construed
in accordance with German law, any terms used in Section 11 reflecting
terms used in U.S. federal securities laws shall be interpreted
according to the meanings attributed to them in such laws.
16. GOVERNING LAW; PLACE OF PERFORMANCE; REMEDIES CUMULATIVE
(1) This Agreement shall in all respects be governed by and construed in
accordance with the laws of the Germany.
(2) Place of performance for the obligations of the Issuer shall be
Karlsruhe, Germany.
17. PLACE OF JURISDICTION
Any action or other legal proceedings arising out of or in connection with this
Agreement shall be brought exclusively in the courts in Frankfurt am Main,
Germany.
18. ASSIGNMENT
(1) The Issuer may not assign its rights or transfer its obligations
hereunder in whole or in part. Any purported such assignment or
transfer shall be void.
(2) Each Manager may only assign or transfer its rights or obligations
hereunder with the prior written consent of the Issuer.
16
19. COUNTERPARTS
This Agreement is executed in o counterparts in the English language. One
executed counterpart each is issued to the Issuer and to each of the Managers.
Each executed counterpart shall be an original.
This Agreement has been entered into on the date stated at the beginning.
17
LANDESKREDITBANK BADEN-WURTTEMBERG - FORDERBANK
By: By:
---------------------------- ----------------------------
o
By:
----------------------------
o
o
o
o
By:
----------------------------
o
By virtue of powers of attorney
18
SCHEDULE 1
----------
TERMS AND CONDITIONS OF NOTES
19
SCHEDULE 2[A][B]
----------------
FORM OF [EURO] [DTC] GLOBAL CERTIFICATE
20
[SCHEDULE 3]
------------
[MANAGER'S COMMITMENTS]
[ALLOCATION OF NOTES]
21
SCHEDULE [4]
------------
SELLING RESTRICTIONS
1. General
Each Manager agrees that it will comply with all applicable securities
laws and regulations in force in any jurisdiction in which it
purchases, offers, sells or delivers Notes or possesses or distributes
the Prospectus and will obtain any consent, approval or permission
required by it for the purchase, offer, sale or delivery by it of Notes
under the laws and regulations in force in any jurisdiction to which it
is subject or in which it makes such purchases, offers, sales or
deliveries and neither the Issuer nor any other Manager shall have any
responsibility therefore.
2. Germany
Each Manager agrees not to offer or sell Notes in the Federal Republic
of Germany other than in compliance with the Securities Selling
Prospectus Act of Germany (Wertpapier-Verkaufsprospektgesetz) of
September 9, 1998 (as amended), or any other laws applicable in the
Federal Republic of Germany governing the issue, offering and sale of
securities. The Manager acknowledges the fact that no selling
prospectus (Verkaufsprospekt) with the meaning of the Securities
Selling Prospectus Act of Germany has been or will be registered or
published in the Federal Republic of Germany.
3. United Kingdom
Each Manager represents and agrees that:
(i) it has not offered or sold and, prior to the expiry of a
period of six months from the Closing Date, will not offer or
sell any such Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995
(as amended) or the Financial Services and Markets Act 2000
(the "FSMA");
(ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the
meaning of section 21 of the FSMA) received by it in
connection with the issue or sale of the Notes in
circumstances in which section 21(1) of the FSMA does not
apply to the Issuer; and
(iii) it has complied and will comply with all applicable provisions
of Part VI of the FSMA with respect to anything done by it in
relation to such Notes in, from or otherwise involving the
United Kingdom.
4. Japan
Each Manager acknowledges that the Notes have not been and will not be
registered under the Securities and Exchange Law of Japan (the
"Securities and Exchange Law"). Each Manager represents and agrees that
it will not offer or sell any Notes,
22
directly or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person resident
in Japan, including any corporation or other entity organized under
the laws of Japan), or to other for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan except only pursuant to
an exemption from the registration requirements of, and otherwise in
compliance with the Securities and Exchange Law and any other
applicable laws, regulations and ministerial guidelines of Japan.
5. France
The Issuer and each Manager represent and agree that, in connection
with their initial distribution, it has not offered or sold, and will
not offer or sell, directly or indirectly, Notes to the public in
France, and has not distributed or caused to be distributed to the
public in France the Prospectus or any other offering material relating
to the Notes, and that such offers, sales and distributions have been
and shall be made in France only to (i) qualified investors
(investisseurs qualifies).
23
SCHEDULE [5]
------------
DOCUMENTATION LIST
1. A certified copy of the Act Concerning Landeskreditbank
Baden-Wurttemberg - Forderbank, as amended (Gesetz uber die
Landeskreditbank Baden-Wurttemberg - Forderbank) and the Statutes
(Satzung) of the Issuer.
2. A certified copy of an extract of most recent date from the Commercial
Register pertaining to the Issuer, certified by such Commercial
Register.
3. A list of the names, titles and specimen signatures of the persons
authorized on behalf of the Issuer:
(a) to sign the Subscription Agreement;
(b) to sign the Supplemental Agency Agreement;
(c) to sign the Notes;
(d) to sign all notices and other documents to be delivered in
relation to the Subscription Agreement; and
(e) to represent the Issuer and to take any action on behalf of
the Issuer, in connection with the Subscription Agreement:
4. Conformed copies of the Registration Statement and copies of the
Prospectus in the number reasonably requested by the Manager.
All such documents shall be in the German or English language.
24