EXHIBIT 1.1
JOHN DEERE CAPITAL CORPORATION
Medium-Term Notes, Series D
Due from 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
October 19, 2000
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Dear Sirs:
John Deere Capital Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Goldman, Sachs & Co. (each, an
"Agent", and collectively, the "Agents"), with respect to the
issue and sale by the Company of its Medium-Term Notes, Series D,
Due from 9 Months to 30 Years from Date of Issue described herein
(the "Notes"). The Notes may be issued as senior indebtedness
(the "Senior Notes") or as subordinated indebtedness (the
"Subordinated Notes") of the Company. The Senior Notes are to be
issued as a series under an indenture, dated as of 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 Trust Company,
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. $3,450,000,000 aggregate principal amount (or its
equivalent, based upon the applicable exchange rate at the time
of the applicable trade date, in one or more foreign currencies
or currency units or composite currencies designated by the
Company) of Notes through or to one or more of the Agents
pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may
be sold through or to one or more of the Agents pursuant to the
terms of this Agreement, all as though the issuance of such Notes
were authorized as of the date hereof.
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This Agreement provides both for the sale of Notes by the Company
through the Agents directly to purchasers, in which case the
Agents will act as agents of the Company in soliciting purchases
of the Notes, and (as may from time to time be agreed to by the
Company and an Agent) to an Agent as principal for resale to
investors and other purchasers. In addition, notwithstanding
anything herein to the contrary, the Company may, without the
consent of the Agents, solicit or accept offers to purchase Notes
from any person for their account ("direct placements"). It is
understood that the Agents are not acting as agents of the
Company in direct placements.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 333-39012 )
which also acts as a post-effective amendment to the registration
statement No. 333-68355, 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. 333-39012) which also acts as a post-
effective amendment to the registration statement No. 333-68355,
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 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
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counterpart to this Agreement, whereupon from and after the date
of such execution, the term "Agent" shall include such person or
persons and such person or persons shall be subject to the terms
and conditions stated herein.
(b) REASONABLE BEST EFFORTS SOLICITATIONS; RIGHT TO REJECT
OFFERS. Upon receipt of instructions from the Company, each
Agent will use its reasonable best efforts to solicit purchases
of such principal amount of Notes as the Company and such Agent
shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Company from time to time. Each
Agent will communicate to the Company, orally or in writing, each
offer to purchase Notes, other than those offers rejected by such
Agent. Each Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes,
in whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company
may accept or reject any proposed purchase of Notes, in whole or
in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting purchases of Notes on behalf of the Company, each
Agent shall act solely as agent for the Company and not as
principal. Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and
accepted by the Company. Such Agent shall not have any liability
to the Company in the event that any such purchase is not
consummated for any reason; provided, however, that the foregoing
shall not relieve any Agent for any liability such Agent may have
from a breach of its obligations hereunder. The Agents shall not
have any obligation to purchase Notes from the Company as
principal, but an Agent may agree from time to time to purchase
Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made pursuant to a Terms Agreement in
accordance with the provisions of Section 3(b) hereof.
(d) RELIANCE. The Company and the Agents agree that any Notes,
the placement of which an Agent arranges, shall be placed by such
Agent, and any Notes purchased by an Agent shall be purchased, in
reliance upon the representations, warranties, covenants and
agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of
an offer for the purchase of Notes (whether through such Agent as
agent or to such Agent as principal), as of the date of each
delivery of Notes (whether through such Agent as agent or to such
Agent as principal) (the date of each such delivery to an Agent
as principal being hereafter referred to as a "Settlement Date"),
and as of the
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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 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
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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.
(x) The Notes, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the applicable
Indenture, will be excluded or exempted from the provisions of
the Commodity Exchange Act.
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(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 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
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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
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
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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 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
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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).
(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
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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 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
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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 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
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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 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 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, 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
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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 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
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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 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.
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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.
(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
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(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 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
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
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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 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.
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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 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.
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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 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
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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 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;
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(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 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
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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
Telecopier: (309) 765-5021
If to Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
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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 Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopier: (212) 358-8680
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 person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
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.
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Very truly yours,
JOHN DEERE CAPITAL CORPORATION
By: /s/ M. P. ORR
-----------------------------------
Name: M. P. Orr
Title: Senior Vice President
CONFIRMED AND ACCEPTED, as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /S/ SCOTT PRIMROSE
--------------------------------
/s/ GOLDMAN, SACHS & CO.
--------------------------------
(Goldman, Sachs & Co.)
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EXHIBIT A
As compensation for the services of an Agent hereunder, the
Company shall pay such Agent (on a discount basis or by other
means agreed to by the Company and such Agent) a commission for
the sale by such Agent as agent of a Senior Note equal to the
price to the public of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months but less than 1 year .125%
From 1 year but less than 18 months .150%
From 18 months but less than 2 years .200%
From 2 years but less than 3 years .250%
From 3 years but less than 4 years .350%
From 4 years but less than 5 years .450%
From 5 years but less than 6 years .500%
From 6 years but less than 7 years .550%
From 7 years but less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .650%
From 20 years to 30 years .675%
The above Schedule shall also apply to commissions paid in
connection with sales of Subordinated Notes unless otherwise
agreed to by the Company and all of the Agents.
Unless otherwise specified in the applicable Terms Agreement, the
discount payable to an Agent shall be determined on the basis of
the commission schedule set forth above.
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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.
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