Exhibit 1.1
LANDESKREDITBANK BADEN-WURTTEMBERG - FORDERBANK
U.S.$ o o% Notes due o
SUBSCRIPTION AGREEMENT
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January o, 2005
SUBSCRIPTION AGREEMENT dated January o, 2005
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) Citigroup Global Markets Limited (the "Manager").
The parties hereby record the arrangements between them in respect of an issue
of U.S.$ o o% Notes due o of the Issuer (the "Notes").
1. AGREEMENT TO ISSUE; THE NOTES; THE AGREEMENTS
(1) The Issuer agrees to issue the Notes on January o, 2005 or on such later
date not being later than January o, 2005 as the Issuer and the Manager
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 U.S.$ 1,000 each and will
be represented by one or more permanent global certificates without
interest coupons (the "Global Certificate"). The Global Certificate will be
kept in custody by Deutsche Bank Trust Company Americas, a New York
banking corporation ("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 Global Certificate will be
in registered form in the name of Cede & Co., as nominee of DTC, recorded
in a register (the "Register") kept by the Registrar (as defined below),
and will represent the Notes maintained in custody for financial
institutions that are participants in DTC. The Global Certificate 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 is entering
into the agency agreement dated January o, 2005 (the "Agency Agreement")
with DBTCA, as registrar for the Issuer (the "Registrar") and as paying
agent for the Issuer (the "Paying Agent").
This Agreement and the Agency Agreement are together referred to herein as
the "Agreements".
2. PURCHASE
The Manager agrees to purchase the Notes on the Closing Date at the issue price
of o% of the principal amount of the Notes (the "Issue Price").
3. DISCLOSURE
The Issuer confirms (i) that 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 (file number 33-o) on Schedule B under the Securities Act, including a
prospectus dated January o, 2005, and relating to
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the Notes, (ii) that it has filed one or more amendment(s) to such registration
statement and (iii) that such registration statement, as amended, has been
declared effective by the Commission. The Issuer will next file with the
Commission a final prospectus in accordance with Rules 430A and 424(b) under the
Securities Act. Such registration statement, as amended at the date hereof,
including the information deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act and the
exhibits thereto, is herein referred to as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Notes is hereinafter
referred to as the "Prospectus".
The Registration Statement and the Prospectus are together referred to as the
"Disclosure Documents".
The Issuer hereby authorizes the Manager to distribute copies of the Disclosure
Documents in connection with the offering and sale of the Notes.
The Issuer and the Manager 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 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
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 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 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
U.S.$ o in principal amount of the Notes.
(2) As between the Issuer and the Manager, any loss resulting from
stabilization shall be borne, and any profit arising therefrom shall be
retained, by the Manager.
5. DISTRIBUTION IN THE UNITED STATES
The Manager agrees to notify in writing Shearman & Sterling LLP, as its counsel,
of the U.S. Sales Amount applicable to it seven calendar days after the Closing
Date. The Manager agrees to cause Shearman & Sterling LLP to promptly thereafter
report the aggregate U.S. Sales Amounts applicable to it to the Issuer. For
purposes of the foregoing, the "U.S. Sales Amount" applicable to the 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.
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6. SELLING RESTRICTIONS
(1) The Manager agrees with the Issuer to be bound by the terms and provisions
set out in Schedule 3.
(2) The 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) The Manager agrees to indemnify the Issuer and its directors (or persons
performing similar functions), officers and employees, and any affiliate of
the Issuer, 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 3 and in subsection (2) hereof.
7. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants to the Manager as of the date hereof and as
of the Closing Date as follows:
(1) the Issuer is a public law institution (rechtsfahige Anstalt des
offentlichen Rechts) under the laws of the State of Baden-Wurttemberg;
(2) all the capital of the Issuer is held by the State of Baden-Wurttemberg;
(3) 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;
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(4) (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
Registration Statement and the Prospectus 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 the Manager furnished to the Issuer by such Manager
expressly for use therein;
(5) 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 terms, subject, in each case, to the laws affecting the rights
of creditors generally, in particular laws of insolvency(1);
(6) the Notes, upon due execution, issue and delivery in accordance with the
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);
(7) 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 infringe 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;
(8) 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;
(9) 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;
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(1) Pursuant to ss. 00 Xxxxxxxxxxxxxxxx (Xxxxxxxxxx Xxx) 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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(10) 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 German
Securities Selling Prospectus Act - Wertpapier-Verkaufsprospektgesetz);
(11) the persons named in the list referred to in paragraph 4 of Schedule 4
hereto are authorized to represent the Issuer and to take any action on
behalf of it with binding effect;
(12) 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;
(13) 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 Xxxxxxxx Xxx
0000, as amended (the "Exchange Act"), in connection with the issue of the
Notes;
(14) 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) equally with all other unsecured and
unsubordinated obligations of the Issuer, from time to time outstanding;
and
(15) the Issuer has been informed of the existence of the FSA stabilizing
guidance contained in section MAR 2 Annex 2G of the FSA Handbook.
8. AGREEMENTS OF THE ISSUER
(1) The Issuer agrees to file the Prospectus with the Commission within the
time periods specified by Rule 424 under the Securities Act.
(2) The Issuer agrees to deliver, at the expense of the Issuer, to the Manager
and to the Manager's U.S. counsel, a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto at any time six
months after the date of filling, in each case without exhibits.
(3) Before filing any amendment or supplement to the Registration Statement or
the Prospectus applicable to the Notes, the Issuer will furnish to the
Manager a copy of the proposed amendment or supplement for review and will
not file any such proposed amendment or supplement to which the Manager
promptly and reasonably objects.
(4) The Issuer agrees to advise the Manager promptly, and to confirm such
advice in writing (i) 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, (ii)
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 to the extent affecting the
Notes and (iii) 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 the Issuer further agrees 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.
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(5) If, during such period of time within six months after the first date of
the public offering of the Notes, as in the opinion of U.S. counsel for the
Manager provided to the Issuer, a prospectus is required by law to be
delivered in connection with sales by the Manager or any 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, the Issuer will forthwith notify the Manager and, upon
request of the Manager, prepare and furnish, at its own expense, to the
Manager and to the dealers (whose names and addresses the Manager will
furnish to the Issuer) to which Notes may have been sold by the 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 of the date of
such amendment or supplement will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus, as of the date of such amendment or supplement, will comply
with law; and in case the 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 Manager but at its expense, the
Issuer will prepare and furnish to the Manager an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities Act.
(6) The Issuer agrees to make generally available to holders of the Notes and
to the Manager 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) The Issuer agrees to endeavor to qualify the Notes for offer and sale under
the securities or blue sky laws of such jurisdictions as the Manager 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 Manager)
reasonably incurred and arising from actions previously agreed between the
Issuer and the Manager 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 Manager 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.
(8) The Issuer shall bear and pay all stamp and other taxes and duties
(including interest and penalties) payable pursuant to the laws applicable
in Germany on or in connection with the issue and purchase by the Manager
of the Notes or the execution or delivery of the Agreements.
(9) The Issuer shall forthwith notify the Manager if, at any time prior to
payment of the net subscription amount (as set out in Section 11) 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 Manager 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
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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 Manager 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 Manager on the Closing Date of legal opinions dated the
Closing Date, in the form agreed with the Manager, from:
(i) the Legal Department of the Issuer as to the laws of Germany; and
(ii) Shearman & Sterling LLP, legal advisers to the Manager in the
United States and in Germany;
(c) receipt by the Manager 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 by the Registrar two days prior to the Closing Date of the
Global Certificate duly executed on behalf of the Issuer for
authentication and delivery on the Closing Date of the 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 Manager not later than one business day in Frankfurt
before the Closing Date of the documents listed in Schedule 4;
(f) receipt by the Manager on the date of this Agreement and the Closing
Date of letters, in the form agreed with the Manager, 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 Manager of a copy of the Agency Agreement as executed,
delivered and exchanged by the respective parties thereto.
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(2) The Manager may, at its discretion and upon terms as it deem 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 Manager shall
pay, or cause payment of, the net subscription amount of U.S.$o (being the Issue
Price pursuant to Section 2, less the commission pursuant to Section 12(1) and
the expenses lump sum specified in Section 12(2)) in immediately available funds
to such account as the Issuer may specify to the Manager not later than three
days before the Closing Date, such payment to be made against delivery of the
Global Certificate representing the Notes duly authenticated on behalf of the
Registrar.
11. INDEMNITY
(1) The Issuer agrees to indemnify the Manager and its directors, officers and
employees and each person, if any, who controls the Manager within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and any affiliate of the 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 the Manager expressly for use therein; provided that the
foregoing indemnity with respect to any preliminary prospectus supplement
shall not inure to the benefit of the Manager (or to the benefit of any
person controlling the 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) The Manager agrees 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 the Manager, but only with reference to
information furnished to the Issuer by the 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
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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 the Manager shall be designated in writing by the Manager 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 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 Manager 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 Manager 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
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Manager 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 Manager. 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 Manager, 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, the
Manager shall not 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.
(6) 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 the Manager
or any person controlling the 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 Manager 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
Manager to purchase the Notes. Such payment will be made by means of
deduction by the Manager 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 Paying Agent, and (iv) all expenses
in connection with the Agreements, the Disclosure Documents and any
amendments or supplements thereto, and (v) the expenses in connection
with the issue, authentication, packaging and initial delivery of the
Notes and the preparation of the Global Notes; and
(b) to pay to the Manager a lump sum in the aggregate amount of
U.S.$300,000 (together with any value added tax or other tax thereon)
for expenses incured by the Manager in connection with the offering of
the Notes.
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(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
Manager 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 Manager 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 Manager,
(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
(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.
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 telefax,
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:
(a) If to the Issuer, to:
Landeskreditbank Baden-Wurttemberg - Forderbank
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxxxxxx
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Telephone: x00 000 000-0000 or -3916
Fax: x00 000 000-0000
Attention: Bereich Treasury / Abwicklung
(b) If to the Manager, to:
Citibank Global Markets Limited
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Telephone: 00 00 0000 0000
Fax: 00 00 0000 0000
Attention: Debt Syndicate Desk
15. THE SCHEDULES; SEVERABILITY
(1) Schedules 1 to 4 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.
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) The Manager may only assign or transfer its rights or obligations hereunder
with the prior written consent of the Issuer.
19. COUNTERPARTS
This Agreement is executed in two counterparts in the English language. One
executed counterpart each is issued to the Issuer and to the Manager. Each
executed counterpart shall be an original.
This Agreement has been entered into on the date stated at the beginning.
LANDESKREDITBANK BADEN-WURTTEMBERG - FORDERBANK
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By:________________________ By:________________________
CITIGROUP GLOBAL MARKETS LIMITED
By:________________________
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SCHEDULE 1
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TERMS AND CONDITIONS OF NOTES
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SCHEDULE 2
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FORM OF GLOBAL NOTE
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SCHEDULE 3
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SELLING RESTRICTIONS
1. General
The 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 the Issuer shall have no
responsibility therefore.
2. Germany
The Manager agrees not to offer or sell Notes in Germany other than in
compliance with the Securities Selling Prospectus Act of the Federal
Republic of Germany (Wertpapier-Verkaufsprospektgesetz) of September 9,
1998 (as amended), or any other laws applicable in Germany governing the
issue, offering and sale of securities. The Manager acknowledges the fact
that no selling prospectus (Verkaufsprospekt) within the meaning of the
Securities Selling Prospectus Act has been or will be registered or
published in the Federal Republic of Germany.
3. United Kingdom
The 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 Xxx 0000 (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.
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SCHEDULE 4
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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 certified copy of the resolution of the board of management of the
Issuer, passed in connection with the offering and issuance of the Notes.
4. 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 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:
5. 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.
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