EXHIBIT 1
Caterpillar Financial Services Corporation
$4,000,000,000
Debt Securities
Distribution Agreement
----------------------
_____________ ___, 1999
[Agent name]
[address]
[Agent name]
[address]
Dear Sirs:
Caterpillar Financial Services Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell its debt securities (the
"Securities") in an aggregate principal amount of up to $4,000,000,000 or its
equivalent in foreign currencies or currency units and agrees with [names of
agents] (each individually an "Agent", and collectively the "Agents") as set
forth herein. Subject to the terms and conditions stated herein, the Company
hereby (i) appoints each of the Agents as an agent of the Company for the
purpose of soliciting offers to purchase the Securities from the Company and
(ii) agrees that, except as otherwise contemplated herein, whenever it
determines to sell Securities directly to any of the Agents as principal for
resale to others, it will enter into a separate agreement, which may be a
written agreement, substantially in the form of Annex I hereto or an oral
agreement confirmed in writing by such Agent (each a "Terms Agreement") relating
to such sale in accordance with Section 2(b) hereof.
The terms and rights of the Securities shall be as specified in or
established pursuant to the indenture, dated as of April 15, 1985, as
supplemented to the date hereof (the "Indenture"), between the Company and U.S.
Bank Trust National Association, as successor Trustee (the "Trustee"). The
Securities shall have the maturity ranges, annual interest rates, redemption
provisions and other terms set forth in the Prospectus referred to below as it
may be supplemented from time to time. The Securities will be issued, and the
terms thereof established, from time to time by the Company in accordance with
the Indenture and the Administrative Procedure attached hereto as Annex II or as
otherwise agreed upon and, if applicable, will be specified in a related Terms
Agreement.
1. The Company represents and warrants to, and agrees with, you that:
(a) A registration statement on Form S-3 (Registration No. 333-
[________]) in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission") in the form heretofore delivered
or to be delivered to you, excluding exhibits to such registration
statement, but including all documents incorporated by reference in the
prospectus included therein (except for any statements in such documents
which are deemed under Rule 412 under the Securities Act of 1933, as
amended (the "Act"), not to be incorporated by reference in such
Prospectus), and such registration statement in such form has been declared
effective by the Commission and no stop order suspending the effectiveness
of such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement being hereinafter called
a "Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-1, each as
amended at the time such part became effective, being hereinafter
collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as each
time amended or supplemented (including any applicable supplement to the
Prospectus that sets forth the terms of a particular issue of the
Securities (a "Pricing Supplement")) to relate to Securities sold pursuant
to this Agreement, in the form in which it is filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the Act, including
any documents incorporated therein by reference as of the date of such
filing or mailing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained, in the case of
a registration statement which became effective under the Act, 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, and, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, in each case after excluding any statement
in any such document which does not constitute part of the Registration
Statement or the Prospectus pursuant to Rule 412 under the Act; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain, in the case
of a registration statement which becomes effective under the Act, an
untrue statement of a material fact or omit to state a material
2
fact required to be stated therein or necessary to make the statements
therein not misleading and, in the case of other documents which are filed
under the Act or the Exchange Act, an 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 are made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by you
expressly for use in the Prospectus as amended or supplemented to relate to
a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by you expressly for use in the Prospectus as
amended or supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its consolidated business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material change in the capital stock
or any material increase in the consolidated long-term debt of the Company
or any of its subsidiaries (other than debt incurred in the ordinary course
pursuant to the Company's medium-term note program) or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) 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 corporate power and authority to own its properties and conduct its
business as described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
substantial property;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable and all of such shares are owned directly or indirectly
by Caterpillar Inc., a Delaware corporation ("Caterpillar"), free and clear
of all liens, encumbrances, security interests or claims;
3
(g) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, such
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; the Indenture
has been duly authorized and qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Securities will conform to the descriptions
thereof in the Prospectus as amended or supplemented to relate to the
Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or Caterpillar is a party or by which
the Company or Caterpillar is bound or to which any of the property or
assets of the Company or Caterpillar is subject, including the Support
Agreement, dated as of December 21, 1984, between the Company and
Caterpillar, as amended, nor will such action result in any violation of
the provisions of the Certificate of Incorporation, as amended, or By-Laws
of the Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
Caterpillar or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the solicitation of offers to
purchase Securities and the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, any Terms Agreement or the Indenture, except such as have been,
or will have been prior to the Closing Date (as defined in Section 3
hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
solicitation by you of offers to purchase the Securities from the Company
and with purchases of the Securities by you as principals, as the case may
be, both in the manner contemplated hereby; and
(i) Except as set forth in the Prospectus, there is no action,
suit or proceeding to which the Company or any of its subsidiaries is a
party pending before or brought by any court, arbitrator or governmental
body, nor is any such action, suit or proceeding to the knowledge of the
Company threatened, in respect of which, in the judgment of the Company,
there is any reasonable likelihood that it will result in a material
adverse change in the condition (financial or other) or business, or
materially affect the properties or assets, of the Company and its
subsidiaries as a whole.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions, herein set forth, each of the Agents hereby
severally agrees, as an agent of the Company, to use its reasonable best efforts
to solicit offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
4
The Company reserves the right, in its sole discretion, to instruct
any or all of the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. Upon
receipt of instructions from the Company, the Agent or Agents receiving such
instructions will forthwith suspend solicitation of offers to purchase
Securities from the Company until such time as the Company has advised such
Agent or Agents that such solicitation may be resumed.
The Company agrees to pay the presenting Agent (or jointly to two or
more Agents if such presentation is jointly made) a commission, at the time of
settlement of each sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following percentage
of the principal amount of such Security sold:
Fee as a Percentage
Range of Maturities of Principal Amount
------------------- -------------------
From 9 months to less than 12 months
From 12 months to less than 18 months
From 18 months to less than 24 months
From 24 months to less than 36 months
From 36 months to less than 48 months
From 48 months to less than 60 months
From 60 months to less than 72 months
From 72 months to less than 84 months
From 84 months to less than 96 months
From 96 months to less than 108 months
From 108 months to less than 120 months
From 120 months to less than 180 months
From 180 months to less than 240 months
From 240 months to 360 months
Where the term of the Security is more than 30 years, the commission
shall be as agreed upon between the Company and the Agent at the time of sale.
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Securities other than those rejected by such Agent. The
Company shall have the sole right to accept offers to purchase Securities and
may reject any proposed purchase of Securities as a whole or in part. Each of
the Agents shall have the right, in its discretion reasonably exercised, to
reject any offer received by it to purchase Securities, as a whole or in part,
and any such rejection by an Agent shall not be deemed a breach of its
agreements contained herein.
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. Each Terms
Agreement will take the form of either (i) a written agreement between you and
the Company which shall be substantially in the form of Annex I hereto or (ii)
an oral agreement between you and the Company confirmed in writing by you to the
Company. Any Agent's commitment to purchase Securities pursuant to any Terms
5
Agreement or otherwise shall be deemed to have been made on the basis
of the representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth; provided
that for purposes of any Terms Agreement all references in this Agreement
to "you" or "the Agents" shall be deemed to refer only to the Agent or
Agents party to such Terms Agreement. Each Terms Agreement shall include a
specification of the principal amount of Securities to be purchased by an
Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the
Securities, and the time (each a "Time of Delivery") and place of delivery
of and payment for such Securities. Such Terms Agreement shall also specify
any requirements for officers' certificates, opinions of counsel and
accountants' letters pursuant to Section 4 hereof and any additional
agreements pursuant to Section 5 hereof. In connection with any purchase of
Securities by an Agent as principal, such Agent may utilize dealer groups
and reallow commissions and discounts.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue
and delivery of such Securities and payment thereof shall be as set forth
in the Administrative Procedure. For each such sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement, the
Company agrees to pay such agent a commission (or grant an equivalent
discount) as provided in Section 2(a) hereof and in accordance with the
schedule set forth therein.
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase, and purchases by any
Agent as principal of, Securities, and the payment in each case therefor,
are set forth in the Administrative Procedure attached hereto as Annex II
(the "Procedure"). The provisions of the Procedure shall apply to all
transactions contemplated hereunder other than those made pursuant to a
Terms Agreement. Each of the Agents and the Company agrees to perform the
respective duties and obligations specifically provided to be performed by
each of them in the Procedure as it may be amended from time to time by
written agreement between you and the Company.
(d) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such
Security in, or to residents of, the country issuing such currency (or if
such Security is denominated in a composite currency, in any country
issuing a currency comprising a portion of such composite currency), except
as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof shall be delivered at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 11:00 a.m., New York City time, on the date
of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later
than the day prior to the date on which Securities are first sold
hereunder, such time and date being herein called the "Closing Date."
4. The Company covenants and agrees with you:
6
(a) To make no amendment or supplement to the Registration Statement
or the Prospectus prior to the Closing Date or after the date of any Terms
Agreement and prior to the related Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof unless in the
opinion of counsel to the Company such amendment or supplement is required
by law; to make no such amendment or supplement, other than any Pricing
Supplement, at any other time prior to having afforded you a reasonable
opportunity to review it; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period to advise you, promptly
after it receives notice thereof of the time when any amendment to the
Registration Statement has been filed or become effective or any supplement
to the Prospectus or any amended Prospectus (other than any Pricing
Supplement relating to Securities not purchased through or by such Agent)
has been filed with, or transmitted for filing to, the Commission, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amendment or
supplement of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as you reasonably
may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish you with copies of the Registration Statement and each
amendment thereto, and with copies of the Prospectus and each amendment or
supplement thereto, other than any Pricing Supplement (except as provided
in the Procedure), in the form in which it is filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the Act, both in
such quantities as you may reasonably request from time to time; and, if
the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities (including Securities purchased from the
Company by any Agent as principal) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify you and request you to suspend
solicitation of offers to purchase Securities from the Company, in your
capacity as agents of the Company and, if so notified, you shall forthwith
cease such solicitations; and if
7
the Company shall decide to amend or supplement the Registration Statement
or the Prospectus as then amended or supplemented, other than by any
Pricing Supplement (except as provided in the Procedure), to so advise you
promptly by telephone (with confirmation in writing) and to prepare and
cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect such
compliance; provided, however, that if during such same period any Agent
continues to own Securities purchased from the Company by such Agent as
principal, the Company shall promptly prepare and file with the Commission
such an amendment or supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than 90 days after the close of the
period covered thereby, an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158) and covering each
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date of the Registration
Statement or a post-effective amendment thereto (within the meaning of Rule
158);
(e) During the period when this Agreement is in effect, to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to the Commission);
(f) That, from the date of any Terms Agreement or other agreement by
such Agent to purchase Securities as principal and continuing to and
including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company by the
Agent or Agents party to such Terms Agreement, and (ii) the related Time of
Delivery, the Company will not, without the prior written consent of such
Agent or Agents, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which mature more than nine months after
such Time of Delivery and which are substantially similar to the
Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each sale of Securities to an Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation to the
Agent or Agents which are parties to such Terms Agreement that the
representations and warranties of the Company contained in or made pursuant
to this Agreement are true and correct as of the date of such acceptance or
of such Terms Agreement as though made at and as of such time, and an
undertaking that such representations and warranties will be true and
correct as of the settlement date for the Securities relating to such
acceptance and as of the Time of Delivery relating to such sale, as though
made at and as of each such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities);
8
(h) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
relating solely to a change in the terms of the Securities and other than
by any Pricing Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and each
time, if so indicated in the applicable Terms Agreement, the Company sells
Securities to an Agent as principal, the Company shall furnish or cause to
be furnished forthwith to you a certificate of officers of the Company
satisfactory to you, dated the date of such supplement, amendment,
incorporation or Time of Delivery related to such sale, in form
satisfactory to you in your reasonable judgment, to the effect that the
statements contained in the certificate referred to in Section 6(f) hereof
which were last furnished to you are true and correct at such date, as
though made at and as of such date (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,
certificates of the same tenor as the certificates referred to in said
Section 6(f) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
relating solely to a change in the terms of the Securities and other than
by any Pricing Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and each
time, if so indicated in the applicable Terms Agreement, the Company sells
Securities to an Agent as principal, the Company shall furnish or cause to
be furnished forthwith to you a written opinion of counsel for the Company,
or other counsel satisfactory to you in your reasonable judgment, dated the
date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, in form satisfactory to you in your reasonable
judgment, to the effect that you may rely on the opinion referred to in
Section 6(c) hereof which was last furnished to you to the same extent as
though it were 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
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion referred to in Section 6(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date;
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the
Act or the Exchange Act is incorporated by reference into the Prospectus,
in either case to set forth financial information included in or derived
from the Company's consolidated financial statements, or, if so indicated
in the applicable Terms Agreement, each time the Company sells Securities
to an Agent as principal, the Company shall cause its independent public
accountants forthwith to furnish you a letter, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such
sale, in form satisfactory to you in your reasonable judgment, of the same
tenor as the letter referred to in Section 6(d) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, 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, to the
extent such financial statements and other information are available as of
a date not more than five business days prior to the date of such letter;
provided, however, that where such amendment, supplement or
9
document incorporated by reference only sets forth unaudited quarterly
financial information, the scope of such letter may be limited to relate to
such unaudited financial information unless any other accounting or
financial information included or incorporated by reference therein is of
such a character that, in your reasonable judgment, such letter should
address such other information;
(k) That, in the event the Company determines to solicit offers to
purchase and sell the Securities to or through agents other than the
Agents, the Company shall provide the Agents prompt notice of such
determination; and
(l) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Procedure, any condition set forth in
Section 6(a), 6(e) or 6(g) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective
judgments of an Agent with respect to certain matters referred to in such
Sections 6(a), 6(e) and 6(g), and that such Agent shall have no duty or
obligation whatsoever to exercise the judgment permitted under such
Sections 6(a), 6(e) and 6(g) on behalf of any such person).
5. Unless otherwise provided in any applicable Terms Agreement, the
Company covenants and agrees with you that the Company will pay or cause to
be paid the following: (i) the fees and expenses of the Company's counsel
and accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, any Preliminary Prospectus and
the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to you; (ii) the fees and expenses of your
counsel in connection with the transactions contemplated hereunder; (iii)
the cost of printing or reproducing this Agreement, any Terms Agreement,
any Indenture, any Blue Sky and Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of
the Securities; (iv) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 4(b) hereof, including fees and disbursements of your
counsel in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (v) any fees charged by security
rating services for rating the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; (viii) the fees and
expenses of any Depositary (as defined in the Indenture) and any nominees
thereof in connection with the Securities; (ix) any advertising expenses
connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved by the
Company; and (x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided
for in this Section. Each Agent shall pay all other fees and expenses
incurred by such Agent.
6. The obligations of each Agent, as agent of the Company, to solicit
offers to purchase the Securities and the obligation of each Agent to
purchase Securities as principal pursuant to any Terms Agreement or
otherwise, shall in each case be subject, in such Agent's reasonable
discretion, to the condition that all representations and warranties and
other
10
statements of the Company herein are true and correct at and as of the Closing
Date, the date of each such solicitation, any settlement date related to the
acceptance of such an offer, and each Time of Delivery, the condition that the
Company shall have performed all of its obligations hereunder theretofore in
each case to be performed and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Your counsel shall have furnished to you such opinion or
opinions, dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Indenture, the Securities, the Registration
Statement, the Prospectus as amended or supplemented and other related matters
as you may reasonably request, and such counsel shall have received such papers
and information as you may reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to you shall have furnished
to you their written opinion, dated the Closing Date or any applicable date
referred to in Section 4(i), as the case may be, in form and substance
satisfactory to you, to the effect that:
(i) 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 corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company's authorized capital stock is as set forth in
the Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or any
of its consolidated subsidiaries which in such counsel's opinion would be
likely to result in a judgment or decree having a material adverse effect
on the business or financial position of the Company and its subsidiaries
as a whole or be required to be disclosed in the Registration Statement
which is not disclosed and accurately summarized in the Prospectus;
(iv) This Agreement (and any applicable Terms Agreement) has been
duly authorized, executed and delivered by the Company;
(v) The Securities have been duly authorized and, when the terms
of any Securities have been established in accordance with the Indenture
and so as not to violate any applicable law or agreement or instrument then
binding on the Company and such Securities have been duly executed,
authenticated, issued and delivered by the Company, such Securities will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; and the Indenture conforms and the
Securities will conform in all material respects to the descriptions
thereof in the Prospectus;
11
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other
laws relating to or affecting creditors' rights generally, and to general
principles of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law; and the Indenture
has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any agreement or instrument known to such counsel to which
the Company or Caterpillar is a party or by which the Company or
Caterpillar is bound, and which conflicts, breaches and defaults, if any,
would individually or in the aggregate have a material adverse effect on
the business or financial position of the Company and its subsidiaries as a
whole; nor will such action result in any violation of the provisions of
the Certificate of Incorporation or the By-Laws of the Company or any
statute of the United States of America or the State of Delaware or any
rule or regulation thereunder (provided that no opinion need be expressed
in this paragraph as to compliance with the Act, the Trust Indenture Act,
the Exchange Act, the Commodity Exchange Act (and the rules and regulations
of the Commodity Futures Trading Commission thereunder) or the Delaware
Securities Act, or with the Bankruptcy Code of 1978, as amended, with
respect to any proceeding in which the Company is the debtor) or, to such
counsel's knowledge, any order of any court or governmental agency or body
of the United States of America or the State of Delaware; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Securities by the Company or the consummation by the Company of
the other transactions contemplated by this Agreement or any Terms
Agreement or the Indenture, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under Delaware
securities or Blue Sky laws in connection with the issue and sale of the
Securities;
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data therein, as to which such counsel need
express no opinion or belief), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Act or the Exchange Act and the rules and regulations of the Commission
thereunder; and
12
(ix) The Registration Statement, as of the date on which any part
thereof became effective, and the Prospectus, as of the date of such
opinion (other than the financial statements and related schedules and
other financial and statistical data therein, as to which such counsel need
express no opinion or belief) complied or complies as to form in all
material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder.
In addition, such counsel shall state that while they make no
representation that they have independently verified the accuracy or
completeness of the information contained in the documents incorporated by
reference in the Prospectus, they have no reason to believe that any of such
documents (other than the financial statements and related schedules and other
financial and statistical data therein, as to which they need express no opinion
or belief), when they were so filed, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading, in each case after excluding
any statement in any such documents which does not constitute part of the
Registration Statement or Prospectus pursuant to Rule 412 of Regulation C under
the 1933 Act. Further, such counsel shall state that while they make no
representation that they have independently verified the accuracy or
completeness of the information contained in the Registration Statement and the
Prospectus (other than the statements made in the Prospectus under the captions
"Description of Notes", "Supplemental Plan of Distribution" and "Description
of Debt Securities", in each case insofar as they relate to the provisions of
documents therein described), they have no reason to believe that any part of
the Registration Statement, insofar as relevant to the offering of the
Securities, as of the date on which such part became effective, or the
Prospectus, as of the date of such opinion (other than the financial statements
and related schedules and other financial and statistical data therein, as to
which they need express no opinion or belief), contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case after excluding any statement in any such document
which does not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the 1933 Act; and they do not know of
any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by reference or
described as required;
(d) At 11:00 a.m., New York City time, on the Closing Date or on any
applicable date referred to in Section 4(j), as the case may be, the
independent accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to you a letter, dated the
Closing Date or such applicable date, in form and substance satisfactory to
you, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained after the date of the latest audited financial statements included or
incorporated by reference in the Prospectus and (A) prior to the Closing Date,
any material loss or interference with its
13
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented through the date of this Agreement
and (B) prior to each Time of Delivery, any such material loss or
interference, otherwise than as set forth or contemplated in the Prospectus
as amended and supplemented through the date of each corresponding Terms
Agreement, and (ii) since the respective dates as of which information is
given in the Prospectus as amended or supplemented and (A) prior to the
Closing Date, there shall not have been any material change in the capital
stock or any material increase in the consolidated long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented through the date of this Agreement and (B) prior
to each Time of Delivery, there shall not have been any such material
change or development, otherwise than as set forth or contemplated in the
Prospectus as amended and supplemented through the date of each
corresponding Terms Agreement, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with your
solicitation of offers to purchase Securities from the Company or your
purchase of Securities from the Company as principal, as the case may be;
(f) The Company shall have furnished or caused to be furnished to you a
certificate of officers of the Company satisfactory to you, dated the
Closing Date or any applicable date referred to in Section 4(h), as the
case may be, as to the accuracy of the representations and warranties of
the Company herein at and as of the Closing Date or such applicable date,
as to the performance by the Company of all of its obligations hereunder to
be performed at or prior to the Closing Date or such applicable date, as to
the matters set forth in subsections (a) and (e) of this Section 6, and as
to such other matters as you may reasonably request; and
(g) During the period in which you are soliciting offers to purchase
Securities, including the period between the date of any Terms Agreement
and the related Time of Delivery, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; (iii) the outbreak or material
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iii) in your judgment (after consultation
with the Company) makes it impracticable or inadvisable to proceed with
your solicitation of offers to purchase Securities or your purchase of
Securities from the Company as principal, pursuant to the applicable Terms
Agreement or otherwise, as the case may be; or (iv) any downgrading in the
rating accorded the Company's debt securities by Xxxxx'x Investors Service,
Inc. or Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or a public announcement by either such organization that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities.
14
7. (a) The Company will indemnify and hold you harmless against any
losses, claims, damages or liabilities, joint or several, to which you may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus as amended or supplemented, and any other prospectus relating to the
Securities or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Agent for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by you expressly
for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall not be liable to any
Agent under the indemnity agreement in this subsection (a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability results from the fact that such Agent sold Securities 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) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such Agent.
(b) Each Agent will indemnify and hold harmless the Company against any
losses claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified
15
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
above in respect of any losses, claims, damages or liabilities (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, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the contributing Agent on the other from the
offering of the Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the indemnification provided
for in this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, or
if the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the contributing Agent on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the contributing Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the Company bear to the total
commissions or discounts received by the contributing Agent in respect thereof.
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 required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by the
contributing Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the contributing Agent agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) 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 subsection (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
purchased by
16
or through such Agent were sold 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(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 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 Act; and each Agent's
obligations under this Section 7 shall be in addition to any liability
which such Agent may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
8. In soliciting offers by others to purchase Securities from the Company,
each Agent is acting solely as an agent for the Company, and not as principal.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase for any reason is not consummated. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall hold each Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company.
9. The respective indemnities, agreements, representations, warranties and
other statements by you and the Company set forth in or pursuant to this
Agreement, shall remain in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any of you
or the Company or any of its officers or directors or any controlling person,
and shall survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase the Securities may be suspended or terminated at any time by
the Company as to any or all Agents or by any Agent insofar as this Agreement
relates to such Agent, upon the giving of written notice of such suspension or
termination to the other parties hereto. In the event of any such suspension or
termination, no party shall have any liability to the other party hereto, except
as provided in the third paragraph of Section 2(a), Section 5, Section 7,
Section 8 and Section 9 and except that, if at the time of such suspension or
termination, an offer for the purchase of Securities shall have been accepted by
the Company but the delivery of the Securities relating thereto to the purchaser
or his agent shall not yet have occurred, the Company shall have the obligations
provided in subsections (g), (h), (i) and (j) of Section 4.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to [name of agent], shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to [________________],
Facsimile Transmission No. [(___) _____-_______], Attention: [_____________];
and if to the Company shall be sufficient in all respects when delivered or
17
sent by facsimile transmission or registered mail to Caterpillar Financial
Services Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000,
Facsimile Transmission No. (000) 000-0000, Attention: General Counsel.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each of you and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any of you or the Company,
and your respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any of you shall be deemed a successor or assign by reason of such
purchase.
13. This Agreement and any Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
14. Time shall be of the essence in this Agreement and any Terms
Agreement.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
18
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and each of you in accordance with its terms.
Very truly yours,
Caterpillar Financial Services Corporation
By: _______________________________
President
Accepted in New York, New York,
as of the date hereof:
[Name of agent]
By: _______________________
[Name of agent]
By: _______________________
19
