Exhibit 1.1
Caterpillar Financial Services Corporation
$4,000,000,000
Debt Securities
Distribution Agreement
----------------------
[__________________, 200_]
[Agent Name]
[Agent Address]
[Agent Name]
[Agent 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-
_______) (the "Initial Registration Statement") 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 the Initial 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 the Initial Registration Statement in such
form has been declared effective by the Commission and no stop order
suspending the effectiveness of the Initial Registration Statement or a
registration statement, if any, increasing the size of the offering (a "Rule
462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Act
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement being hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and a
Rule 462(b) Registration Statement, if any, including all exhibits thereto but
excluding Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes 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
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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 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;
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(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;
(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 (the "Support
Agreement"), 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.
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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.
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 (or such other amount as may be
agreed to from time to time):
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 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
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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
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
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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:
(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
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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 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 nine months or more 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
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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);
(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
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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
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).
(m) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date
of the Terms Agreement, and the Company shall at the time of filing either pay
to the Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
(n) The Company will notify the Agents as soon as practicable, and
confirm such notice in writing, of any change in the rating assigned by any
nationally recognized statistical rating organization to the Program or any debt
securities (including the Securities) of the Company, or the public announcement
by any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities.
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.
10
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 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) If the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of the Terms Agreement; 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
11
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;
(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 data therein, as to which such counsel need express no
opinion or
12
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
(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 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 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 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;
13
(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 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 acceptance of an offer
to purchase Securities hereunder (including any purchase by an Agent as
principal and not pursuant to a Terms Agreement) or 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 or any suspension of trading of the
Company's securities on any exchange or in the over-the-counter market; (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, or any material adverse change in
the financial markets of the United States, if the effect of any such event
specified in this clause (iii) in your judgment 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
14
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.
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
15
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 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. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(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
16
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 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), Xxxxxxx 0, Xxxxxxx 0,
Xxxxxxx 0 and Section 9
17
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 (d), (g), (h), (i) and (j) of Section 4. In addition, if any such
termination of this Agreement shall occur at a time when any Agent shall own any
of the Securities purchased from the Company with the intention of reselling
them, the obligations of the Company under Section 4 shall also remain in effect
so long as such Agent owns any of such Securities.
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 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: _______________________________
