EXHIBIT 1
Caterpillar Financial Services Corporation
$2,500,000,000
Debt Securities
Distribution Agreement
----------------------
, 1997
________________________
________________________
________________________
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 $2,500,000,000 or its
equivalent in foreign currencies or currency units and agrees with
_________________________ (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 First
Trust of New York, 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
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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 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
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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;
(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
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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.
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
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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
------------------- -------------------
__________________________________ ___________
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
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
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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."
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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 Prospec tus 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
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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 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
9
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);
(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
10
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 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
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(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
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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) 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;
13
(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;
(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
14
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
(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
15
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 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
16
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 Corporation 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.
17
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 confirma tion 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 state ment 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
18
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 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, 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
19
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 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
20
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, repre sentations,
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 sub sections (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 _______________ shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to _______________; if to
_______________ shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to _______________; if to
_______________ shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to _______________; 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, Attention: General
Counsel.
21
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.
22
If the foregoing is in accordance with your under standing, 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:
___________________________
_______________________
By: _______________________
_______________________
By: ________________________
23
