EXHIBIT 1.1
EXECUTION COPY
CATERPILLAR FINANCIAL SERVICES CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
June 24, 2002
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the
Several Underwriters
Ladies and Gentlemen:
Caterpillar Financial Services Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell its debt securities (the "Securities") as
shall be designated by the Company from time to time in or pursuant to one or
more offerings on terms to be determined at the time of sale.
Unless otherwise specified in the applicable Terms Agreement (as defined
below), the Securities will be issued in one or more series under an 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"). Each series of Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, and any other variable terms
established by, or pursuant to, the Indenture.
Whenever the Company determines to make an offering of Securities through
X.X. Xxxxxx Securities Inc. ("JPMorgan") and through Xxxxxxx Xxxxx Barney Inc.
("Xxxxxxx Xxxxx Xxxxxx" and, together with JPMorgan, the "Representatives"), or
through an underwriting syndicate co-managed by the Representatives, the Company
will enter into an agreement (each, a "Terms Agreement") providing for the sale
of such Securities to, and the purchase and offering thereof by, the
Representatives and such other underwriters, if any, selected by the
Representatives (the "Underwriters", which term shall include the
Representatives, whether acting alone or as members of an underwriting
syndicate, as well as any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to each offering of Securities shall
specify the aggregate principal amount of Securities to be issued (the
"Underwritten Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other than the Representatives acting as co-manager in
connection with such offering, the aggregate principal amounts of Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery of and payment for the Underwritten Securities and any other
material variable terms of the Underwritten Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written communication (including
facsimile) between the Company and the Representatives, acting for themselves
and, if applicable, as representatives of any other Underwriters. Each offering
of Underwritten Securities through the Representatives as Underwriters or
through an underwriting syndicate managed by the Representatives will be
governed by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to the Representatives, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, and
as of the relevant Closing Time (as defined below), as follows:
(1) Compliance with Registration Requirements. A registration
statement on Form S-3 (Registration No. 333-59540) in respect of the
Securities has been filed with the Securities and Exchange Commission
(the "Commission"). Such registration statement and any registration
statement filed pursuant to Rule 462(b) of the rules and regulations of
the Commission under the Act (the "1933 Act Regulations"), hereinafter
referred to as the "Rule 462(b) Registration Statement," in the form
heretofore delivered or to be delivered to the Underwriters, 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
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which are deemed under Rule 412 under the Securities Act of 1933, as amended
(the "1933 Act"), not to be incorporated by reference in such Prospectus), and
such registration statement and any Rule 462(b) Registration Statement in such
form has been declared effective by the Commission and no stop order suspending
the effectiveness of such registration statement and any Rule 462(b)
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, and any Rule 462(b) Registration Statement, being hereinafter
collectively called the "Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the Underwritten 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 Underwriting Agreement,
being hereinafter called the "Prospectus"; any reference herein to the
Registration Statement, 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 1933 Act as of the date of such
Registration Statement, 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 to relate to Underwritten Securities sold pursuant to
this Underwriting Agreement, in the form in which it is filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the 1933
Act Regulations, including any documents incorporated therein by reference as of
the date of such filing or mailing).
(2) Preliminary Prospectus. Each Preliminary Prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act and each Preliminary Prospectus
delivered to the Underwriters for use in connection with the offering of
Underwritten Securities will, at the time of such delivery, be identical to the
form in which it is filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the 1933 Act, except to the extent permitted by
Regulation S-T.
(3) Incorporated Documents. The documents incorporated by reference in
the Registration Statement or 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 1933 Act or the Exchange Act, as applicable,
and the rules
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and regulations of the Commission thereunder, and none of such documents
contained, in the case of a registration statement which became effective under
the 1933 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 1933 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 1933 Act; and any further
documents so filed and incorporated by reference in the Registration Statement
or 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 1933 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 1933 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 1933 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 the Underwriters through the Representatives expressly for use in the
Registration Statement or the Prospectus as amended or supplemented which
relates to a particular issuance of Underwritten Securities.
(4) Registration Statement and Prospectus. The Registration Statement and
the Prospectus conform, and any amendments or supplements thereto will conform,
in all material respects to the requirements of the 1933 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 any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with the information furnished in writing to the Company
by the Underwriters through the Representatives expressly for use in the
Prospectus as amended or supplemented which relates to a particular issuance of
Underwritten Securities.
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(5) No Material Adverse Change in Business. 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.
(6) Good Standing of the Company. 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.
(7) Authorization of Company Capital. 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.
(8) Authorization of this Underwriting Agreement and the Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and delivered by the
Company.
(9) Authorization of Securities; Indenture. The Underwritten Securities
have been duly authorized, and, when issued and delivered pursuant to this
Underwriting Agreement and any Terms Agreement, such Underwritten 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,
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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 Underwritten Securities
will conform to the descriptions thereof in the Prospectus as amended or
supplemented to relate to the Underwritten Securities.
(10) Absence of Defaults and Conflicts; No Consents Required. The
issue and sale of the Underwritten Securities and the compliance by the
Company with all of the provisions of the Underwritten Securities, the
Indenture, this Underwriting Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
Caterpillar is a party or by which the Company or Caterpillar is bound or
to which any of the property or assets of the Company or Caterpillar is
subject, including the Support Agreement, dated as of December 21, 1984,
between the Company and Caterpillar, as amended, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or Bylaws 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 issue and sale of the Underwritten Securities or the
consummation by the Company of the other transactions contemplated by
this Underwriting Agreement, any Terms Agreement or the Indenture, except
such as have been, or will have been prior to the Closing Time (as
defined in Section 2 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 purchase and distribution of the Underwritten
Securities by the Underwriters in the manner contemplated hereby.
(11) Absence of Proceedings. 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.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a
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representation and warranty by the Company to each Underwriter as to the matters
covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made in the case of Securities in registered
form, at the offices of Xxxxxxx Xxxxx Barney Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:30 A.M. (Eastern Time) on the third
business day after the date of the applicable Terms Agreement (unless postponed
in accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for their respective accounts or, if applicable, for the
respective accounts of the Underwriters of the Underwritten Securities to be
purchased by them (unless such Underwritten Securities are issuable only in the
form of one or more global securities registered in the name of a depositary or
a nominee of a depositary, in which event the Underwriters' interest in such
global certificate shall be noted in a manner satisfactory to the Underwriters
and their counsel). It is understood that each Underwriter has authorized the
Representatives, for their respective accounts, to accept delivery of, receipt
for, and make payment of the purchase price for, the Underwritten Securities
which it has severally agreed to purchase. JPMorgan and Xxxxxxx Xxxxx Xxxxxx,
individually and not as representatives of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) Denominations; Registration. Certificates for the Underwritten
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day prior to
the Closing Time. The certificates for the Underwritten Securities will be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern Time) on the business day prior to
the Closing Time.
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SECTION 3. Covenants of the Company. The Company covenants with the
Representatives, and with each Underwriter participating in the applicable
offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify the Representatives immediately,
and confirm the notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus relating to the Underwritten
Securities or effective prior to completion of the distribution of the
Underwritten Securities, (ii) the receipt of any comments from the Commission,
(iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 of the 1933 Act Regulations and will take such steps as it
deems necessary to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and, in the
event that it was not, it will promptly file the Prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations)
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the Exchange Act or otherwise, will furnish
the Representatives with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representatives or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, upon request, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
Copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be
8
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the Exchange Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the Exchange Act and the Trust Indenture Act and the
respective regulations thereunder so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this Underwriting
Agreement and the applicable Terms Agreement and in the Registration Statement
and the Prospectus. If at any time when the Prospectus is required by the 1933
Act or the Exchange Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement in order that the Registration
Statement will not 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 or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act, the Company will promptly prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriters,
without charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of the applicable Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or
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to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of such Terms Agreement. The
Company will also supply the Underwriters with such information as is reasonably
necessary for the determination of the legality of the Underwritten Securities
for investment under the laws of such jurisdictions as the Underwriters may
request.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the Exchange Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities prior to the Closing Time on any national or
offshore securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(i) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the later of termination of any trading restrictions, as
notified to the Company by the Representatives, or the Closing Time with respect
to the Underwritten Securities, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, issue, sell, offer to
sell, grant any option for the sale of, or otherwise dispose of, any new issue
of debt securities of the Company with a maturity of more than nine months and
which are substantially similar to the Underwritten Securities, including
additional Securities (except for (i) any debt securities issued upon exercise
of warrants, (ii) medium-term notes of the Company issued in the ordinary course
of business (A) acting as agent for the Company or (B) acting as principal and
purchasing up to $10 million aggregate principal amount of medium-term notes of
the Company for resale, or (iii) any debt securities of the Company denominated
in a currency other than the currency in which the Underwritten Securities
subject to such Terms Agreement shall be denominated) or any warrants for the
purchase of debt securities of the Company with a maturity of more than nine
months.
(j) Reporting Requirements. The Company will 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 sale of the
Underwritten Securities.
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SECTION 4. Payment of Expenses.
(a) Expenses. Unless otherwise provided in any applicable Terms
Agreement, the Company covenants and agrees with the Underwriters 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
Underwritten Securities under the 1933 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 the Underwriters; (ii) the
cost of printing or reproducing this Underwriting 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 Underwritten Securities; (iii) all expenses in connection with the
qualification of the Underwritten Securities for offering and sale under state
securities laws as provided in Section 3(f) hereof, including fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by security rating services for rating the Underwritten
Securities; (v) the cost of preparing the Underwritten Securities; (vi) 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 Underwritten Securities; (vii) the fees and expenses of any Depositary (as
defined in the Indenture) and any nominees thereof in connection with the
Underwritten Securities; and (viii) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Underwritten Securities so
long as such advertising expenses have been approved by the Company.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representatives in accordance with the provisions of Section 5
or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters named in
such Terms Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof as of the date hereof and as of the
Closing Time, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. No stop order suspending the
effectiveness of the Registration Statement, including any Rule 462(b)
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
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part of the Commission shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable.
(b) Opinion of Counsel for Underwriters. Counsel for the Underwriters
shall have furnished to the Underwriters such opinion or opinions, dated the
Closing Time, with respect to the incorporation of the Company, the validity of
the Indenture, the Underwritten Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as the Representatives may reasonably request to
enable them to pass upon such matters.
(c) Opinion of Counsel for Company. Counsel for the Company shall have
furnished to the Underwriters their written opinion, dated the Closing Time, in
form and substance satisfactory to the Representatives, 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 Underwriting Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company;
(v) The Underwritten Securities have been duly authorized
and, when the Underwritten Securities have been duly executed,
authenticated, issued and delivered by the Company, such
Underwritten Securities will
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constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the
Indenture conforms and the Underwritten 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 Underwritten Securities
and the compliance by the Company with all of the provisions of
the Underwritten Securities, the Indenture, this Underwriting
Agreement and the applicable 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 Bylaws of the Company, the General Corporation Law of the
State of Delaware, or any statute of the United States of America
or any rule or regulation thereunder (provided that no opinion
need be expressed in this paragraph as to compliance with the
1933 Act, the Trust Indenture Act, the Exchange Act 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 Underwritten Securities by the Company or
the consummation by the Company of the other transactions
contemplated by this Underwriting Agreement or any Terms
Agreement or the Indenture, except such as have been obtained
under the 1933 Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may
be
13
required under Delaware securities or Blue Sky laws in connection
with the issue and sale of the Underwritten 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 1933 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 1933 Act and the Trust Indenture Act
and the rules and regulations thereunder.
In addition, such counsel shall state that while such counsel
makes no representation that such counsel has independently verified the
accuracy or completeness of the information contained in the documents
incorporated by reference in the Prospectus, such counsel has no reason to
believe that such documents (other than the financial statements and related
schedules and other financial data therein, as to which such counsel 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
such counsel makes no representation that such counsel has 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", "Underwriting" and
"Description of Debt Securities We May Offer", in each case insofar as they
relate to the provisions of documents therein described), such counsel has no
reason to believe that any part of the Registration Statement, insofar as
relevant to the offering of the Underwritten 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 such counsel 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
14
Rule 412 of Regulation C under the 1933 Act; and such counsel does 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) Accountant's Comfort Letter. At the Closing Time, 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 the Representatives a letter, dated the Closing Time, in
form and substance satisfactory to the Representatives, to the effect set forth
in Annex I hereto.
(e) Officers' Certificate. The Company shall have furnished or caused to
be furnished to the Representatives a certificate of officers of the Company
satisfactory to the Representatives, dated the Closing Time, as to the accuracy
of the representations and warranties of the Company herein at and as of the
Closing Time, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Closing Time or such applicable
date, as to the matters set forth in subsection (a) of this Section 5 and
subsection (b) of Section 9, and as to such other matters as the Representatives
may reasonably request.
(f) Approval of Listing. Unless stated otherwise in the applicable Terms
Agreement, at Closing Time, the Underwritten Securities shall have been approved
for listing, subject only to official notice of issuance.
(g) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Underwritten Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(h) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by the Representatives by
notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4(b) and except that Sections 6 and 7 shall survive any such
termination and remain in full force and effect.
15
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company will indemnify and hold
each Underwriter harmless against any losses, claims, damages or liabilities,
joint or several, to which any Underwriter may become subject, under the 1933
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 Underwritten 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 Underwriter 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 Underwritten Securities or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Underwriters through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Underwritten Securities; and provided,
further, that the Company shall not be liable to any Underwriter 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 Underwriter sold Underwritten 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 Underwriter.
(b) Indemnification of Company. Each Underwriter will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the 1933 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 Underwritten 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 Underwritten Securities, or any such amendment or
16
supplement in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives 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) Actions against Parties; Notification. 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. 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) The obligations of the Company under this Section 6 and Section 7
below 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 Underwriter within the meaning of the 1933 Act; and each
Underwriter's obligations under this Section 6 and Section 7 below shall be in
addition to any liability which such Underwriter 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 1933 Act.
SECTION 7. Contribution. If the indemnification provided for in Section 6
is unavailable to or insufficient to hold harmless an indemnified party under
Section 6(a) 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
17
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 Underwriters
on the other from the offering of the Underwritten Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the indemnification provided for in Section 6 is unavailable to or
insufficient to hold harmless an indemnified party under Section 6(b) 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 Section 6(c), 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 Underwriters 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 Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of such
Underwritten Securities (before deducting expenses) received by the Company bear
to the total commissions or discounts received by the Underwriters 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
Underwriters 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 Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 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 Section 7. 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
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter 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. The obligations of the Underwriters
to contribute pursuant to this Section 7 are several in proportion to their
respective underwriting commitments, as set forth in the applicable Terms
Agreement, and are not joint.
18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties, indemnities and agreements contained
in this Underwriting Agreement or the applicable Terms Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or the Representatives upon the giving of 30 days' prior written notice
of such termination to the other party hereto.
(b) Terms Agreement. The Representatives may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time, if (i) there has been, since the time of execution of such Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) in the opinion of the
Representatives, there has occurred any material adverse change in the financial
markets in the United States, in the international financial markets, or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company or
Caterpillar Inc. has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York Stock Exchange or the
American Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by either of said exchanges or
by such system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or, if the Underwritten Securities include Securities
denominated or payable in, or indexed to, one or more foreign or composite
currencies, by the relevant authorities in the related foreign country or
countries, or (v) a material disruption in commercial banking or securities
settlement or clearance services in the United States has occurred.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without
19
liability of any party to any other party except as provided in Section 4(b)
hereof, and provided further that Sections 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
under such Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, except for the
indemnification and contribution agreements in Sections 6 and 7 hereof.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either the Representatives or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Xxxxxxx Xxxxx Xxxxxx
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of the Debt
Syndicate Desk, or, in respect of any Terms Agreement, to such other person and
place as may be specified therein; and notices to the Company shall be directed
to it at 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, attention of the
General Counsel.
20
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Representatives and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
SUCH STATE.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
If the foregoing is in accordance with the Representatives' understanding
of the agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will become
a binding agreement between the Representatives and the Company in accordance
with its terms.
Very truly yours,
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
BARCLAYS CAPITAL INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxxxx Land
-------------------------------------
Name: Xxxxxxxxx Land
Title: Vice President
Exhibit A
CATERPILLAR FINANCIAL SERVICES CORPORATION
(a Delaware corporation)
Debt Securities
TERMS AGREEMENT
Dated:___________, ____
To: Caterpillar Financial Services Corporation
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
We understand that Caterpillar Financial Services Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $ aggregate
principal amount of its debt securities (the "Securities") (such securities also
being hereinafter referred to as the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase, [severally and
not jointly], the principal amount of Underwritten Securities [opposite their
names set forth below] at the purchase price set forth below.
Principal Amount
Underwriter of Underwritten Securities
----------- --------------------------
Total
------------------------
[$]
========================
A-1
The Underwritten Securities shall have the following terms:
Title:
Rank:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Rating requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: % of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from ___________________. Purchase price: ____% of principal amount, plus
accrued interest [amortized original issue discount], if any, from
________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "CATERPILLAR FINANCIAL SERVICES CORPORATION -- Debt Securities
-- Underwriting Agreement" (the "Underwriting Agreement") are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined. Each reference to Underwriters in the Underwriting Agreement so
incorporated herein by reference shall be deemed to refer to the Underwriters as
defined in this Terms Agreement.
A-2
Please accept this offer no later than ____ P.M. (New York City time) on
___________________ by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
X.X. XXXXXX SECURITIES INC.
By:
----------------------------------------
Name:
Title:
XXXXXXX XXXXX XXXXXX INC.
By:
----------------------------------------
Name:
Title:
Acting on behalf of themselves and
the other named Underwriters.
Accepted:
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By:
--------------------------
Name:
Title:
A-3
