CATERPILLAR INC.
UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx Xxxxxx Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Chase Securities Inc.
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
7 World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 14, 1999
Ladies and Gentlemen:
Caterpillar Inc. (the "Company") confirms its agreement with Xxxxxxx
Xxxxx Barney Inc.("Xxxxxxx Xxxxx Xxxxxx") and each of the other
"Underwriters" named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx Barney is acting as representative) (in such capacity,
the "Representative"), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not
jointly, of the respective principal amounts set forth in said Schedule
A of $300 million aggregate principal amount of the Company's debt
securities (the "Securities") described in Schedule B. The Securities
are to be issued pursuant to an indenture, dated as of May 1, 1987, as
supplemented (the "Indenture"), between the Company and Citibank, N.A.,
as trustee (the "Trustee"). The term "Indenture," as used herein,
includes the Officer's Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to Section
201 of the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") two registration statements on Form S-3 (File Nos.
333-43983 and 333-22041) covering the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Promptly
after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of
Rule 424(b) ("Rule 424(b)") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). Each
prospectus used before such registration statements became effective
is herein called a "preliminary prospectus." Such registration
statements, including the exhibits thereto, schedules thereto, if any,
and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act are herein called the "Registration
Statements." Any registration statement filed pursuant to Rule 462(b)
of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statements" shall include the Rule 462(b) Registration Statement. The
final prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form
first furnished to the Underwriters for use in connection with the
offering of the Securities is herein called the "Prospectus." For
purposes of this Agreement, all references to the Registration
Statements, any preliminary prospectus, the Prospectus or any amendment
or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in
the Registration Statements, any preliminary prospectus or the
Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration
Statements, any preliminary prospectus or the Prospectus, as the case
may be; and all references in this Agreement to amendments or
supplements to the Registration Statements, any preliminary prospectus
or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), which is incorporated by reference in the Registration
Statements, such preliminary prospectus or the Prospectus, as the case
may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as
of the Closing Time referred to in Section 2(b) hereof, and agrees with
each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statements and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statements or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statements, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statements, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and 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.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time, included or will include an untrue statement
of a material fact or omitted or will omit 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statements or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statements or
Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statements 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 Regulations
and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statements and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statements became effective, at the time the Prospectus
was issued and at the Closing Time, did not and 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.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statements are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statements and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statements present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statements.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statements
and the Prospectus, except as otherwise stated therein, (A) there has
been no 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 (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C)
except for regular quarterly dividends on the Common Stock in amounts
per share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X)
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statements, all of
the issued and outstanding capital stock of each such Subsidiary has
been duly authorized and validly issued, is fully paid and non-
assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such
Subsidiary.
(viii) Capitalization. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and,
when duly executed and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The Securities
and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and
will be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statements.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated herein
and in the Registration Statements (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder
and under the Indenture and the Securities have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or bylaws of
the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration
Statements (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
Properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statements,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statements, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xvii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws and except for the
qualification of the Indenture under the 1939 Act.
(xix) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such Property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xxi) Environmental Laws. Except as described in the Registration
Statements and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative
or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional principal
amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of
Underwriters' counsel, or at such other place as shall be agreed upon
by the Representative and the Company, at 9:00 A.M. (Eastern time) on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed
in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed
upon by the Representative and the Company (such time and date of
payment and delivery being herein called "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 Representative for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by
them. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Securities which it has
agreed to purchase. Xxxxxxx Xxxxx Xxxxxx, individually and not as
Representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the
Closing Time, as the case may be, but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Securities shall be in such
denominations and registered in such names as the Representative may
request in writing at least one full business day prior to the Closing
Time. The Securities will be made available for examination and
packaging by the Representative in The City of New York no later than
10:00 A.M. (Eastern Time) on the business day prior to the Closing
Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements
of Rule 424 and will notify the Representative immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statements shall become effective, or any supplement to
the Prospectus or any amended Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statements or
any amendment or supplement to the Prospectus or for additional
information and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statements or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the 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(b) and
will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was
not, it will promptly file such 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 Representative
notice of its intention to file or prepare any amendment to the
Registration Statements (including any filing under Rule 462(b)), or
any amendment, supplement or revision to either the prospectus included
in the Registration Statements at the time it became effective or to
the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representative 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 Representative or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statements 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 Representative, without charge, a conformed copy of
the Registration Statements as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statements and each amendment thereto furnished to the
Underwriters will be identical to the 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 has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, 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 1934 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 the
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 and the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with the 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 Statements or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements 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 Statements or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, 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 Statements or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters 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 Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions as the Representative may designate and to
maintain such qualifications in effect for a period of not less than
one year from the later of the effective date of the Registration
Statements and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or 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 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 effective date of the
Registration Statements and any Rule 462(b) Registration Statement.
The Company will also supply the Underwriters with such information as
is necessary for the determination of the legality of the Securities
for investment under the laws of such jurisdiction as the Underwriters
may request.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 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) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file
all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act Regulations.
(j) Other Offerings. During the period beginning from the date of
this Agreement and continuing to and including the Closing Time, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after such
Closing Time and which are substantially similar to the Securities,
without the prior written consent of the Representative.
SECTION 4. Payments of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statements
(including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery
to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with
the Indenture and the Securities, and (ix) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters
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 several Underwriters hereunder 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
subsidiary of the Company delivered pursuant to the provisions hereof,
to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions.
(a) Effectiveness of Registration Statements. The Registration
Statements, including any Rule 462(b) Registration Statement, have
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statements shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx X. Xxxxxxx, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters with respect to the incorporation of the
Company, the Registration Statements, the Prospectus as amended or
supplemented and other related matters as the Representative may
reasonably request, and such counsel shall have received such papers
and information as the Representative may reasonably request to enable
them to pass upon such matters. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United
States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof 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, and the Representative shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section l(a) hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time and (iv)
no stop order suspending the effectiveness of the Registration
Statements has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(e) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to the Representative, together with signed or
reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statements and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from PricewaterhouseCoopers LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (e) of this Section,
except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall be
rated at least "A2" by Xxxxx'x Investors Service, Inc. and "A+" by
Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and
the Company shall have delivered to the Representative a letter dated
the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Securities have
such ratings; and since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the Securities or
any of the Company's other securities by any "nationally recognized
statistical rating agency," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the
Company's other securities.
(h) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the 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 Securities as herein contemplated shall be satisfactory in
form and substance to the Representative and counsel for the
Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representative by
notice to the Company at any time at or prior to Closing Time and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statements (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) such settlement is effected with the written
consent of Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statements, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statements (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representative expressly
for use in the Registration Statements (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the
Representative, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding 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) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) 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 hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, 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 hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by
the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters
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 (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above
in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to
above in this Section shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or claim whatsoever based upon any such untrue
or alleged untrue statement or omission or alleged omission.
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 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 any 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 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statements, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to
the principal amount of Securities set forth opposite their respective
names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto, 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 the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this
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) if there has occurred any material adverse change in
the financial markets in the United States or the international
financial markets, 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 Representative, impracticable to market
the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange,
Chicago Stock Exchange or the Pacific Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange
or the Nasdaq National Market has been suspended or materially limited,
or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission or any other Governmental
authority, or (iv) if a banking moratorium has been declared by either
Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6, 7 and 8 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 Closing Time to purchase the
Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative 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 Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
each of 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 hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability with respect to its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have
the right to postpone Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration
Statements or Prospectus or in any other documents or arrangements. As
used herein, the term "Underwriter" includes any person substituted for
any Underwriter under this Section 10.
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 Representative at
7 World Trade Center, 30th Floor, New York, New York 10048, attention
of Registration Department; and notices to the Company shall be
directed to it at its corporate offices in Peoria, Illinois, attention
of Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit
of and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
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 Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Underwriters and the Company
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 Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction thereof.
Very truly yours,
CATERPILLAR INC.
BY: /s/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
Accepted as of the date hereof:
XXXXXXX XXXXX XXXXXX INC.
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
EXHIBIT A
Pursuant to Section 5(b) of the Underwriting Agreement, Xxxxxxx X.
Xxxxxxx, counsel for the Company, shall furnish his written opinion to
the Underwriters 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 as amended or supplemented;
(ii) 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;
(iii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
the State of Illinois;
(iv) 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 otherwise be required to be disclosed in the
Registration Statements which is not disclosed and accurately
summarized in the Prospectus as amended or supplemented;
(v) This Underwriting Agreement (and any applicable Terms Agreement)
has been duly authorized, executed and delivered by the Company;
(vi) The Securities have been duly authorized and, when duly executed,
authenticated, issued and delivered by the Company, will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, subject to limitations imposed by
bankruptcy, insolvency, reorganization, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally, and to general principles
of equity, regardless of whether considered in a proceeding in equity
or at law; and the Indenture conforms and the Securities will conform
in all material respects to the descriptions thereof in the Prospectus
as amended or supplemented;
(vii) The Indenture has been duly authorized, executed and delivered
by parties thereto and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject to limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally and to general principles of equity, regardless of whether
considered in a proceeding in equity or at law; and the Indenture has
been duly qualified under the Trust Indenture Act;
(viii) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this 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 is a
party or by which the Company 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 Restated 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 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 state securities or Blue Sky laws in connection with the issue
and sale of the Securities;
(ix) The documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules and other financial
data therein, as to which such counsel need express no opinion or
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, as applicable, and the rules and regulations of the
Commission thereunder;
(x) The Registration Statements, as of the date on which any part
thereof became effective, and the Prospectus, as of the date of such
opinion (other than the financial statements and related schedules and
other financial data therein, as to which such counsel need express no
opinion or belief) complied or complies as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder;
(xi) The statements made in the Prospectus under the caption
"Description of the Debentures" and "Plan of Distribution" and in the
Prospectus Supplement under the captions "Description of the
Debentures" and "Underwriting" are accurate summaries of the matters
therein set forth insofar as they relate to the provisions of documents
therein described and fairly present the information called for with
respect thereto by the Act and the rules and regulations thereunder.
In addition, such counsel shall state that while he makes no
representation that he has independently verified the accuracy or
completeness of the information contained in the documents incorporated
by reference in the Prospectus, he has no reason to believe that any of
such documents (other than the financial statements and related
schedules and other financial data therein, as to which he 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
Statements or Prospectus pursuant to Rule 412 or Regulation C under the
Act; further, such counsel shall state that while he makes no
representation that he has independently verified the accuracy or
completeness of the information contained in the Registration
Statements and the Prospectus (other than under the captions identified
in paragraph (xi) hereof), he has no reason to believe that any part of
the Registration Statements, insofar as relevant to the offering of the
Securities, as of the date on which such part became effective, or the
Prospectus, as of the date of such opinion (other than the financial
statements and related schedules and other financial data therein, as
to which he 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 Statements or the Prospectus pursuant to Rule 412 of
Regulation C under the Act; and he does not know of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statements or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statements or the Prospectus which are not filed or incorporated by
reference or described as required.
SCHEDULE A
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
Xxxxxxx Xxxxx Xxxxxx Inc. . . . . . . . . .US$210,000,000
ABN AMRO Incorporated . . . . . . . . .US$ 30,000,000
Banc of America Securities LLC . . . . . . . . .US$ 30,000,000
Chase Securities Inc. . . . . . . . . .US$ 30,000,000
--------------
Total US$300,000,000
SCHEDULE B
Title of Designated Securities:
7.25% Senior Debentures due 2009
Aggregate Principal Amount:
US$300,000,000
Price to Public:
99.811% of the principal amount of the Debentures, plus accrued
interest, if any, from September 17, 1999
Purchase Price by Underwriters:
99.161% of the principal amount of the Debentures, plus accrued
interest, if any, from September 17, 1999
Underwriting Discount or Commission (including aggregate dollar
amount):
0.650% of the principal amount of the Debentures (US$1,950,000)
Specified Funds for and Method of Payment of Purchase Price and
Underwriting Commission (if not paid in the form of a discount):
Same-day funds, to be paid by wire transfer or certified or official
bank check or checks, payable to the order of the Company
Indenture:
Indenture, dated as of May 1, 1987, as supplemented to date (the
"Indenture"), made between the Company and Citibank, N.A., as Trustee
Maturity Date:
September 17, 2009
Interest Rate:
7.25%
Interest Payment Dates:
March 15 and September 15, commencing March 15, 2000
Optional Redemption Provisions:
The Company will be able to redeem the Debentures in whole or in part
at any time at a redemption price equal to the greater of a) 100% of
the principal amount of the Securities; or b) the sum of the present
values of the Remaining Scheduled Payments of principal and interest
discounted to the redemption date on a semiannual basis at the Treasury
Rate plus 10 basis points, plus in each case accrued interest thereon
to the date of redemption.
Sinking Fund Provisions:
No sinking fund provisions
Manner of Delivery of Securities:
Registered Global Securities through The Depository Trust Company
Time of Delivery:
10:00 A.M., New York time, on September 17, 1999
Closing Location:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Name and Address of the Representative:
Xxxxxxx Xxxxx Barney Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
