Exhibit 1.1
Caterpillar Financial Services Corporation
$[________________]
Debt Securities
Form of Distribution Agreement
[______________], 200_
[Agent Name]
[Agent Address]
[Agent Name]
[Agent Address]
[Agent Name]
[Agent Address]
Dear Sirs:
Caterpillar Financial Services Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell its debt securities (the "Securities") in
an aggregate principal amount of up to $[___________] or its equivalent in
foreign currencies or currency units and agrees with [names of agents] (each
individually an "Agent", and collectively the "Agents") as set forth herein.
Subject to the terms and conditions stated herein, the Company hereby (i)
appoints each of the Agents as an agent of the Company for the purpose of
soliciting offers to purchase the Securities from the Company and (ii) agrees
that, except as otherwise contemplated herein, whenever it determines to sell
Securities directly to any of the Agents as principal for resale to others, it
will enter into a separate agreement, which may be a written agreement,
substantially in the form of Annex I hereto or an oral agreement confirmed in
writing by such Agent (each a "Terms Agreement") relating to such sale in
accordance with Section 2(b) hereof.
The terms and rights of the Securities shall be as specified in or
established pursuant to the indenture, dated as of April 15, 1985, as
supplemented to the date hereof (the "Indenture"), between the Company and U.S.
Bank Trust National Association, as successor Trustee (the "Trustee"). The
Securities shall have the maturity ranges, annual interest rates, redemption
provisions and other terms set forth in the Prospectus referred to below as it
may be supplemented from time to time. The Securities will be issued, and the
terms thereof established, from time to time by the Company in accordance with
the Indenture and the Administrative
Procedure attached hereto as Annex II or as otherwise agreed upon and, if
applicable, will be specified in a related Terms Agreement.
1. The Company represents and warrants to, and agrees with, you
that:
(a) A registration statement on Form S-3 (Registration No. 333-______)
(the "Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") in the form
heretofore delivered or to be delivered to you, excluding exhibits to the
Initial Registration Statement, but including all documents incorporated by
reference in the prospectus included therein (except for any statements in such
documents which are deemed under Rule 412 under the Securities Act of 1933, as
amended (the "Act"), not to be incorporated by reference in such prospectus),
and the Initial Registration Statement in such form has been declared effective
by the Commission and no stop order suspending the effectiveness of the Initial
Registration Statement or a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Act has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus included
in the Initial Registration Statement being hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and a Rule
462(b) Registration Statement, if any, including all exhibits thereto but
excluding Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, being
hereinafter collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the Prospectus
as each time amended or supplemented (including any applicable supplement to the
Prospectus that sets forth the terms of a particular issue of the Securities (a
"Pricing Supplement")) to relate to Securities sold pursuant to this Agreement,
in the form in which it is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Act, including any documents
incorporated therein by reference as of the date of such filing or mailing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and, in the case of
other documents which were filed
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under the Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case after excluding any statement in any such
document which does not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 under the Act; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder
and will not contain, in the case of a registration statement which becomes
effective under the Act, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and, in the case of other documents which are
filed under the Act or the Exchange Act, an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by you expressly for use in the Prospectus
as amended or supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by you expressly for use in the Prospectus
as amended or supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
consolidated business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
change in the capital stock or any material increase in the consolidated
long-term debt of the Company or any of its subsidiaries (other than debt
incurred in the ordinary course pursuant to the Company's medium-term note
program) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and
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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 or conducts any
business so as to require such qualification;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and all of such shares are owned directly or indirectly by
Caterpillar Inc., a Delaware corporation ("Caterpillar"), free and clear of all
liens, encumbrances, security interests or claims;
(g) This Agreement has been, and, if applicable, the Terms Agreement as
of the date thereof will have been, duly authorized executed and delivered by
the Company.
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, such Securities
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities will conform to the
descriptions thereof contained in the Prospectus as amended or supplemented to
relate to the Securities;
(i) The issue and sale of the Securities, the compliance by the Company
with all of the provisions of the Securities, the Indenture, this Agreement and
any Terms Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation 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 or any of their subsidiaries is a party or by
which the Company or Caterpillar or any of their subsidiaries is bound or to
which any of the property or assets of the Company or Caterpillar or any of
their subsidiaries is subject, including the Support Agreement, dated as of
December 21, 1984, as amended (the "Support Agreement"), between the Company and
Caterpillar, as amended, nor will such action result in any violation of the
provisions of the Certificate of Incorporation, or By-Laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or Caterpillar or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the solicitation of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Terms Agreement or the Indenture, except
such as have been, or will have been prior to the Closing Date (as defined in
Section 3 hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
solicitation by you of offers to purchase the Securities from the Company and
with purchases of the Securities by you as principals, as the case may be, in
each case in the manner contemplated hereby;
(j) The Company is not, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as
described in the
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Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act");
(k) The Medium-Term Note Program under which the Securities are issued
(the "Program"), as well as the Securities, are rated A-2 by Xxxxx'x Investors
Service, Inc. and A by Standard & Poor's Ratings Services, or such other rating
as to which the Company shall have most recently notified the Agents; and
(l) Other than 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 or to
which any property of the Company or any of its subsidiaries is subject pending
before or brought by any court, arbitrator or governmental body, nor is any such
action, suit or proceeding to the knowledge of the Company threatened, in
respect of which, in the judgment of the Company, there is any reasonable
likelihood that it will result in a material adverse change in the condition
(financial or other) or business, or materially affect the properties or assets,
of the Company and its subsidiaries as a whole.
2. (a) On the basis of the representations and warranties, and subject
to the terms and conditions, herein set forth, each of the Agents hereby
severally agrees, as an agent of the Company, to use its reasonable best efforts
to solicit offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct any
or all of the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. Upon receipt
of instructions from the Company, the Agent or Agents receiving such
instructions will forthwith suspend solicitation of offers to purchase
Securities from the Company until such time as the Company has advised such
Agent or Agents that such solicitation may be resumed.
The Company agrees to pay the presenting Agent (or jointly to two or
more Agents if such presentation is jointly made) a commission, at the time of
settlement of each sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following percentage
of the principal amount of such Security sold (or such other amount as may
agreed to from time to time):
Fee as a Percentage
Range of Maturities of Principal Amount
------------------- -------------------
From 9 months to less than 12 months [___]%
From 12 months to less than 18 months [___]%
From 18 months to less than 24 months [___]%
From 24 months to less than 36 months [___]%
From 36 months to less than 48 months [___]%
From 48 months to less than 60 months [___]%
From 60 months to less than 72 months [___]%
From 72 months to less than 84 months [___]%
From 84 months to less than 96 months [___]%
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From 96 months to less than 108 months [___]%
From 108 months to less than 120 months [___]%
From 120 months to less than 180 months [___]%
From 180 months to less than 240 months [___]%
From 240 months to 360 months [___]%
Where the term of the Security is more than 30 years, the commission
shall be as agreed upon between the Company and the Agent at the time of sale.
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Securities other than those rejected by such Agent. The
Company shall have the sole right to accept offers to purchase Securities and
may reject any proposed purchase of Securities as a whole or in part. Each of
the Agents shall have the right, in its discretion reasonably exercised, to
reject any offer received by it to purchase Securities, as a whole or in part,
and any such rejection by an Agent shall not be deemed a breach of its
agreements contained herein.
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. Each Terms
Agreement will take the form of either (i) a written agreement between you and
the Company which shall be substantially in the form of Annex I hereto or (ii)
an oral agreement between you and the Company confirmed in writing by you to the
Company. Any Agent's commitment to purchase Securities pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth; provided that for purposes
of any Terms Agreement all references in this Agreement to "you" or "the Agents"
shall be deemed to refer only to the Agent or Agents party to such Terms
Agreement. Each Terms Agreement shall include a specification of the principal
amount of Securities to be purchased by an Agent pursuant thereto, the price to
be paid to the Company for such Securities, any provisions relating to rights
of, and default by, underwriters acting together with such Agent in the
reoffering of the Securities, and the time (each a "Time of Delivery") and place
of delivery of and payment for such Securities. Such Terms Agreement shall also
specify any requirements for officers' certificates, opinions of counsel and
accountants' letters pursuant to Section 4 hereof and any additional agreements
pursuant to Section 5 hereof. In connection with any purchase of Securities by
an Agent as principal, such Agent may utilize dealer groups and reallow
commissions and discounts.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment thereof shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
(c) Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase, and purchases by any Agent as principal
of, Securities, and the payment in each case therefor, are set forth in the
Administrative Procedure attached hereto as
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Annex II (the "Procedure"). The provisions of the Procedure shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. Each of the Agents and the Company agrees to perform the respective
duties and obligations specifically provided to be performed by each of them in
the Procedure as it may be amended from time to time by written agreement
between you and the Company.
(d) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency (or if such Security
is denominated in a composite currency, in any country issuing a currency
comprising a portion of such composite currency), except as permitted by
applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof
shall be delivered at the offices of [Agents' counsel] at 11:00 a.m., New York
City time, on the date of this Agreement, which date and time of such delivery
may be postponed by agreement between the Agents and the Company but in no event
shall be later than the day prior to the date on which Securities are first sold
hereunder, such time and date being herein called the "Closing Date."
4. The Company covenants and agrees with you:
(a) To make no amendment or supplement to the Registration Statement or
the Prospectus prior to the Closing Date or after the date of any Terms
Agreement and prior to the related Time of Delivery which shall be disapproved
by you promptly after reasonable notice thereof unless in the opinion of counsel
to the Company such amendment or supplement is required by law; to make no such
amendment or supplement, other than any Pricing Supplement, at any other time
prior to having afforded you a reasonable opportunity to review it; to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities, and during such same period to advise you,
promptly after it receives notice thereof of the time when any amendment to the
Registration Statement has been filed or become effective or any supplement to
the Prospectus or any amended Prospectus (other than any Pricing Supplement
relating to Securities not purchased through or by such Agent) has been filed
with, or transmitted for filing to, the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any such prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you reasonably may
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so as
to permit the continuance of
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sales and dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) To furnish you with copies of the Registration Statement and each
amendment thereto, and with copies of the Prospectus and each amendment or
supplement thereto, other than any Pricing Supplement (except as provided in the
Procedure), in the form in which it is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 under the Act, both in such quantities as
you may reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Securities (including Securities purchased from the Company by any Agent as
principal) and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and request you to
suspend solicitation of offers to purchase Securities from the Company, in your
capacity as agents of the Company and, if so notified, you shall forthwith cease
such solicitations; and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, other
than by any Pricing Supplement (except as provided in the Procedure), to so
advise you promptly by telephone (with confirmation in writing) and to prepare
and cause to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance;
provided, however, that if during such same period any Agent continues to own
Securities purchased from the Company by such Agent as principal, the Company
shall promptly prepare and file with the Commission such an amendment or
supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than 90 days after the close of the
period covered thereby, an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
the Company, Rule 158) and covering each twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the effective
date of the Registration Statement or a post-effective amendment thereto (within
the meaning of Rule 158);
(e) During the period when this Agreement is in effect, to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to the
Commission);
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(f) That, from the date of any Terms Agreement or other agreement by
such Agent to purchase Securities as principal and continuing to and including
the earlier of (i) the termination of the trading restrictions for the
Securities purchased thereunder, as notified to the Company by the Agent or
Agents party to such Terms Agreement, and (ii) the related Time of Delivery, the
Company will not, without the prior written consent of such Agent or Agents,
offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature nine months or more after such Time of Delivery and which
are substantially similar to the Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each sale of Securities to an Agent pursuant
to a Terms Agreement, shall be deemed to be an affirmation to the Agent or
Agents which are parties to such Terms Agreement that the representations and
warranties of the Company contained in or made pursuant to this Agreement are
true and correct as of the date of such acceptance or of such Terms Agreement as
though made at and as of such time, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance and as of the Time of Delivery relating
to such sale, as though made at and as of each such date (except that such
representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such
Securities);
(h) That each time the Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or supplement relating
solely to a change in the terms of the Securities and other than by any Pricing
Supplement), each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time, if so indicated in
the applicable Terms Agreement, the Company sells Securities to an Agent as
principal, the Company shall furnish or cause to be furnished forthwith to you a
certificate of officers of the Company satisfactory to you, dated the date of
such supplement, amendment, incorporation or Time of Delivery related to such
sale, in form satisfactory to you in your reasonable judgment, to the effect
that the statements contained in the certificate referred to in Section 6(f)
hereof which were last furnished to you are true and correct at such date, as
though made at and as of such date (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(f) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(i) That each time the Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or supplement relating
solely to a change in the terms of the Securities and other than by any Pricing
Supplement), each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time, if so indicated in
the applicable Terms Agreement, the Company sells Securities to an Agent as
principal, the Company shall furnish or cause to be furnished forthwith to you a
written opinion of counsel for the Company, or other counsel satisfactory to you
in your reasonable judgment, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, in form satisfactory to
you in your reasonable judgment, to the effect that you may rely on the opinion
referred to in Section 6(c) hereof which was last
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furnished to you to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date) or, in lieu of such opinion, an opinion of the
same tenor as the opinion referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus shall be
amended or supplemented and each time that a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, in either case to
set forth financial information included in or derived from the Company's
consolidated financial statements, or, if so indicated in the applicable Terms
Agreement, each time the Company sells Securities to an Agent as principal, the
Company shall cause its independent public accountants forthwith to furnish you
a letter, dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, in form satisfactory to you in your reasonable
judgment, of the same tenor as the letter referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
or supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company, to the extent such financial
statements and other information are available as of a date not more than five
business days prior to the date of such letter; provided, however, that where
such amendment, supplement or document incorporated by reference only sets forth
unaudited quarterly financial information, the scope of such letter may be
limited to relate to such unaudited financial information unless any other
accounting or financial information included or incorporated by reference
therein is of such a character that, in your reasonable judgment, such letter
should address such other information;
(k) That, in the event the Company determines to solicit offers to
purchase and sell the Securities to or through agents other than the Agents, the
Company shall provide the Agents prompt notice of such determination; and
(l) To offer to any person who has agreed to purchase Securities as the
result of an offer to purchase solicited by such Agent the right to refuse to
purchase and pay for such Securities if, on the related settlement date fixed
pursuant to the Procedure, any condition set forth in Section 6(a), 6(e) or 6(g)
hereof shall not have been satisfied (it being understood that the judgment of
such person with respect to the impracticability or inadvisability of such
purchase of Securities shall be substituted, for purposes of this Section 4(l),
for the respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(a), 6(e) and 6(g), and that such Agent shall have
no duty or obligation whatsoever to exercise the judgment permitted under such
Sections 6(a), 6(e) and 6(g) on behalf of any such person).
(m) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the Terms
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
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(n) The Company will notify the Agents as soon as practicable, and
confirm such notice in writing, of any change in the rating assigned by any
nationally recognized statistical rating organization to the Program or any debt
securities (including the Securities) of the Company, or the public announcement
by any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities.
(o) The Company will use its best efforts to effect the listing of the
Securities prior to the Time of Delivery on any national or offshore securities
exchange or quotation system if and as specified in the applicable Terms
Agreement.
5. Unless otherwise provided in any applicable Terms Agreement, the
Company covenants and agrees with you that the Company will pay or cause to be
paid the following: (i) the fees and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to you; (ii) the fees and expenses of your counsel in connection with
the transactions contemplated hereunder; (iii) the cost of printing or
reproducing this Agreement, any Terms Agreement, any Indenture, any Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iv) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 4(b) hereof, including fees and
disbursements of your counsel in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (v) any fees charged
by security rating services for rating the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Securities; (viii) the fees and
expenses of any Depositary (as defined in the Indenture) and any nominees
thereof in connection with the Securities; (ix) any advertising expenses
connected with the solicitation of offers to purchase and the sale of Securities
so long as such advertising expenses have been approved by the Company; and (x)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
Each Agent shall pay all other fees and expenses incurred by such Agent.
6. The obligations of each Agent, as agent of the Company, to solicit
offers to purchase the Securities and the obligation of each Agent to purchase
Securities as principal pursuant to any Terms Agreement or otherwise, shall in
each case be subject, in such Agent's reasonable discretion, to the condition
that all representations and warranties and other statements of the Company
herein are true and correct at and as of the Closing Date, the date of each such
solicitation, any settlement date related to the acceptance of such an offer,
and each Time of Delivery, the condition that the Company shall have performed
all of its obligations hereunder theretofore in each case to be performed and
the following additional conditions:
(a) If the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of the Pricing Agreement; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
11
(b) Your counsel shall have furnished to you such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the Company, the
validity of the Indenture, the Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as you may reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to you shall have furnished to
you their written opinion, dated the Closing Date or any applicable date
referred to in Section 4(i), as the case may be, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and corporate authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company's authorized capital stock is as set forth in
the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or
any of its consolidated subsidiaries which in such counsel's opinion
would be likely to result in a judgment or decree having a material
adverse effect on the business or financial position of the Company and
its subsidiaries as a whole or be required to be disclosed in the
Registration Statement which is not disclosed and accurately summarized
in the Prospectus;
(iv) This Agreement (and any applicable Terms Agreement) has
been duly authorized, executed and delivered by the Company;
(v) The Securities have been duly authorized and, when the terms
of any Securities have been established in accordance with the Indenture
and so as not to violate any applicable law or agreement or instrument
then binding on the Company and such Securities have been duly executed,
authenticated, issued and delivered by the Company, such Securities will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; and the Indenture conforms
and the Securities will conform in all material respects to the
descriptions thereof in the Prospectus;
(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
12
proceeding in equity or at law; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any agreement or instrument known to such counsel to
which the Company or Caterpillar is a party or by which the Company or
Caterpillar is bound, and which conflicts, breaches and defaults, if
any, would individually or in the aggregate have a material adverse
effect on the business or financial position of the Company and its
subsidiaries as a whole; nor will such action result in any violation of
the provisions of the Certificate of Incorporation or the By-Laws of the
Company, the General Corporation Law of the State of Delaware or any
statute of the United States of America or the State of New York or any
rule or regulation thereunder (provided that no opinion need be
expressed in this paragraph as to compliance with the Act, the Trust
Indenture Act, the Exchange Act, the Commodity Exchange Act (and the
rules and regulations of the Commodity Futures Trading Commission
thereunder) or Delaware or New York securities laws, or with the
Bankruptcy Code of 1978, as amended, with respect to any proceeding in
which the Company is the debtor) or, to such counsel's knowledge, any
order of any court or governmental agency or body of the United States
of America or the State of Delaware; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities by the Company or the consummation by the Company of
the other transactions contemplated by this Agreement or any Terms
Agreement or the Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
Delaware securities or state securities laws in connection with the
issue and sale of the Securities;
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no opinion
or belief), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Act or the
Exchange Act and the rules and regulations of the Commission thereunder;
and
(ix) The Registration Statement, as of the date on which any
part thereof became effective, and the Prospectus, as of the date of
such opinion (other than the financial statements and related schedules
and other financial data therein, as to which such counsel need express
no opinion or belief) complied or complies as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder.
13
In addition, such counsel shall state that while they make no
representation that they have independently verified the accuracy or
completeness of the information contained in the documents incorporated by
reference in the Prospectus, they have no reason to believe that any of such
documents (other than the financial statements and related schedules and other
financial data therein, as to which they need express no opinion or belief),
when they were so filed, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading, in each case after excluding any
statement in any such documents which does not constitute part of the
Registration Statement or Prospectus pursuant to Rule 412 of Regulation C under
the 1933 Act. Further, such counsel shall state that while they make no
representation that they have independently verified the accuracy or
completeness of the information contained in the Registration Statement and the
Prospectus (other than the statements made in the Prospectus under the captions
"Description of Notes," "Supplemental Plan of Distribution," "Description of
Debt Securities We May Offer" and "Plan of Distribution," in each case insofar
as they relate to the provisions of documents therein described, and other than
the statements made in the Prospectus under the caption "Certain United States
Federal Income Tax Consequences" insofar as they relate to United States federal
income tax matters), they have no reason to believe that any part of the
Registration Statement, insofar as relevant to the offering of the Securities,
as of the date on which such part became effective, or the Prospectus, as of the
date of such opinion (other than the financial statements and related schedules
and other financial data therein, as to which they need express no opinion or
belief), contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case after excluding any
statement in any such document which does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule 412 of Regulation C
under the 1933 Act; and they do not know of any contracts or other documents of
a character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
(d) At 11:00 a.m., New York City time, on the Closing Date or on any
applicable date referred to in Section 4(j), as the case may be, the independent
accountants who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
shall have furnished to you a letter, dated the Closing Date or such applicable
date, in form and substance satisfactory to you, to the effect set forth in
Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained after the date of the latest audited financial statements included or
incorporated by reference in the Prospectus and (A) prior to the Closing Date,
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented through the
date of this Agreement and (B) prior to each Time of Delivery, any such material
loss or interference, otherwise than as set forth or contemplated in the
Prospectus as amended and supplemented through the date of each acceptance of an
offer to purchase Securities hereunder (including any
14
purchase by an Agent as principal and not pursuant to a Terms Agreement) or of
any corresponding Terms Agreement, and (ii) since the respective dates as of
which information is given in the Prospectus as amended or supplemented and (A)
prior to the Closing Date, there shall not have been any material change in the
capital stock or any material increase in the consolidated long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or supplemented
through the date of this Agreement and (B) prior to each Time of Delivery, there
shall not have been any such material change or development, otherwise than as
set forth or contemplated in the Prospectus as amended and supplemented through
the date of each acceptance of an offer to purchase Securities hereunder
(including any purchase by an Agent as principal and not pursuant to a Terms
Agreement) or of any corresponding Terms Agreement, the effect of which, in any
such case described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with your
solicitation of offers to purchase Securities from the Company or your purchase
of Securities from the Company as principal, as the case may be;
(f) The Company shall have furnished or caused to be furnished to you a
certificate of officers of the Company satisfactory to you, dated the Closing
Date or any applicable date referred to in Section 4(h), as the case may be, as
to the accuracy of the representations and warranties of the Company herein at
and as of the Closing Date or such applicable date, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Closing Date or such applicable date, as to the matters set forth in subsections
(a) and (e) of this Section 6, and as to such other matters as you may
reasonably request; and
(g) During the period in which you are soliciting offers to purchase
Securities, including the period between the date of any acceptance of an offer
to purchase Securities hereunder (including any purchase by an Agent as
principal and not pursuant to a Terms Agreement) or of any Terms Agreement and
the related Time of Delivery, there shall not have occurred any of the
following: (i) trading in any securities of the Company or Caterpillar 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; (ii) a
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States or, if the 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; (iii) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, or the occurrence of any other
calamity or crisis, or any change or development involving a prospective change
in the financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in this clause (iii) in
your judgment makes it impracticable or inadvisable to proceed with your
solicitation of offers to purchase Securities or your purchase of Securities
from the Company as principal, pursuant to the applicable Terms Agreement or
otherwise, as the case may be; or (iv) any downgrading in the rating accorded
the Company's debt securities by Xxxxx'x Investors Service, Inc. or Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or a public announcement
by either such organization that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities.
15
7. (a) The Company will indemnify and hold you harmless against any
losses, claims, damages or liabilities, joint or several, to which you may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus as amended or supplemented, and any other prospectus relating to the
Securities or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Agent for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by you expressly
for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall not be liable to any
Agent under the indemnity agreement in this subsection (a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability results from the fact that such Agent sold Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such Agent.
(b) Each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified
16
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the contributing Agent on the other from the
offering of the Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the indemnification provided
for in this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, or
if the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the contributing Agent on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the contributing Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the Company bear to the total
commissions or discounts received by the contributing Agent in respect thereof.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by the
contributing Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the contributing Agent agree that it would not be just
and equitable
17
if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities purchased by or
through such Agent were sold exceeds the amount of any damages which such Agent
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and each Agent's obligations under this
Section 7 shall be in addition to any liability which such Agent may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
8. In soliciting offers by others to purchase Securities from the
Company, each Agent is acting solely as an agent for the Company, and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase for any reason is not consummated. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall hold each Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company.
9. The respective indemnities, agreements, representations, warranties
and other statements by you and the Company set forth in or pursuant to this
Agreement, shall remain in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any of you
or the Company or any of its officers or directors or any controlling person,
and shall survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase the Securities may be suspended or terminated at any time by
the Company as to any or all Agents or by any Agent insofar as this Agreement
relates to such Agent, upon the giving of written notice of such suspension or
termination to the other parties hereto. In the event of any such suspension or
termination, no party shall have any liability to the other party hereto, except
as provided in the third paragraph of Section 2(a), Section 5, Section 7,
Section 8 and Section 9 and except that, if at the time of such suspension or
termination, an offer for the purchase of Securities shall have been accepted by
the Company but the delivery of the Securities relating thereto to the purchaser
or his agent shall not yet have occurred, the Company shall have the
18
obligations provided in subsections (d), (g), (h), (i) and (j) of Section 4. In
addition, if any such termination of this Agreement shall occur at a time when
any Agent shall own any of the Securities purchased from the Company with the
intention of reselling them, the obligations of the Company under Section 4
shall also remain in effect so long as such Agent owns any of such Securities.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to [Agent], shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to [_______________________],
Facsimile Transmission No. [________], Attention: [_________]; and if to the
Company shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to Caterpillar Financial Services Corporation,
0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Facsimile Transmission
No. (000) 000-0000, Attention: General Counsel.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each of you and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any of you or the Company,
and your respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any of you shall be deemed a successor or assign by reason of such
purchase.
13. This Agreement and any Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
14. Time shall be of the essence in this Agreement and any Terms
Agreement.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
19
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and each of you in accordance with its terms.
Very truly yours,
Caterpillar Financial Services Corporation
By:
-------------------------------------
Accepted in New York, New York,
as of the date hereof:
[Agent]
By:
-------------------------------
Name:
Title:
[Agent]
By:
-------------------------------
Name:
Title:
[Agent]
By:
-------------------------------
Name:
Title:
ANNEX I
Caterpillar Financial Services Corporation
TERMS AGREEMENT
---------- --, ----
[Agent Name]
[Agent Address]
[Agent Name]
[Agent Address]
[Agent Name]
[Agent Address]
Dear Sirs:
Caterpillar Financial Services Corporation (the "Company") proposes,
subject to the terms and conditions stated herein and in the Distribution
Agreement, dated [_______ __, 20__] (the "Distribution Agreement"), between the
Company and [Agent names] to issue and sell to you the securities specified in
the Schedule hereto (the "Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by such
firms, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be part
of this Agreement to the same extent as if such provisions had been set forth in
full herein, provided that for purposes of this Agreement all references in the
Distribution Agreement to "you" or "the Agents" shall be deemed to refer to you
alone. Nothing contained herein or in the Distribution Agreement shall make you
an agent of the Company or make you subject to the provisions therein relating
to the solicitation of offers to purchase securities from the Company, solely by
virtue of your execution of this Terms Agreement. Each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Terms Agreement, except that each representation and warranty
with respect to the Prospectus in Section 1 of the Distribution Agreement shall
be deemed to be a representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended and supplemented to relate to the Purchased
Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with, or in the
case of a supplement, mailed for filing to, the Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you and you agree to purchase from the Company the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us 6 counterparts hereof, and upon acceptance hereof by you of
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Caterpillar Financial Services Corporation
By:
------------------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
[Agent]
By:
-------------------------------
Name:
Title:
[Agent]
By:
-------------------------------
Name:
Title:
[Agent]
By:
-------------------------------
Name:
Title:
I-2
Schedule to Annex I
Title of Purchased Securities:
[ % Notes due ] [Medium-Term Notes]
Specified Currency:
Aggregate principal amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by :
------------------
% of the principal amount of the Purchased
Securities, plus accrued interest from to
[and accrued amortization, if any, from to ]
Specified funds for payment of purchase price:
[New York Clearing House] [same day] funds
Indenture:
Indenture, dated as of April 15, 1985, as supplemented to the date
hereof, between the Company and U.S. Bank Trust National Association, as
successor Trustee.
Maturity:
Denominations (if other than U.S. dollars):
Interest Rate:
[ %] [Specify floating rate provisions]
Interest Payment Dates:
[months and dates]
I-3
[Amortizing Security:
Initial Principal Repayment Date:
Amortization Schedule:]
[Interest Rate Reset:
Optional Reset Date(s):
Basis for Interest Rate Reset:]
[Extension of Maturity:
Extension Period(s):
Final Maturity Date:
Basis for Interest Rate [During Extension]
Listing Requirements:
Time of Delivery:
Closing Location:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered:
[(1) The officers' certificate referred to in Section 4(h).]
[(2) The opinion referred to in Section 4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
Syndicate Provisions:
[Set forth any provisions relating to underwriters' default and step-up
of amounts to be purchased by underwriters acting with _______________________.]
Other Provisions:
I-4
ANNEX II
CATERPILLAR FINANCIAL SERVICES CORPORATION
Administrative Procedure
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated [_________ __, 20__] (the "Distribution
Agreement"), between Caterpillar Financial Services Corporation (the "Company")
and [Agent names] (each, individually, an "Agent" and, collectively, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus, as amended or
supplemented, or the Indenture. To the extent any procedure set forth below
conflicts with the provisions of the Securities, the Indenture or the
Distribution Agreement, the relevant provisions of the Securities, the Indenture
and the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. Part I describes procedures of general applicability
with respect to such Securities. Part II describes procedures specifically and
exclusively applicable (any procedure in Part I below to the contrary
notwithstanding) to such Securities which are Global Securities. Part III
describes procedures specifically applicable to such Securities which are
Certificated Securities. The terms and settlement details related to a purchase
of Securities by an Agent, as principal, from the Company will be set forth in a
Terms Agreement pursuant to the Distribution Agreement. An Agent, in relation to
a purchase of a Security by a purchaser solicited by such Agent, is referred to
herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons
representing the Company with whom such Agent is to communicate regarding offers
to purchase Securities and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a permanent global certificate (a "Global Certificate")
delivered to the Issuing Agent, as agent for The Depository Trust Company (the
"Depositary") or, a certificate issued in definitive form without coupons (a
"Certificated Security") as set forth in the applicable Pricing Supplement. Each
security which is represented by a Global Certificate is referred to herein as a
"Book-Entry Security" (it being understood that only such Global Certificate --
and not any such Book-Entry Security represented thereby -- constitutes a
"Security" under the Indenture).
The Company has appointed U.S. Bank Trust National Association (formerly
First Trust of New York, National Association) ("U.S. Bank Trust"), successor
trustee under the Indenture (the "Trustee"), as Calculation Agent (the
"Calculation Agent"), as Determination Agent and as Exchange Rate Agent (the
"Exchange Rate Agent") for the Securities. In addition, the Company has
appointed U.S. Bank Trust as Issuing Agent (the "Issuing Agent") in connection
with certain procedures to be followed with respect to the settlement of sales
of Securities as set forth in this Administrative Procedure.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Securities that may be
sold as a result of the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Securities as a Purchasing Agent (in
such capacity, a "Purchasing Agent"). The Company will have the sole right to
accept offers to purchase Securities and may reject any such offer in whole or
in part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Securities. If the Company accepts an offer to purchase Securities, it will
confirm such acceptance in writing to the Selling Agent or Purchasing Agent, as
the case may be, and the Issuing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Security, it will prepare
a Pricing Supplement. The Company will send a copy of such Pricing Supplement to
the Selling Agent or Purchasing Agent, as the case may be, not later than 5:00
p.m., New York City time, on the business day following the date of acceptance
of such offer, or if the Company and the purchaser agree to settlement of such
Security on the date of such acceptance, not later than noon, New York City
time, on such date. In addition, if [Agent name] is Selling Agent or Purchasing
Agent, the Company will send at least one copy of such Pricing Supplement, to
arrive not later than 11:00 a.m., New York City time, on the business day in New
York following the date of acceptance of such offer, by facsimile transmission
or registered mail to [address], Facsimile Transmission No. (___) ___-____,
Attention: _________. In addition, if [Agent name] is Selling Agent or
Purchasing Agent, the Company will send at least one copy of such Pricing
Supplement, to arrive not later than 11:00 a.m., New York City time, on the
business day in New York following the date of acceptance of such offer, by
facsimile transmission or registered mail to [address], Facsimile Transmission
No. (___) ___-____, Attention: _____________. The Company will arrange to have
the Pricing Supplement filed with the Commission via XXXXX not later than the
close of business of the Commission on the second business day following the
earlier of the date of the determination of the offering price or the date on
which such Pricing Supplement is first used.
II-2
Delivery of Confirmation and
Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Security a written
confirmation of the sale and delivery and payment instructions. In addition, the
Selling Agent will deliver to such purchaser or its agent the Prospectus as
amended or supplemented (including the Pricing Supplement) in relation to such
Security prior to or together with the earlier of the delivery to such purchaser
or its agent of (a) the confirmation of sale (including, in the case of a
Book-Entry Security, the confirmation through the Depositary's Institutional
Delivery System) or (b) the Security.
Business Day:
"Business Day" means (a) with respect to any note, any day that is not a
Saturday or Sunday and that, in the City of New York, is not a day on which
banking institutions generally are authorized or required by law, regulation or
executive order to close, (b) if the note is denominated in a specified currency
other than United States dollars, not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in the
principal financial center of the country issuing the specified currency (but if
the specified currency is the Euro, the day must also be a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open), and (c) with respect to LIBOR notes only, a London Business
Day. As used in the preceding sentence, "principal financial center" means the
capital city of the country issuing the specified currency, or the capital city
of the country to which the LIBOR Currency relates, except that with respect to
United States dollars, Australian dollars, Canadian dollars, South African rand
and Swiss francs, the "principal financial center" shall be the City of New
York, Sydney (and solely in the case of the LIBOR Currency, Melbourne), Toronto,
Johannesburg and Zurich, respectively. "London Business Day" means any day on
which commercial banks are open for business, including dealings in the LIBOR
Currency, in London. "LIBOR Currency" means, with respect to any notes, the
currency (including composite currencies) specified in the Pricing Supplement
applicable to such notes as the currency for which LIBOR shall be calculated;
provided, that if no such currency is specified in such Pricing Supplement, the
LIBOR Currency shall be United States dollars.
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY
SECURITIES AND GLOBAL SECURITIES
In connection with the qualification of Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Issuing
Agent and the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with their respective
obligations under a Letter of Representations from the Company and U.S. Bank
Trust, as Trustee and Issuing Agent, to the Depositary, dated [________ __,
20__], and a Medium-Term Note Certificate Agreement, dated January 31, 1991,
between First Trust National Association and the Depositary (the "Certificate
Agreement"), and the obligations of U.S. Bank
II-3
Trust as a participant in the Depositary, including the Depositary's Same-Day
Funds Settlement System ("SDFS"). It is understood that the ownership interests
of purchasers of Book-Entry Securities will be credited to the book-entry
accounts of one or more participants in the Depositary (each a "Participant") in
accordance with the Depositary's customary practices and reflected in the
records of such Participants or one or more indirect participants in the
Depositary designated by such purchasers in accordance with the arrangements
between such purchasers and such Participants and indirect participants.
Issuance: All fixed rate securities which are Book-Entry Securities
and have the same original issue date, redemption
provisions, interest payment dates, interest rate, interest
payment periods, specified currency, stated maturity and
other terms, if any (collectively, the "Fixed Rate Terms"),
will be represented by a single Global Certificate in fully
registered form without coupons; and all floating rate
Securities which are Book-Entry Securities and have the same
Original Issue Date, redemption provisions, interest payment
dates, interest payment periods, interest rate basis or
bases, initial interest rate, index maturity, spread or
spread multiplier, if any, minimum interest rate, if any,
maximum interest rate, if any, specified currency, stated
maturity and other terms, if any (collectively, the
"Floating Rate Terms"), will be represented by a single
Global Certificate in fully registered form without coupons.
Identification: The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. (the "CUSIP Service Bureau"), for the reservation of
approximately 900 CUSIP numbers which have been reserved for
future assignment and relating to Book-Entry Securities, and
the Company has delivered to the Issuing Agent and the
Depositary such list of such CUSIP numbers. The Company will
assign CUSIP numbers to Book-Entry Securities as described
below under Settlement Procedure C. The Depositary will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Book-Entry
Securities. The Issuing Agent will notify the Company at any
time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Securities, and, if it deems
necessary, the Company will reserve additional CUSIP numbers
for assignment to Book-Entry Securities.
Upon obtaining such additional CUSIP numbers, the Company
will deliver a list of such additional numbers to the
Issuing Agent and the Depositary. Book-Entry Securities
having an aggregate principal amount in excess of
$500,000,000 and otherwise required to be represented by the
same Global Certificate will instead be represented by two
or more Global Certificates which shall all be assigned the
same CUSIP number.
II-4
Registration: Each Global Certificate will be registered in the name of
Cede & Co., as nominee for the Depositary, on the Security
Register maintained by the Trustee under the Indenture. On
the first Business Day of each month, the Trustee will
deliver to the Company a written statement indicating the
total principal amount of Outstanding Book-Entry Securities
as of the immediately preceding Business Day.
Transfers: Transfers of interests in a Book-Entry Security will be
effected in accordance with arrangements in effect between
Participants (and in certain cases, one or more indirect
participants in the Depositary) and the beneficial
transferors and beneficial transferees of such Book-Entry
Security, and the interests of Participants therein will be
reflected as appropriate by book entries made by the
Depositary.
Exchanges: The Issuing Agent may deliver to the Depositary and the
CUSIP Service Bureau at any time a written notice specifying
(a) the CUSIP numbers of two or more Global Certificates (i)
having the same Fixed Rate Terms or Floating Rate Terms, as
the case may be (except that Original Issue Dates need not
be the same), (ii) for which interest (if any) has been paid
to the same date and (iii) which otherwise constitute
Securities of the same series and tenor under the Indenture;
(b) a date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the next
interest payment date (if any) for such Book-Entry
Securities, on which such Global Certificates shall be
exchanged for a single replacement Global Certificate; and
(c) a new CUSIP number to be assigned to such replacement
Global Certificate. Upon receipt of such a notice, the
Depositary will send to its Participants (including the
Issuing Agent) a written reorganization notice to the effect
that such exchange will occur on such date. Prior to the
specified exchange date, the Issuing Agent will deliver to
the CUSIP Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global
Certificates to be exchanged will no longer be valid. On the
specified exchange date, the Issuing Agent will exchange
such Global Certificates for a single Global Certificate
authenticated by the Trustee and bearing the new CUSIP
number, and the CUSIP numbers of the exchanged Global
Certificates will, in accordance with CUSIP Service Bureau
procedures, be retired and not reassigned. Notwithstanding
the foregoing, if the Global Certificates to be exchanged
exceed $500,000,000 in aggregate principal amount, one
replacement Global Certificate will be authenticated and
issued to represent each $500,000,000 of principal amount of
the exchanged Global Certificates and an additional Global
Certificate will be authenticated and issued to represent
any remaining principal amount of such Global Certificates
(see "Denominations" below).
II-5
Denominations: Book-Entry Securities denominated in U.S. dollars will be
issued in denominations of $1,000 and any larger
denomination which is an integral multiple of $1,000. Global
Certificates will be denominated in principal amounts not in
excess of $500,000,000. If one or more Book-Entry Securities
having an aggregate principal amount in excess of
$500,000,000 would, but for the preceding sentence, be
represented by a single Global Certificate, then one Global
Certificate will be issued to represent each $500,000,000
principal amount of such Book-Entry Security or Book-Entry
Securities and an additional Global Certificate will be
issued to represent any remaining principal amount of such
Book-Entry Security or Book-Entry Securities. In such a
case, each of the Global Certificates representing such
Book-Entry Security or Securities shall be assigned the same
CUSIP number.
Book-Entry Securities denominated in currencies or currency
units other than U.S. dollars shall be issued in the
denominations set forth in the relevant Pricing Supplement.
Interest: General. The Depositary will arrange for each pending
deposit message described under Settlement Procedure
C below to be transmitted to Standard & Poor's, a division
of The XxXxxx-Xxxx Companies, Inc., which will use the
message to include certain information regarding the related
Book-Entry Securities in the appropriate daily bond report
published by Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc.
Notice of Interest Payments and Regular Record Dates.
Promptly after the amount of interest to be paid on the
following interest payment date is determined for Book-Entry
Securities which are floating rate notes, the Issuing Agent
will notify Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., of such amount of interest.
II-6
Payments of Payments of Interest Only. Promptly after each Regular
Principal and Record Date, the Issuing Agent will deliver to the Company
Interest: and the Dividend Department of the Depositary a written
notice specifying by CUSIP number the amount of interest (if
any) per $1,000 principal amount to be paid on each
Book-Entry Security on the following interest payment date
(other than an interest payment date coinciding with the
Maturity of such Security) and the total of such amounts.
The Depositary will confirm the amount payable (if any) on
each Book-Entry Security on such interest payment date by
reference to the daily bond reports published by Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. On
such interest payment date, the Company will pay to the
Trustee, and the Trustee in turn will pay to the Depositary,
such total amount of interest due (other than at Maturity of
such Security), at the times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity. On or about the first Business Day of
each month, the Trustee will deliver to the Company and the
Depositary, to the extent then known, a written list of
principal, premium, if any, and interest to be paid on each
Book-Entry Security maturing at stated maturity, on a
repayment date or on a Redemption Date ("Maturity") in the
following month. The Trustee, the Company and the Depositary
will confirm the amounts of such principal, premium (if any)
and interest payments with respect to each such Book-Entry
Security on or about the fifth Business Day preceding the
Maturity of such Book-Entry Security. At such Maturity, the
Company will pay to the Trustee, and the Trustee in turn
will pay to the Depositary, the principal amount of such
Book-Entry Security, together with interest and premium, if
any, due at such Maturity, at the times and in the manner
set forth below under "Manner of Payment". Promptly after
payment to the Depositary of the principal, interest and
premium, if any, due at the Maturity of all Book-Entry
Securities represented by a particular Global Certificate,
the Trustee will cancel such Global Certificate.
II-7
Manner of Payment. The total amount of any principal,
premium and interest due on Book-Entry Securities on any
interest payment date or at Maturity shall be paid by the
Company to the Trustee, in funds immediately available for
use by the Trustee as of 11:00 a.m., New York City time, on
such date. The Company will make such payment on such
Book-Entry Securities by wire transfer to the Trustee or, if
acceptable to the Trustee, by instructing the Trustee to
withdraw funds from an account maintained by the Company at
the Trustee. The Company will confirm such instructions in
writing to the Trustee. For principal payments at Maturity,
prior to 10:00 a.m., New York City time, on such Maturity or
as soon as possible thereafter, the Trustee will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously specified by the
Depositary) to an account at the Federal Reserve Bank of New
York previously specified by the Depositary, in funds
available for immediate use by the Depositary, each payment
of interest, principal and premium, if any, due on
Book-Entry Securities on such date; and for interest
payments, the Trustee will pay the Depositary in same-day
funds on the interest payment date in accordance with
existing arrangements between the Trustee and the
Depositary. Thereafter on each such date, the Depositary
will pay, in accordance with its SDFS operating procedures
then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names
such Book-Entry Securities are recorded in the book-entry
system maintained by the Depositary. Once payment has been
made to the Depositary, neither the Company nor the Trustee
shall have any responsibility or liability for the payment
by the Depositary of the principal of, or premium, if any,
or interest on, the Book-Entry Securities to such
Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Security will be determined and withheld by the
Participant, indirect participant in the Depositary or other
Person responsible for forwarding payments and materials
directly to the beneficial owner of such Book-Entry
Security, or as applicable laws may otherwise require.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Security sold by each Agent, as agent of the Company, will
be as follows:
A. After the acceptance of an offer by the Company
with respect to a Book-Entry Security, the Selling
Agent or Purchasing Agent, as the case may be,
will communicate the following details of the
terms of such offer (the "Book-Entry Sale
Information") to the Company by telephone
(confirmed in writing) or by facsimile
transmission or other acceptable written means:
II-8
(1) Principal amount of the Book-Entry
Security to be purchased;
(2) If a fixed rate Security, the interest
rate;
(3) maturity date;
(4) specified currency and, if the specified
currency is other than U.S. dollars, the
applicable exchange rate for such
specified currency;
(5) issue price;
(6) Selling Agent's commission or Purchasing
Agent's discount, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a Security redeemable by the Company,
such of the following as are applicable:
(i) Redemption Date(s), and
(ii)Redemption Price applicable to each
Redemption Date;
(10) If a Security repayable at the option of
the Holder, such of the following as are
applicable:
(i) Repayment Date(s), and
(ii) Repayment Price applicable to each
Repayment Date;
(11) If a floating rate Security, such of the
following as are applicable:
(i) interest rate basis or bases,
(ii) index maturity,
(iii) spread or spread multiplier,
(iv) minimum interest rate,
(v) maximum interest rate,
(vi) initial interest rate,
(vii) interest reset dates,
(viii) calculation dates,
(ix) interest determination dates,
(x) interest payment dates,
(xi) Interest Payment Period,
II-9
(xii) interest reset period,
(xiii) LIBOR Currency, and
(xiv) Calculation Agent;
(12) If an Amortizing Security:
(i) Initial Principal Repayment Date,
(ii) Amortization Schedule;
(13) If interest rate reset option:
(i) Optional Reset Date(s),
(ii) Basis for interest rate reset;
(14) If extension of Maturity option:
(i) extension period(s),
(ii) final maturity date,
(iii) Basis for interest rate during
extension;
(15) original issue discount provisions, if
any;
(16) Name, address and taxpayer
identification number of the registered
owner; and
(17) Denomination of certificates to be
delivered at settlement; and
(18) Any other terms of the Security.
B. Upon receiving the Book-Entry Sale Information
from the Selling Agent or the Purchasing Agent, as
the case may be, the Company will advise the
Issuing Agent by telephone (confirmed by the
Company's communication of the CUSIP number as
described below under Settlement Procedure C) of
the Book-Entry Sale Information received from the
Selling Agent or the Purchasing Agent, as the case
may be, and the name of such Agent.
II-10
C. The Company will assign a CUSIP number to the
Global Certificate representing such Book-Entry
Security and will communicate such assignment to
the Issuing Agent, which will communicate to the
Depositary, such Agent, Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc., and
Interactive Data Corporation, through the
Depositary's Participant Terminal System, a
pending deposit message (the form of which has
been previously furnished to the Issuing Agent by
the Depositary) specifying the following
settlement information:
(1) The Book-Entry Sale Information.
(2) Identification numbers of the
participant accounts maintained by the
Depositary on behalf of the Issuing
Agent and such Agent.
(3) Identification as a fixed rate Security
or a Floating Rate Security.
(4) Initial interest payment date for such
Security, number of days by which such
date succeeds the related record date
for Depositary purposes (or, in the case
of floating rate notes which reset daily
or weekly, the date five calendar days
preceding such initial interest payment
date) and, if then calculable, the
amount of interest payable on such
initial interest payment date (which
amount shall have been confirmed by the
Company).
(5) CUSIP number of the Global Certificate
representing such Book-Entry Security.
(6) Whether such Global Certificate will
represent any other Book-Entry
Securities issued or to be issued (to
the extent then known).
II-11
D. The Issuing Agent will complete and deliver to the
Trustee a Global Certificate representing such
Book-Entry Security in the form previously
provided by the Company, and the Company will
instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate
such Global Certificate, to register such Global
Certificate in the name of Cede & Co., as nominee
of the Depositary, and to effect delivery thereof
to the Depositary by the Issuing Agent's
possession of such authenticated Global
Certificate as agent for the Depositary.
E. The Trustee will authenticate the Global
Certificate representing such Book-Entry Security
and register such Global Certificate in the name
of Cede & Co., as nominee of the Depositary. The
Issuing Agent will take delivery thereof as agent
for the Depositary.
F. The Depositary will credit such Book-Entry
Security to the participant account of the Issuing
Agent maintained by the Depositary.
G. The Issuing Agent will enter an SDFS deliver order
through the Depositary's Participant Terminal
System instructing the Depositary (i) to debit
such Book-Entry Security to the Issuing Agent's
participant account and credit such Book-Entry
Security to the participant account of the Selling
Agent or the Purchasing Agent, as the case may be,
maintained by the Depositary and (ii) to debit the
settlement account of the Selling Agent or the
Purchasing Agent, as the case may be, and credit
the settlement account of the Issuing Agent
maintained by the Depositary, in an amount equal
to the price of such Book-Entry Security less such
Agent's commission or discount, as the case may
be. Any entry of such a deliver order shall be
deemed to constitute a confirmation by the Trustee
and the Issuing Agent to the Depositary that (i)
the Global Certificate representing such
Book-Entry Security has been issued and
authenticated and (ii) the Issuing Agent is
holding such Global Certificate as agent of the
Depositary pursuant to the Certificate Agreement.
H. The Selling Agent or the Purchasing Agent, as the
case may be, will enter an SDFS deliver
instruction through the Depositary's Participant
Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to the participant
account of such Agent and credit such Book-Entry
Security to the participant accounts of the
Participants with respect to such Book-Entry
Security
II-12
maintained by the Depositary and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent
maintained by the Depositary in an amount equal to
the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures G and H
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Issuing Agent will credit to an account of the
Company maintained at the Issuing Agent, or such
other account as the Company may direct in writing
funds available for immediate use in the amount
transferred to the Issuing Agent in accordance
with Settlement Procedure G.
K. The Issuing Agent will send a copy of the Global
Certificate by first-class mail to the Company
together with a statement setting forth the
principal amount of Securities Outstanding and of
Book-Entry Securities Outstanding as of the
related Settlement Date after giving effect to
such transaction.
L. The Selling Agent or the Purchasing Agent, as the
case may be, will confirm the purchase of such
Book-Entry Security to the purchaser either by
transmitting to the Participants with respect to
such Book-Entry Security a confirmation order
through the Depositary's Participant Terminal
System or by mailing a written confirmation to
such purchaser.
M. Notwithstanding the foregoing, the Selling Agent
shall in all cases take the actions described
under the caption "Delivery of Confirmation and
Prospectus to Purchaser by Selling Agent" in Part
I of this Administrative Procedure, at the time or
times specified under such caption for such
actions.
Settlement For orders of Book-Entry Securities accepted by the
Procedures Company, Settlement Procedures "A" through "L" set forth
Timetable: above shall be completed as soon as possible but not later
than the respective times (New York City time) set forth
below:
II-13
Settlement
Procedure Time
--------- ----
A-B 11:00 a.m. on the trade date (or one hour
following the trade)
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business Day before
Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H 2:00 p.m. on Settlement Date
I 4:45 p.m. on Settlement Date
X-X 5:00 p.m. on Settlement Date
If a sale is to be settled more than one Business Day after
the trade date, Settlement Procedures A, B, and C may, if
necessary, be completed at any time prior to the specified
times on the first Business Day after the trade date. In
connection with a sale which is to be settled more than one
Business Day after the trade date, if the initial interest
rate for a floating rate note is not known at the time that
Settlement Procedure A is completed, Settlement Procedures B
and C shall be completed as soon as such rates have been
determined, but no later than 11:00 a.m. and 2:00 p.m., New
York City time, respectively, on the Business Day before the
settlement date. Settlement Procedure I is subject to
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect
on the settlement date.
If settlement of a Book-Entry Security is rescheduled or
canceled, the Company will as soon as practicable give the
Issuing Agent notice to such effect. The Issuing Agent will
deliver to the Depositary, through the Depositary's
Participant Terminal System, a cancellation message (the
form of which has been previously furnished to the Issuing
Agent by the Depositary) to such effect by no later than
2:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date
(provided the Issuing Agent received such notice from the
Company by noon on the Business Day immediately preceding
the Settlement Date) and in any case as soon as practicable.
A copy of such message will be routed through the facilities
of the Depositary to the Selling Agent and Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
II-14
Failure to Settle: If the Issuing Agent fails to enter in timely fashion an
SDFS deliver order with respect to any portion of a
Book-Entry Security pursuant to Settlement Procedure G, or
if the Selling Agent or the Purchasing Agent, as the case
may be, fails to enter in timely fashion an SDFS deliver
order with respect to such Book-Entry Security pursuant to
Settlement Procedure H, the Company may direct the Issuing
Agent to deliver to the Depositary, through the Depositary's
Participant Terminal System, as soon as practicable, a
withdrawal message (the form of which has been previously
furnished to the Issuing Agent by the Depositary)
instructing the Depositary to debit such Book-Entry Security
to the participant account of the Issuing Agent maintained
at the Depositary. A copy of such message will be routed
through the facilities of the Depositary to such Agent. The
Depositary will process the withdrawal message, provided
that such participant account contains Book-Entry Securities
having the same Fixed Rate Terms or Floating Rate Terms, as
the case may be, having an aggregate principal amount that
is at least equal to the principal amount to be debited. If
withdrawal messages are processed with respect to all the
Book-Entry Securities represented by a particular Global
Certificate, the Issuing Agent will deliver the Global
Certificate to the Trustee, and the Company will instruct
the Trustee to cancel immediately such Global Certificate,
make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Global
Certificate. The CUSIP number assigned to such Global
Certificate shall, in accordance with CUSIP Service Bureau
procedures, be retired and not reassigned. If withdrawal
messages are processed with respect to only a portion of the
Book-Entry Securities represented by a particular Global
Certificate, the Issuing Agent will exchange such Global
Certificate for two Global Certificates authenticated by the
Trustee, one of which shall represent the Book-Entry
Securities for which withdrawal messages are processed and
shall, at the direction of the Company, be canceled by the
Trustee and destroyed immediately after issuance, and the
other of which shall represent the other Book-Entry
Securities previously represented by the surrendered Global
Certificate and shall bear the CUSIP number of the
surrendered Global Certificate. If such failure shall have
occurred for any reason other than default by the Agent in
the performance of its obligations under the Distribution
Agreement, the Company will reimburse such Agent on an
equitable basis for its loss of the use of funds during any
period when the funds were credited to the account of the
Company in connection with such attempted settlement.
If the purchase price for any Book-Entry Security is not
timely paid to the Participants with respect to such
Security by the beneficial purchaser thereof or by a person,
including an indirect participant in the Depositary, acting
on behalf of such purchaser (other than the Purchasing
Agent, if any), such Participants and, in turn, the Selling
II-15
Agent or the Purchasing Agent, as the case may be, may enter
SDFS deliver orders through the Depositary's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures G and H, respectively. Immediately
thereafter, the Company may direct the Issuing Agent to
deliver the withdrawal message and take the related actions
described in the preceding paragraph. If such lack of timely
payment shall have occurred for any reason other than
default by the Agent in the performance of its obligations
under the Distribution Agreement, the Company will reimburse
such Agent on an equitable basis for its loss of the use of
funds during any period when the funds were credited to the
account of the Company in connection with such attempted
settlement.
Notwithstanding the foregoing, upon any failure to settle
with respect to any portion of a Book-Entry Security, the
Depositary may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a
failure to settle with respect to any portion of a
Book-Entry Security that was to have been represented by a
Global Certificate also representing other Book-Entry
Securities, the Issuing Agent and, if applicable, the
Trustee will provide, in accordance with Settlement
Procedures D and E, for the authentication and issuance of a
Global Certificate representing the remaining principal
amount to have been represented by such Global Certificate
and will make appropriate entries in its records.
Issuing Agent and Nothing herein will be deemed to require the Issuing Agent
Trustee Not or the Trustee to risk or expend its own funds in connection
to Risk Funds: with any payment to the Company, the Agents, the Depositary
or any Securityholder, it being understood by all parties
that payments made by the Issuing Agent or the Trustee to
any party will be made only to the extent that funds are
provided to the Issuing Agent, or the Trustee, as the case
may be, for such purpose.
II-16
PART III: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED
SECURITIES
Currency:
Each note in certificated form shall be denominated in the currencies or
currency units specified in the relevant Pricing Supplement. Notes denominated
in other than U.S. dollars are herein referred to as "Multi-Currency Notes".
Denominations:
Notes denominated in other than U.S. dollars will be issuable in
denominations as set forth in the relevant Pricing Supplement.
Payments of Principal and Interest:
For provisions relating to notes denominated in a foreign currency or
composite currency or currencies, see the applicable Supplement to the
Prospectus.
Communication of Sale Information
to Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Securities to be purchased;
(2) If a fixed rate Security, the interest rate;
(3) Maturity date;
(4) specified currency and, if the specified currency
is other than U.S. dollars:
(i) Applicable exchange rate for such
specified currency, and
(ii) Authorized denominations;
(5) issue price;
(6) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date and settlement place;
II-17
(9) If a redeemable Security, such of the following as
are applicable:
(i) Redemption Date(s), and
(ii) Redemption Price applicable to each
Redemption Date;
(10) If a Security repayable at the option of the
Holder, such of the following as are applicable:
(i) Repayment Date(s), and
(ii) Repayment Price applicable to each
Repayment Date;
(11) If a Floating Rate Security, such of the following
as are applicable:
(i) interest rate basis or bases,
(ii) index maturity,
(iii) spread or spread multiplier,
(iv) maximum interest rate,
(v) minimum interest rate,
(vi) initial interest rate,
(vii) interest reset dates,
(viii) calculation dates,
(ix) interest determination dates,
(x) interest payment dates,
(xi) interest payment period,
(xii) interest reset period,
(xiii) LIBOR currency, and
(xiii) Calculation Agent;
(12) If an Amortizing Security:
(i) initial principal repayment date,
(ii) amortization schedule;
(13) If interest rate reset option:
(i) optional reset date(s),
(ii) Basis for interest rate reset;
(14) If extension of Maturity option:
(i) extension Period(s),
(ii) final maturity date,
(iii) Basis for interest rate during
extension;
(15) original issue discount provisions, if any;
(16) Name, address and taxpayer identification number
of the registered owner; and
II-18
(17) Denomination of certificates to be delivered at
settlement; and
(18) Any other terms of the Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing Agent
and accepted by the Company will be settled on a date (the "Settlement Date" or
"Original Issue Date") which is the third business day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on any other business day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
Instruction from the Company to
Issuing Agent for Preparation of Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Issuing Agent by telephone (confirmed in writing) or by
facsimile transmission or other acceptable electronic or written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable electronic or written means to authenticate and deliver the
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the business day prior to the Settlement Date unless the Settlement
Date is the date of acceptance by the Company of the offer to purchase
Securities in which case such instruction will be given by the Company by 11:00
a.m., New York City time. The Trustee will authenticate and deliver to the
Issuing Agent each Security in accordance with the Company's instruction.
Preparation and Delivery of Securities
by Issuing Agent and Receipt of Payment Therefor:
The Issuing Agent will prepare each Security and appropriate receipts
that will serve as the documentary control of the transaction.
In the case of a sale of Securities to a purchaser solicited by an
Agent, the Issuing Agent will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Securities to the Selling Agent for the benefit of
the purchaser of such Securities against delivery by the Selling Agent of a
receipt therefor. On the Settlement Date the Selling Agent will deliver payment
for such Securities in immediately available funds to the Company in an amount
equal to the issue price of the Securities less the Selling Agent's commission;
provided that the Selling Agent reserves the right to withhold payment for which
it has not received funds from the purchaser. The Company shall not use any
proceeds advanced by a Selling Agent to purchase securities or carry any
securities in violation of Regulations G, T, U or X of the Federal Reserve Board
or otherwise in violation of law.
In the case of a sale of Securities to a Purchasing Agent, the Issuing
Agent will, by 2:15
II-19
p.m., New York City time, on the Settlement Date, deliver the Securities to the
Purchasing Agent against delivery of payment for such Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Security, the Selling Agent will promptly notify the
Issuing Agent, the Trustee and the Company's Treasurer thereof by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means. The Selling Agent will immediately return the Security to the Issuing
Agent. Immediately upon receipt of such Security by the Issuing Agent, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Security. If such failure
shall have occurred for any reason other than default by the selling Agent in
the performance of its obligations under the Distribution Agreement, the Company
will reimburse the Selling Agent on an equitable basis for its loss of the use
of funds during the period when they were credited to the account of the
Company.
The Issuing Agent will deliver to the Trustee for cancellation the
Security in respect of which the failure occurred, and instruct the Trustee to
make appropriate entries in its records and, unless otherwise instructed by the
Company, to destroy the Security.
II-20
ANNEX III
Pursuant to Section 6(d) of the Distribution Agreement, the Company's
independent public accountants shall furnish letters to you to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited by them and included
or incorporated by reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the published rules and regulations thereunder; and if
applicable, they have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the consolidated
interim financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to you;
(iii) In their opinion, the unaudited selected financial
information, if any, with respect to the consolidated results of operations and
financial position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 2 of the
Company's Form 10 or Item 6 of the Company's Annual Report on Form 10-K for the
most recent fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the Company's
Form 10 or Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, a reading of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the Company and
its subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of officials
of the Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of profit,
consolidated statements of financial position and consolidated
statements of cash flows included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder or that any material
modifications should be made to such financial statements for them to be
in conformity with generally accepted accounting principles;
(B) any unaudited income statement data and balance sheet items,
if any, included in the Prospectus do not agree with the corresponding
items in the unaudited
consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Form 10 or Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited financial
statements referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to
in Clause (B) were not determined on a basis substantially consistent
with the basis for the audited financial statements included or
incorporated by reference in the Company's Form 10 or Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements, if any, included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published rules
and regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five business days prior
to the date of delivery of such letter, there have been any changes in
the capital stock or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated total
assets or other items specified by you, or any increases in any items
specified by you, in each case as compared with amounts shown in the
latest statement of financial position included or incorporated by
reference in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (D), there were any decreases
in consolidated total revenues or net profit or other items specified by
you, or any increases in any items specified by you, in each case as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by you, except in each
case for decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraphs (iii) and (iv) above, they have carried out certain
specified procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by you which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by you or in
documents incorporated by reference in the Prospectus
III-2
specified by you, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries, and have found them to be in agreement.
All references to the Prospectus in this Annex III shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein), as defined in the Distribution Agreement, as of the Closing
Date referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein), as
defined in such Agreement, as of the date of the amendment, supplement,
incorporation or the Time of Delivery related to the Terms Agreement requiring
the delivery of such letter under Section 4(j) thereof.
III-3
