DISTRIBUTION AGREEMENT
EXHIBIT
99.1
Nashville,
Tennessee
December
16, 2009
Xxxxxxx
Xxxxx & Company, L.L.C.
000 Xxxx
Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
Gentlemen:
Caterpillar
Financial Services Corporation, a Delaware Corporation (the “Company”), proposes
to offer for sale through you (the “Distributor”) as hereinafter set forth the
Variable Denomination Floating Rate Demand Notes (the “Notes”) more fully
described in the Prospectus dated December 15, 2009 (the
“Prospectus”).
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1.
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Representations and
Warranties of the Company
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The
Company represents and warrants to you as follows:
(a) A
registration statement on Form S-3 (File No. 333-163746) in respect of the Notes
has been filed with the Securities and Exchange Commission (the “Commission”) in
the form heretofore delivered or to be delivered to you and such registration
statement in such form has been declared effective by the Commission and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (the various parts of such registration statement, including all
exhibits thereto but excluding Form T-l, each as amended at the time such part
became or becomes effective, being hereinafter collectively called the
“Registration Statement”; the prospectus relating to the Notes, in the form in
which it has most recently been filed, or mailed for filing, with the
Commission, on or prior to the date of this Agreement, being hereinafter called
the “Prospectus”; any reference herein to the Prospectus shall be deemed to
include the documents incorporated by reference therein pursuant to the
applicable form under the Securities Act of 1933, as amended (the “Act”), as of
the date of such Prospectus, as the case may be; any reference to any amendment
or supplement to the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the Exchange Act”), and
incorporated by reference; any reference to the Registration Statement or the
Prospectus shall be deemed to exclude any statement deemed not to be
incorporated by reference therein under Rule 411 of the Act; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in the form in which it is first filed, or
mailed for filing, with the Commission pursuant to Rules 424 or 433 under the
Act, including any documents incorporated by reference therein as of the date of
such filing or mailing).
(b) The
documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and none
of such documents contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case after
excluding any statement in any such document which does not constitute part of
the Registration Statement or the Prospectus pursuant to Rule 411 under the Act,
and any further documents so filed and incorporated by reference in the
Prospectus, when they 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.
(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, 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.
(d) To
the extent required by applicable law or the rules of the Financial Industry
Regulatory Authority (“FINRA”), any sales literature or advertisement used in
addition to the Prospectus in connection with the offer and sale of the Notes to
investors which is prepared by the Company and furnished by us for your use
shall have been filed with and approved by FINRA in accordance with the
applicable rules of FINRA and all applicable state securities authorities. When
delivered to you under the terms of this Agreement, such sales literature or
advertisements and any internal memoranda or material intended “for distributor
use only” and prepared by the Company will not contain an untrue statement of a
material fact.
(e) The
Company is a corporation duly organized pursuant to the laws of the State of
Delaware, and was at all relevant times, validly existing and in good standing
under the laws of the State of Delaware, and has and had all requisite corporate
and other legal power and authority to execute and deliver and to perform all of
its obligations under this Agreement, the Processing Agent Agreement dated July
8, 1991, executed by and between the Company and The Northern Trust Company, as
Agent Bank, and the Prospectus and to carry out the transactions contemplated by
such documents; and such transactions will not violate or result in a default
under any articles of incorporation or other organic documents of the Company or
any agreement, regulation or law to which the Company or its property is
subject. The Company is duly qualified under the laws of each other
jurisdiction, if any, in which the conduct of its business requires such
qualification and the failure so to qualify would result in material adverse
consequences to the Company.
(f) No
consent, approval, authorization, order, registration or qualification of or
with any court or any regulatory authority or other governmental body is
required for the issuance and sale of the Notes or the consummation by the
Company of the transactions contemplated by this Agreement or the Prospectus,
except as may be required under the Act, state securities or Blue Sky laws or
the Rules of Fair Practice of FINRA.
(g) No
action, suit, proceeding, inquiry or investigation at law or in equity or before
or by any public board or body is pending or, to the knowledge of the Company,
threatened in which the Company is a party or of which it has knowledge, nor, to
the knowledge of the Company, is there any basis therefor, which would have any
material adverse effect on the validity or enforceability of this Agreement or
any of the other transactions contemplated by the Prospectus, including any of
the documents or instruments mentioned in any of such documents.
(h) This
Agreement has been duly and validly executed and delivered by the Company, and
constitutes a valid, binding and enforceable agreement of the Company, except
(i) that such agreement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors’ rights, (ii) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought and (iii) as to rights to
indemnity and/or contribution, which may be limited by federal or state
securities or Blue Sky laws or the public policies underlying such
laws.
(i) Except
as contemplated by the Registration Statement and the Prospectus, since the
respective dates as of which information is furnished therein, (i) there has not
been any material adverse change in the condition, financial or otherwise, of
the Company or in the earnings, affairs or business of the Company, whether or
not arising in the ordinary course of business and (ii) there have not been any
transactions into which the Company has entered which are materially adverse to
the offering of the Notes contemplated by this Agreement or the Prospectus or
the performance of the Company hereunder or thereunder.
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2.
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Appointment as
Distributor
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Subject to the Terms and Conditions of
this Agreement, the Company hereby appoints you as its distributor for the
purpose of offering the Notes for sale on a continuous basis, unless such
offering of Notes is terminated by the Company. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, you hereby accept such appointment. In
this capacity you will act as the Company’s agent and follow the Company’s
written or oral instructions in offering or soliciting purchases of the Notes on
behalf of the Company. All sales or solicitations to purchase the
Notes shall be subject to all applicable laws, rules and
regulations.
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3.
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Representations,
Warranties and Agreements of the
Distributor
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You
represent and warrant to, and agree with, the Company for its benefit
that:
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(a) You
are a member in good standing of FINRA and agree to comply with all the
applicable requirements of the Act and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), all of the applicable rules of FINRA, and the
terms of the offering as described in the Registration Statement and the
Prospectus in performing your obligations under this Agreement.
(b) You
agree that you will offer or solicit purchases of Notes only in the states and
other jurisdictions in which counsel to the Company has indicated, in a Blue Sky
Memorandum to be provided to you, that such solicitations can be made, and the
terms upon which they can be made, and in which you are qualified so to act,
and, in making such solicitations, that you will comply with any other
applicable state securities or Blue Sky laws.
(c) You
will not give any information or make any representations in connection with the
offer and sale of the Notes other than those contained in the Prospectus or any
supplements thereto, or in sales literature or advertisements or internal
memoranda or material included “for distributor use only”, furnished or approved
in writing prior to use by the Company.
(d) You
will sell or solicit offers to buy the Notes as described in the
Prospectus.
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4.
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Covenants of the
Company
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The
Company, covenants and agrees with you for your benefit, as
follows:
(a) The
Company will promptly advise you (confirming such notice in writing) (i) when
any post-effective amendment to the Registration Statement becomes effective,
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information, (iii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order suspending the use of the Prospectus
or the initiation of any proceedings for that purpose, (iv) of the occurrence of
any event during the period set forth in subsection (d) below as a result of
which, in the judgment of the Company, (A) the Prospectus would include 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 were made, not misleading, or (B) the sales literature would include an
untrue statement of a material fact and (v) of the receipt of any notification
with respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will make every reasonable effort to prevent the
issuance by the Commission of an order suspending the effectiveness of the
Registration Statement. If at any time the Commission shall issue any
such order, the Company will make every reasonable effort to obtain the
withdrawal of such order as promptly as possible.
(b) From
time to time so long as a Prospectus is required to be delivered under the Act,
the Company will deliver to you, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as you may reasonably request.
The Company consents to the use of the Prospectus or any amendment or supplement
thereto by you, both in connection with the offer or sale of the Notes and for
such period of time thereafter as the Prospectus is required by law to be
delivered in connection therewith. If any event occurs which, in the judgment of
the Company, should be set forth in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were
made, not materially misleading, or if in the judgment of the Company it is
necessary to supplement or amend the Prospectus to comply with applicable law,
the Company will promptly prepare and file with the Commission a supplement or
amendment thereto, which will effect such compliance, and will deliver to you,
without charge, such number of copies thereof as you may reasonably
request.
(c) The
Company will notify you as to the jurisdictions in which the Notes are qualified
for offering and sale under the securities and Blue Sky laws of such
jurisdictions.
(d) If
during the period in which a Prospectus is required to be delivered under the
Act an event occurs which, in the judgment of the Company, would require that
any such sales literature be amended or supplemented in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or in order to comply with applicable law, the Company
will promptly notify you in writing of the occurrence of such event, and
thereafter neither the Company nor you shall distribute to investors or
otherwise use any such sales literature unless so amended or
supplemented.
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5.
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Payment of Expenses
and Fees
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The
Company agrees that, whether or not the transactions contemplated in this
Agreement or in the Prospectus are consummated or this Agreement becomes
effective or is terminated, the Company will pay all fees and expenses incident
to the performance of the obligations of the Company under this Agreement,
including, but not limited to, (a) the Commission’s registration fee, (b) the
expenses of printing and distributing the Registration Statement, the Prospectus
and any amendments or supplements thereto and the Blue Sky Survey, if any, (c)
the fees and expenses of counsel for the Company, (d) the fees and expenses of
accountants for the Company, (e) the expenses of qualification of the Notes
under state Blue Sky and securities laws (including counsel fees and expenses),
(f) any filing fees paid or incurred by the Distributor in connection with
filings with FINRA, if any, (g) the cost of preparing and printing the sales
literature and (h) the cost of registering, or amending the registration of, the
Distributor as a broker-dealer under the state Blue Sky and federal securities
laws solely to the extent required for you to perform your obligations under
this Agreement, and other expenses related thereto.
6. Compensation
As
compensation for services rendered under this Agreement for the period from the
Sale hereof through and including June 30, 2007, you shall be entitled to
receive a fee of $100,000, subject to an annual adjustment thereafter as agreed
upon by the parties hereto. Such fee shall be paid in advance in
equal quarterly installments of Twenty Five Thousand Dollars ($25,000) on or
before the first day of July, October, January and March.
7. Indemnification
(a) The
Company agrees to indemnify you and hold you harmless against any losses,
claims, damages on 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 any breach of any warranty or covenant of the Company herein
contained or any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, 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, in light of the circumstances in which made, not
misleading; and agree to reimburse you for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action.
(b) Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
promptly notify the indemnifying party in writing of the commencement
thereof. In case any such action is brought against any indemnified
party, and it notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof.
8. Termination
This
Agreement may be terminated by the Company at any time for any
reason. You may terminate this Agreement on one hundred twenty (120)
days prior written notice. The fee payable under Section 6 shall be
prorated as of the effective date of said termination.
9. Survival of Representations,
Warranties and Agreements
All
representations, warranties and agreements contained in this Agreement shall
remain operative and in full force and effect, regardless of any investigation
made by, or on behalf of, you or by or on behalf of you or by or on behalf of
the Company or any of its officers, directors or controlling persons, and shall
survive any termination of this Agreement for a period of two (2)
years.
10. Notices
Notices
or other communications given pursuant to any of the provisions of this
Agreement shall be given by personal delivery or by registered or certified
mail, telecopy or other method which produces evidence of receipt thereof,
postage or other charges, prepaid, addressed as follows:
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To
the Company:
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0000 Xxxx
Xxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Telecopy: 000-000-0000
To
you:
Xxxxxxx Xxxxx
& Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxx
Telephone:
000-000-0000
Telecopy:
000-000-0000
The
Company or you may each, by notice give to the other as provided in this
Section, designate any different address or telephone or telecopy number to
which subsequent notices or other communications should be sent.
11. Governing
Law
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Illinois.
12. Miscellaneous
This
Agreement has been and is made solely for the benefit of the Distributor, the
Company, and their respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
“successors and assigns” as used in this Agreement shall not include a
purchaser, in his capacity as purchaser, of Notes through the
Distributor.
13. Execution in
Counterparts
This
Agreement and any supplement hereto or amendment hereof may be executed in any
number of counterparts with the same effect as if all signatures were upon the
same instrument. Each of such counterparts, when executed and
delivered, shall for all purposes be deemed to be an original, and all of such
counterparts shall together constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereof have
caused this Agreement to be executed by their respective authorized officers as
of the date first above written.
| Very truly yours, | ||
| CATERPILLAR FINANCIAL SERVICES | ||
| CORPORATION | ||
| By: | /s/Xxxxx X. Xxxxxxxx | |
|
XXXXXXX
XXXXX & COMPANY, LLC
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| By: | /s/Xxxxxx X. Xxxxx | |
