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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
<PAGE>
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 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
Moody's 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):
<TABLE>
<CAPTION>
Fee as a Percentage
Range of Maturities of Principal Amount
------------------- -------------------
<S> <C>
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 [___]%
</TABLE>
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<TABLE>
<S> <C>
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 [___]%
</TABLE>
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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<PAGE>
(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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<PAGE>
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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<PAGE>
(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
<PAGE>
(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 authorized and validly 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
<PAGE>
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 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 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
under applicable federal law or the Delaware General Corporation
Law 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 applicable 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
<PAGE>
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
<PAGE>
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 resu
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