EXHIBIT 1.1
CATERPILLAR FINANCIAL SERVICES CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
July __, 1999
[Underwriter Name]
[Address]
Ladies and Gentlemen:
Caterpillar Financial Services Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell its debt securities (the "Securities") as
shall be designated by the Company from time to time in or pursuant to one or
more offerings on terms to be determined at the time of sale.
Unless otherwise specified in the applicable Terms Agreement (as defined
below), the Securities will be issued in one or more series under an indenture,
dated as of April 15, 1985, as supplemented to the date hereof (the
"Indenture"), between the Company and U.S. Bank Trust National Association, as
successor Trustee (the "Trustee"). Each series of Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, and any other variable terms
established by, or pursuant to, the Indenture.
Whenever the Company determines to make an offering of Securities through
[name of underwriter] ("[name of underwriter]"), or through an underwriting
syndicate managed by [name of underwriter], the Company will enter into an
agreement (each, a "Terms Agreement") providing for the sale of such Securities
to, and the purchase and offering thereof by, [name of underwriter] and such
other underwriters, if any, selected by
[name of underwriter] (the "Underwriters", which term shall include [name of
underwriter], whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to each offering of Securities
shall specify the aggregate principal amount of Securities to be issued (the
"Underwritten Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other than [name of underwriter] acting as co-manager in
connection with such offering, the aggregate principal amounts of Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery of and payment for the Underwritten Securities and any other
material variable terms of the Underwritten Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written communication (including
facsimile) between the Company and [name of underwriter], acting for itself and,
if applicable, as representatives of any other Underwriters. Each offering of
Underwritten Securities through [name of underwriter] as sole Underwriter or
through an underwriting syndicate managed by [name of underwriter] will be
governed by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to [name of underwriter], as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, and
as of the relevant Closing Time (as defined below), as follows:
(1) Compliance with Registration Requirements. A registration
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statement on Form S-3 (Registration No. 333-73083) 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 the
Underwriters, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
included therein (except for any statements in such documents 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 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 (any preliminary
prospectus included in such registration statement being hereinafter called
a "Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-I, each as
amended at the time such part became effective,
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being hereinafter collectively called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus supplement) relating
to the Underwritten Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior to
the date of this Underwriting Agreement, being hereinafter called the
"Prospectus"; any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act as of the date of such Registration
Statement, Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as each time amended or supplemented to relate to
Underwritten Securities sold pursuant to this Underwriting Agreement, in
the form in which it is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Act, including any documents
incorporated therein by reference as of the date of such filing or
mailing).
(2) Preliminary Prospectus. Each Preliminary Prospectus filed as
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part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and each
Preliminary Prospectus delivered to the Underwriters for use in connection
with the offering of Underwritten Securities will, at the time of such
delivery, be identical to the form in which it is filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Act.
(3) Incorporated Documents. The documents incorporated by reference
----------------------
in the Registration Statement or the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 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
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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 Registration Statement or the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the 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
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not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters expressly for use in the Registration Statement or the
Prospectus as amended or supplemented which relates to a particular
issuance of Underwritten Securities.
(4) Registration Statement and Prospectus. The Registration
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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 any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
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shall not apply to any statements or omissions made in reliance upon and in
conformity with the information furnished in writing to the Company by the
Underwriters expressly for use in the Prospectus as amended or supplemented
which relates to a particular issuance of Underwritten Securities.
(5) No Material Adverse Change in Business. Neither the Company nor
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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
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the consolidated long-term debt of the Company or any of its subsidiaries
(other than debt incurred in the ordinary course pursuant to the Company's
medium-term note program) or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(6) Good Standing of the Company. The Company has been duly
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incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases substantial property.
(7) Authorization of Company Capital. The Company has an authorized
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capitalization as set forth in the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and all of such shares are
owned directly or indirectly by Caterpillar, Inc., a Delaware corporation
("Caterpillar"), free and clear of all liens, encumbrances, security
interests or claims.
(8) Authorization of this Underwriting Agreement and the Terms
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Agreement. This Underwriting Agreement has been, and the applicable Terms
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Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Company.
(9) Authorization of Securities; Indenture. The Underwritten
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Securities have been duly authorized, and, when issued and delivered
pursuant to this Underwriting Agreement and any Terms Agreement, such
Underwritten Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and qualified under the Trust Indenture
Act and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Underwritten Securities will conform to the
descriptions thereof in the Prospectus as amended or supplemented to relate
to the Underwritten Securities.
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(10) Absence of Defaults and Conflicts; No Consents Required. The
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issue and sale of the Underwritten Securities and the compliance by the
Company with all of the provisions of the Underwritten Securities, the
Indenture, this Underwriting Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
Caterpillar is a party or by which the Company or Caterpillar is bound or
to which any of the property or assets of the Company or Caterpillar is
subject, including the Support Agreement, dated as of December 21, 1984,
between the Company and Caterpillar, as amended, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or 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 issue and sale of the Underwritten Securities or the
consummation by the Company of the other transactions contemplated by this
Underwriting Agreement, any Terms Agreement or the Indenture, except such
as have been, or will have been prior to the Closing Time (as defined in
Section 2 hereof), obtained under the Act or the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Underwritten Securities by the
Underwriters in the manner contemplated hereby.
(11) Absence of Proceedings. Except as set forth in the Prospectus,
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there is no action, suit or proceeding to which the Company or any of its
subsidiaries is a party pending before or brought by any court, arbitrator
or governmental body, nor is any such action, suit or proceeding to the
knowledge of the Company threatened, in respect of which, in the judgment
of the Company, there is any reasonable likelihood that it will result in a
material adverse change in the condition (financial or other) or business,
or materially affect the properties or assets, of the Company and its
subsidiaries as a whole.
(12) Year 2000 Readiness. The Company has reviewed, and continues to
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review, its operations and those of its subsidiaries and any third parties
with which the Company or any of its subsidiaries has a material
relationship to evaluate the extent to which the business or operations of
the Company or any of its subsidiaries will be affected by the Year 2000
Problem. As a result of such review conducted to date, the Company has no
reason to believe, and does not believe, that the Year 2000 Problem will
have a material adverse effect on the general affairs, management, the
current or future consolidated financial position,
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business prospects, shareholders' equity or results of operations of the
Company and its subsidiaries or result in any material loss or interference
with the Company's business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software used
in the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of dates
or time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made (i) in the case of Securities in
registered form, at the offices of [name], [address], or (ii) in the case of
Securities in bearer form, at the offices of [name], [address], or at such other
place as shall be agreed upon by [name of underwriter] and the Company, at 9:00
A.M. (Eastern time) on the fifth business day after the date of the applicable
Terms Agreement (unless postponed in accordance with the provisions of Section
10 hereof), or such other time not later than ten business days after such date
as shall be agreed upon by [name of underwriter] and the Company (such time and
date of payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
[name of underwriter] for its account or, if applicable, for the respective
accounts of the Underwriters of the Underwritten Securities to be purchased by
them (unless such Underwritten Securities are issuable only in the form of one
or more global securities registered in the name of a depository or a nominee of
a depository, in which event the Underwriters' interest in such global
certificate shall be noted in a manner satisfactory to the Underwriters and
their counsel). It is understood that each Underwriter has authorized [name of
underwriter], for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Underwritten Securities which it has
severally
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agreed to purchase. [Name of underwriter], individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities to be purchased by
any Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Underwritten
Securities shall be in such denominations and registered in such names as [name
of underwriter] may request in writing at least one full business day prior to
the Closing Time. The certificates for the Underwritten Securities will be made
available for examination and packaging by [name of underwriter] in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with [name of
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underwriter], and with each Underwriter participating in the applicable offering
of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify [name of underwriter] immediately,
and confirm the notice in writing, of (i) the effectiveness of any post-
effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus relating to the Underwritten
Securities or effective prior to completion of the distribution of the
Underwritten Securities, (ii) the receipt of any comments from the Commission,
(iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 of the 1933 Act and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give [name of underwriter]
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the ▇▇▇▇ ▇▇▇) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish [name
of underwriter] with copies of any such documents a
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reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which [name of underwriter] or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to [name of underwriter] and counsel for the Underwriters, without
charge, upon request, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to [name of underwriter], without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
Copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1934 Act so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this Underwriting
Agreement and the applicable Terms Agreement and in the Registration Statement
and the Prospectus. If at any time when the Prospectus is required by the 1933
Act or the 1934 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement in order that the Registration Statement will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement
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the Prospectus in order to comply with the requirements of the 1933 Act, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as [name of underwriter] may designate and
to maintain such qualifications in effect for a period of not less than one year
from the date of the applicable Terms Agreement; provided, however, that the
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Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities prior to the Closing Time on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(i) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the later of termination of any trading restrictions, as
notified to the Company by [name of underwriter], or the Closing Time with
respect to the Underwritten Securities, the Company will not, without the prior
written consent of [name of underwriter], directly or indirectly, issue, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of, any
new issue of debt securities of the Company with a maturity of more than nine
months and which are substantially similar to the Underwritten Securities,
including additional Securities (except for (i) any debt securities issued upon
exercise of warrants, (ii) medium-term notes of the Company issued in the
ordinary course of business through [name of underwriter] (A) acting as agent
for the Company or (B) acting as principal and purchasing up to $10 million
aggregate principal amount of medium-term notes of the Company for resale, or
(iii) any debt securities of the Company denominated in a currency other than
the currency in which the
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Underwritten Securities subject to such Terms Agreement shall be denominated) or
any warrants for the purchase of debt securities of the Company with a maturity
of more than nine months.
(j) Reporting Requirements. The Company will file promptly all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the sale of the
Underwritten Securities.
SECTION 4. Payment of Expenses.
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(a) Expenses. Unless otherwise provided in any applicable Terms
Agreement, the Company covenants and agrees with the Underwriters that the
Company will pay or cause to be paid the following: (i) the fees and expenses of
the Company's counsel and accountants in connection with the registration of the
Underwritten Securities under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters; (ii) the
cost of printing or reproducing this Underwriting Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Underwritten Securities; (iii) all expenses in connection with the
qualification of the Underwritten Securities for offering and sale under state
securities laws as provided in Section 3(f) hereof, including fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by security rating services for rating the Underwritten
Securities; (v) the cost of preparing the Underwritten Securities; (vi) the fees
and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Underwritten Securities; (vii) the fees and expenses of any Depositary (as
defined in the Indenture) and any nominees thereof in connection with the
Underwritten Securities; and (viii) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Underwritten Securities so
long as such advertising expenses have been approved by the Company.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by [name of underwriter] in accordance with the provisions of Section
5 or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters named
in such Terms Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
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SECTION 5. Conditions of Underwriters' Obligations. The obligations of
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the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof as of the date hereof and as of the
Closing Time, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. No stop order suspending the
effectiveness of the Registration Statement 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 [name of underwriter]'s reasonable
satisfaction. A prospectus containing information relating to the description
of the Underwritten Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) or (5), as applicable.
(b) Opinion of Counsel for Underwriters. Counsel for the Underwriters
shall have furnished to the Underwriters such opinion or opinions, dated the
Closing Time, with respect to the incorporation of the Company, the validity of
the Indenture, the Underwritten Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as [name of
underwriter] may reasonably request, and such counsel shall have received such
papers and information as [name of underwriter] may reasonably request to enable
them to pass upon such matters.
(c) Opinion of Counsel for Company. Counsel for the Company shall have
furnished to the Underwriters their written opinion, dated the Closing Time, in
form and substance satisfactory to [name of underwriter], to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company's authorized capital stock is as set forth in
the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company
or any of its consolidated subsidiaries which in such counsel's
opinion would be likely to result in a judgment or decree having a
material adverse effect
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on the business or financial position of the Company and its
subsidiaries as a whole or be required to be disclosed in the
Registration Statement which is not disclosed and accurately
summarized in the Prospectus;
(iv) This Underwriting Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by the
Company;
(v) The Underwritten Securities have been duly authorized and,
when the Underwritten Securities have been duly executed,
authenticated, issued and delivered by the Company, such Underwritten
Securities will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture; and
the Indenture conforms and the Underwritten Securities will conform in
all material respects to the descriptions thereof in the Prospectus;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or
other laws relating to or affecting creditors' rights generally, and
to general principles of equity, including without limitation concepts
of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law;
and the Indenture has been duly qualified under the Trust Indenture
Act;
(vii) The issue and sale of the Underwritten Securities and the
compliance by the Company with all of the provisions of the
Underwritten Securities, the Indenture, this Underwriting Agreement
and the applicable Terms Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any agreement or instrument known to such
counsel to which the Company or Caterpillar is a party or by which the
Company or Caterpillar is bound, and which conflicts, breaches and
defaults, if any, would individually or in the aggregate have a
material adverse effect on the business or financial position of the
Company and its subsidiaries as a whole; nor will such action result
in any violation of the provisions of the Certificate of Incorporation
or the By-Laws of the Company or any statute of the United States of
America or the State of Delaware or any rule or regulation thereunder
(provided that no opinion need be expressed in this paragraph
13
as to compliance with the Act, the Trust Indenture Act, the Exchange
Act or the Delaware Securities Act, or with the Bankruptcy Code of
1978, as amended, with respect to any proceeding in which the Company
is the debtor) or, to such counsel's knowledge, any order of any court
or governmental agency or body of the United States of America or the
State of Delaware; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Underwritten Securities by the Company or the consummation by the
Company of the other transactions contemplated by this Underwriting
Agreement or any Terms Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under Delaware securities or Blue Sky laws in
connection with the issue and sale of the Underwritten Securities;
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data therein, as to which such counsel need
express no opinion or belief), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Act or the Exchange Act and the rules and
regulations of the Commission thereunder; and
(ix) The Registration Statement, as of the date on which any
part thereof became effective, and the Prospectus, as of the date of
such opinion (other than the financial statements and related
schedules and other financial and statistical data therein, as to
which such counsel need express no opinion or belief), complied or
complies as to form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and regulations
thereunder.
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 such documents
(other than the financial statements and related schedules and other financial
and statistical 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
14
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", "Underwriting" and
"Description of Debt Securities We May Offer", in each case insofar as they
relate to the provisions of documents therein described), they have no reason to
believe that any part of the Registration Statement, insofar as relevant to the
offering of the Underwritten Securities, as of the date on which such part
became effective, or the Prospectus, as of the date of such opinion (other than
the financial statements and related schedules and other financial and
statistical 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) Accountant's Comfort Letter. At 11:00 A.M., New York City time, on the
date of the Terms Agreement, and at the Closing Time, the independent
accountants who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
shall have furnished to [name of underwriter] a letter, dated such date or the
Closing Time, in form and substance satisfactory to [name of underwriter], to
the effect forth in Annex I hereto.
(e) Officers' Certificate. The Company shall have furnished or caused to
be furnished to [name of underwriter] a certificate of officers of the Company
satisfactory to [name of underwriter], dated the Closing Time, as to the
accuracy of the representations and warranties of the Company herein at and as
of the Closing Time, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Closing Time or such
applicable date, as to the matters set forth in subsection (a) of this Section 5
and subsection (b) of Section 9, and as to such other matters as [name of
underwriter] may reasonably request.
(f) Approval of Listing. Unless stated otherwise in the applicable Terms
Agreement, at Closing Time, the Underwritten Securities shall have been approved
for listing, subject only to official notice of issuance.
(g) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the
15
Underwritten Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities as herein
contemplated shall be satisfactory in form and substance to [name of
underwriter] and counsel for the Underwriters.
(h) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement may be terminated by [name of underwriter] by
notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4(b) and except that Sections 6 and 7 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company will indemnify and hold
each Underwriter harmless against any losses, claims, damages or liabilities,
joint or several, to which any Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus as amended or supplemented, and any other
prospectus relating to the Underwritten Securities or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such action or claim; provided,
--------
however, that the Company shall not be liable in any such case to the extent
-------
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the Underwritten
Securities or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use in the Prospectus as amended or supplemented relating to such
Underwritten Securities; and provided, further, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this subsection (a)
with respect to any Preliminary Prospectus to the extent that any such loss,
claim, damage or liability results from the fact that such Underwriter sold
Underwritten Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) if the
Company has previously furnished copies thereof to such Underwriter.
16
(b) Indemnification of Company. Each Underwriter will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Underwritten Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Underwritten Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim.
(c) Actions against Parties; Notification. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action
17
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) The obligations of the Company under this Section 6 and Section 7
below shall be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and each
Underwriter's obligations under this Section 6 and Section 7 below shall be in
addition to any liability which such Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the meaning
of the Act.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
is unavailable to or insufficient to hold harmless an indemnified party under
Section 6(a) in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Underwritten Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
indemnification provided for in Section 6 is unavailable to or insufficient to
hold harmless an indemnified party under Section 6(b) in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, if the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 6(c), then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of such
Underwritten Securities (before deducting expenses) received by the Company bear
to the total commissions or discounts received by the Underwriters in respect
thereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not
18
take account of the equitable considerations referred to above in this Section
7. The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters to contribute pursuant to this Section 7 are
several in proportion to their respective underwriting commitments, as set forth
in the applicable Terms Agreement, and are not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties, indemnities and agreements contained
in this Underwriting Agreement or the applicable Terms Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or [name of underwriter] upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) Terms Agreement. [Name of underwriter] may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time, if (i) there has been, since the time of execution of such Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) in the opinion of [name of
underwriter], there has occurred any material adverse change in the financial
markets in the United States, in the international financial markets, or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions,
19
in each case the effect of which is such as to make it, in the judgment of [name
of underwriter], impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (iii) trading
in any securities of the Company has been suspended or limited by the Commission
or the New York Stock Exchange, or if trading generally on the New York Stock
Exchange or the American Stock Exchange or in the Nasdaq National Market System
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities include
Securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, by the relevant authorities in the related foreign country
or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4(b) hereof, and provided further that Sections 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then [name of underwriter] shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, [name of underwriter]
shall not have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
under such Terms Agreement bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, except for the
indemnification and contribution agreements in Sections 6 and 7 hereof.
20
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either [name of underwriter] or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [name of underwriter] at
[_______________________], attention [______________], or, in respect of any
Terms Agreement, to such other person and place as may be specified therein; and
notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the General Counsel.
SECTION 12. Parties. This Underwriting Agreement and the applicable
-------
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, [name of underwriter] and, upon execution of such Terms Agreement, any
other Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or such Terms Agreement or
any provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT AND ANY
-------------
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
If the foregoing is in accordance with [name of underwriter]'s
understanding of the agreement, please sign and return to the Company a
counterpart hereof, whereupon this Underwriting Agreement, along with all
counterparts, will become a binding agreement between [name of underwriter] and
the Company in accordance with its terms.
Very truly yours,
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[UNDERWRITER]
By: _________________________
Authorized signatory
22
Exhibit A
CATERPILLAR FINANCIAL SERVICES CORPORATION
(a Delaware corporation)
Debt Securities
TERMS AGREEMENT
---------------
Dated: _______________, ____
To: Caterpillar Financial Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that Caterpillar Financial Services Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $
aggregate principal amount of its debt securities (the "Securities") (such
securities also being hereinafter referred to as the "Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we [the underwriters named below (the "Underwriters")] offer to purchase
[, severally and not jointly,] the principal amount of Underwritten Securities
[opposite their names set forth below] at the purchase price set forth below.
Principal Amount
Underwriter of Underwritten Securities
----------- --------------------------
Total ____________________
[$]
====================
A-1
The Underwritten Securities shall have the following terms:
Title:
------
Rank:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Rating requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
IfFixed Price Offering, initial public offering price per share: % of the
principal amount, plus accrued interest [amortized original issue discount], if
any, from __________________.
Purchase price: ___% of principal amount, plus accrued interest [amortized
original issue discount], if any, from ________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "CATERPILLAR FINANCIAL SERVICES CORPORATION -- Debt Securities --
Underwriting Agreement" (the "Underwriting Agreement") are hereby incorporated
by reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each reference to Underwriters in the Underwriting Agreement so incorporated
herein by reference shall be deemed to refer to the Underwriters as defined in
this Terms Agreement.
A-2
Please accept this offer no later than ____ P.M. (New York City time) on
_______________ by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
[Underwriter]
By: _______________________________________
Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: _______________________________________
Name:
Title:
A-3