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EXHIBIT 1
CATERPILLAR FINANCIAL SERVICES CORPORATION
$500,000,000
POWERNOTES(SM)
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
September 8, 2000
ABN AMRO Incorporated
327 Plaza Real, Suite 225
Boca Raton, FL 33432
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94104
Edward Jones & Co., L.P.
12555 Manchester
Des Peres, MO 63131
Fidelity Capital Markets
a division of National Financial Services LLC
(formerly known as Fidelity Capital Markets
a division of National Financial Services Corporation)
World Trade Center
164 Northern Avenue, ZT3
Boston, MA 02210
PaineWebber Incorporated
1285 Avenue of the Americas
New York, NY 10019
Salomon Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
-----------------------
(SM) Service Mark of Caterpillar Financial Services Corporation
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Dear Sirs:
Caterpillar Financial Services Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell up to $500,000,000 aggregate principal
amount of its PowerNotes(SM) With Maturities of 9 Months or More from Date of
Issue (the "Notes") to be issued pursuant to the provisions of an Indenture
dated as of April 15, 1985, as supplemented from time to time, between the
Company and U.S. Bank Trust National Association (formerly First Trust of New
York, National Association), which acts as Trustee (the "Indenture"). The terms
of the Notes are described in the Prospectus referred to below.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement"), the Company hereby (1) appoints you as agent of the
Company ("Agent") for the purpose of soliciting purchases of the Notes from the
Company and you hereby agree to use your reasonable best efforts to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify and in accordance
with the terms hereof, and, after consultation with ABN AMRO Incorporated (the
"Purchasing Agent"), the Company reserves the right to enter into agreements
substantially identical hereto with other agents and (2) agrees that whenever
the Company determines to sell Notes pursuant to this Agreement, such Notes
shall be sold pursuant to a Terms Agreement relating to such sale in accordance
with the provisions of Section V hereof between the Company and the Purchasing
Agent with the Purchasing Agent purchasing such Notes as principal for resale to
others.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. 333-35460 relating to the Notes and
the offering thereof, from time to time, in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). Such registration
statement, including all documents incorporated therein by reference, as from
time to time amended or supplemented, is referred to herein as the "Registration
Statement". The Registration Statement has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Company has prepared or
will promptly prepare for filing with, or transmission for filing to, the
Commission, pursuant to Rule 424 under the Securities Act, a prospectus
supplement (the "Prospectus Supplement") and a prospectus (the "Base
Prospectus") for the purpose of supplying information in respect of the public
offering of the Notes. The Prospectus Supplement, together with the Base
Prospectus, including all documents incorporated therein by reference, as from
time to time amended or supplemented, and including any Pricing Supplement, are
referred to herein as the "Prospectus".
II.
Your obligations hereunder are subject to the following conditions,
each of which shall be met on such date as you and the Company shall
subsequently fix for the commencement of your obligations hereunder (the
"Commencement Date"):
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(a) (i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate dated such Commencement Date and signed by an
executive officer of the Company to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) You shall have received a favorable opinion of Orrick, Herrington &
Sutcliffe LLP ("Orrick, Herrington & Sutcliffe"), counsel for the Company, dated
the Commencement Date, to the effect that (i) the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power and corporate
authority to own its properties and conduct its business as described in the
Prospectus; (ii) the Indenture has been duly authorized, executed and delivered
by the Company and is a legal, valid, binding and enforceable agreement of the
Company and has been duly qualified under the Trust Indenture Act; (iii) the
issuance and sale of the Notes has been duly authorized and the Notes, when the
terms thereof have been established in accordance with the Indenture and when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the purchasers, will be entitled to the
benefits of the Indenture and will be legal, valid, binding and enforceable
obligations of the Company; (iv) this Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid, binding and
enforceable obligation of the Company; provided, that, the opinions of Orrick,
Herrington & Sutcliffe in (ii), (iii) and (iv) hereof are subject as to
enforcement to the laws of bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles and that rights to indemnity hereunder may be limited
by applicable law in the United States; (v) no authorization, consent or
approval of, or registration or filing with, any United States or State of
Delaware governmental or public body or regulatory authority is required on the
part of the Company for the issuance of the Notes in accordance with the
Indenture or the sale of the Notes in accordance with this Agreement other than
the registration of the Notes under the Securities Act, qualification of the
Indenture under the Trust Indenture Act and compliance with the securities or
Blue Sky laws of various jurisdictions; (vi) the execution and delivery of the
Indenture, the issuance of the Notes in accordance with the Indenture and the
sale of the Notes pursuant to this Agreement do not and will not contravene any
provision of any statute of the United States, the State of New York or the
Delaware General Corporation Law or any rule or regulation thereunder or result
in any violation by the Company of any of the terms or provisions of the
Certificate of Incorporation or Bylaws of the Company, or any indenture,
mortgage or other agreement or instrument filed as an exhibit to the
Registration Statement by which the Company is bound; (vii) the Indenture
conforms and the Notes will conform in all material respects to the descriptions
thereof in the Prospectus; and (viii) Orrick, Herrington & Sutcliffe (1) is of
the opinion that each document, if any, filed pursuant to the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") (except as to financial
statements contained therein, as to which Orrick, Herrington & Sutcliffe need
not express any opinion) and incorporated by reference in the Prospectus
complied when so filed as
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to form in all material respects with the Exchange Act and the rules and
regulations thereunder, (2) is of the opinion that the Registration Statement
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements contained therein, as to which Orrick, Herrington &
Sutcliffe need not express any opinion), comply as to form in all material
respects with the Securities Act and the rules and regulations thereunder and
(3) to the best of Orrick, Herrington & Sutcliffe's knowledge (except for the
financial statements contained therein, as to which Orrick, Herrington &
Sutcliffe need not express any belief) the Registration Statement and the
Prospectus, as amended or supplemented, filed with the Commission pursuant to
the Securities Act together with the information incorporated therein, do not
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, in
light of the circumstances under which they were made, not misleading; provided,
that, with respect to (viii) above, Orrick, Herrington & Sutcliffe may state
that its opinion is based upon the participation by one or more of its
attorneys, who participated in the preparation of the Registration Statement and
the Prospectus and the information incorporated therein by reference and review
and discussion of the contents thereof and discussion of the answers made and
information furnished therein with such attorneys, certain officers of the
Company and its auditors, but is without independent check or verification
except as stated therein.
(c) You shall have received on the Commencement Date a letter dated the
Commencement Date from PricewaterhouseCoopers LLP, independent auditors,
containing statements and information of the type ordinarily included in
auditors' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus relating to the
Notes.
(d) You shall have received a favorable opinion of Sidley & Austin,
counsel for the Agents, dated such Commencement Date, to the effect set forth in
clauses (ii), (iii), (iv), (vii) and (viii)(2) and (3) of Section II(b).
(e) You shall have received a certificate of the secretary or assistant
secretary of Caterpillar Inc. (formerly known as Caterpillar Tractor Co.) as to
(i) the Restated Certificate of Incorporation of Caterpillar Inc., (ii) the
Bylaws of Caterpillar Inc. and (iii) no amendments to or action taken by
Caterpillar Inc. or its directors or officers in contemplation of making any
amendment to the following agreements between Caterpillar Inc. and the Company
since the respective dates thereof: (A) the Support Agreement, dated as of
December 21, 1984, as amended by First Amendment to the Support Agreement, dated
June 14, 1995; and (B) the Tax Sharing Agreement, dated as of June 21, 1984.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement (as defined in Section V
hereof) are subject to the conditions that (i) no litigation or proceeding shall
be threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes, (ii)
no stop order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission and (iii) there shall have been no material adverse
change not in the ordinary course
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of business in the consolidated financial condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus, each of which conditions shall be met on the
corresponding Settlement Date. Further, if specifically called for by any
written agreement by the Purchasing Agent to purchase Notes as principal, the
Purchasing Agent's obligations hereunder and under such agreement, shall be
subject to such of the additional conditions set forth in clauses (a), as it
relates to the executive officer's certificate, and clauses (b), (c) and (d)
above, as agreed to by the parties, each of which such agreed conditions shall
be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture,
(ii) the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and materials incorporated
by reference therein and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates), to
furnish you a copy of each such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the Registration
Statement and of each amendment and supplement to the Prospectus in such
quantities as you may from time to time reasonably request; and if at any time
when the delivery of a Prospectus shall be required by law in connection with
sales of any of the Notes, either (i) any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) for any other reason it shall be
necessary to amend or supplement the latest Prospectus, as then amended or
supplemented, or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Company will (A) notify you to suspend the solicitation of
offers to purchase Notes and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as then amended or
supplemented and (B) promptly prepare and file with the Commission such document
incorporated by reference in the Prospectus or an amendment or supplement to the
Registration Statement or the Prospectus which will correct such statement or
omission or effect such compliance and will provide to you without charge a
reasonable number of copies thereof, which you shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in
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connection with the determination of the eligibility of such Notes for
investment under the laws of such jurisdictions as you may designate; provided,
that, in connection therewith the Company shall not be required to qualify as a
foreign corporation to do business, or to file a general consent to service of
process, in any jurisdiction.
(e) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(f) (i) To use its reasonable efforts, in cooperation with the
Purchasing Agent, to cause such Notes as the Company and the Purchasing Agent
agree to be accepted for listing on any stock exchange (each, a "Stock
Exchange"), in each case as the Company and the Purchasing Agent shall deem to
be appropriate. In connection with any such agreement to qualify Notes for
listing on a Stock Exchange, the Company shall use its reasonable efforts to
obtain such listing promptly and shall furnish any and all documents,
instruments, information and undertakings that may be necessary or advisable in
order to obtain and maintain the listing.
(ii) So long as any Note remains outstanding and listed on a Stock
Exchange, if either (A) there is a significant change affecting any matter
described in the Prospectus the inclusion of which was required by applicable
law, the listing rules and regulations of such Stock Exchange on which any Notes
are listed (the "Listing Rules"), or by such Stock Exchange or (B) a significant
new matter arises the inclusion of information with respect to which would have
been so required if it had arisen when the Prospectus was prepared, to provide
to the Purchasing Agent information about the change or matter, publish such
supplementary Prospectus as may be required by such Stock Exchange and otherwise
comply with applicable law and the Listing Rules in that regard.
(iii) To use reasonable efforts to comply with any undertakings given
by it from time to time to any Stock Exchange on which any Notes are listed.
(g) To notify the Purchasing Agent promptly in writing in the event
that the Company does not have a security listed on the New York Stock Exchange.
IV.
(a) You propose to solicit purchases of the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases
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of the Notes only as permitted by the Securities Act and the applicable
securities laws or regulations of any jurisdiction. The Company reserves the
right, in its sole discretion, to suspend solicitation of purchases of the Notes
commencing at any time for any period of time or permanently. Upon receipt of
instructions (which may be given orally) from the Company, you will forthwith
suspend solicitation of purchases until such time as the Company has advised you
that such solicitation may be resumed.
You are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are not authorized
to appoint subagents or to engage the service of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company; provided, however, the Purchasing Agent may engage the service of any
other broker or dealer without the consent of the Company. The Purchasing Agent
will however, on a periodic basis, provide the Company with a listing of those
brokers or dealers so engaged. Unless authorized by the Purchasing Agent in each
instance, each Agent agrees not to purchase and sell Notes for which an order
from a client has not been received. In addition, unless otherwise instructed by
the Company, the Purchasing Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes. The Company shall have the sole right to
accept offers to purchase Notes offered through you and may reject any proposed
purchase of Notes as a whole or in part. You shall have the right, in your
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of your
agreements contained herein. The Company agrees to pay the Purchasing Agent, as
consideration for soliciting the sale of the Notes pursuant to a Terms
Agreement, a concession in the form of a discount equal to the percentages of
the initial offering price of each Note sold not in excess of the concession set
forth in Exhibit A hereto (the "Concession"). The Purchasing Agent and the other
Agents will share the above-mentioned Concession in such proportions as they may
agree.
Unless otherwise authorized by the Company, all Notes shall be sold to
the public at a purchase price not to exceed 100% of the principal amount
thereof, plus accrued interest, if any, with the exception of Notes that bear a
zero interest rate and are issued at a substantial discount from the principal
amount payable at the Maturity Date (a "Zero-Coupon Note"). Such Zero-Coupon
Notes shall be sold to the public at a purchase price no greater than an amount,
expressed as a percentage of the principal face amount of such Notes, equal to
the net proceeds to the Company on the sale of such Notes, plus the Concession,
plus accrued interest, if any. The actual purchase price paid by investors for
any Note shall be determined by prevailing market prices at the time of
purchase. Such purchase price shall be set forth in the confirmation statement
of the Selling Group member responsible for such sale, and delivered to the
purchaser along with a copy of the Prospectus (if not previously delivered) and
Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. The provisions of the Procedures shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. You and the Company each agree to perform the respective duties and
obligations specifically provided to be performed by each in the Procedures as
amended from
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time to time. The Procedures may only be amended by written agreement of the
Company and you.
(c) You are aware that other than registering the Notes under the
Securities Act, no action has been or will be taken by the Company that would
permit the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in any
jurisdiction where action for that purpose is required. Accordingly, you agree
that you will observe all applicable laws and regulations in each jurisdiction
in or from which you may directly or indirectly acquire, offer, sell or deliver
Notes or have in your possession or distribute the Prospectus or any other
offering material relating to the Notes and you will obtain any consent,
approval or permission required by you for the purchase, offer or sale by you of
Notes under the laws and regulations in force in any such jurisdiction to which
you are subject or in which you make such purchase, offer or sale. Neither the
Company nor any other Agent shall have any responsibility for determining what
compliance is necessary by you or for your obtaining such consents, approvals or
permissions. You further agree that you will take no action that will impose any
obligations on the Company or the other Agents. Subject as provided above, you
shall, unless prohibited by applicable law, furnish to each person to whom you
offer, sell or deliver Notes a copy of the Prospectus (as then amended or
supplemented) or (unless delivery of the Prospectus is required by applicable
law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. You are not authorized to
give any information or to make any representation not contained in the
Prospectus or the documents incorporated by reference or specifically referred
to therein in connection with the offer and sale of the Notes.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement".
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. The Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, shall describe the Notes to be
purchased pursuant thereto by the Purchasing Agent as principal, and may
specify, among other things, the principal amount of Notes to be purchased, the
interest rate or formula and maturity date or dates of such Notes, the interest
payment dates, if any, the price to be paid to the Company for such Notes, the
initial public offering price at which the Notes are proposed to be reoffered,
and the time and place of delivery of and payment for such Notes (the
"Settlement Date"), whether the Notes provide for a Survivor's Option or for
optional redemption by the Company and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company, you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you reallow any
portion of the
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discount paid to you by the Company; provided, however, that the Purchasing
Agent may engage the service of any other broker or dealer without the consent
of the Company. The Purchasing Agent will however, on a periodic basis, provide
the Company with a listing of those brokers or dealers so engaged. Terms
Agreements, each of which shall be substantially in the form of Exhibit C
hereto, or as otherwise agreed to between the Company and the Purchasing Agent,
may take the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the Company.
VI.
The Company represents and warrants to the Agents that as of each date
on which the Company accepts an offer to purchase Notes (including any purchase
by the Purchasing Agent as principal, pursuant to a Terms Agreement or
otherwise), as of each date the Company issues and sells Notes and as of each
date the Registration Statement or the Prospectus is amended or supplemented:
(a) (i) each document, if any, filed, or to be filed, pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied when so
filed, or will comply, in all material respects with such Act and the rules and
regulations thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did not 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; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(b) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, 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 properties,
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(c) 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;
(d) the Notes have been duly authorized, and, when issued and delivered
pursuant to this Agreement and any Terms Agreement, will have been duly
executed, authenticated, issued and
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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 Notes of any particular issuance of Notes will conform to the
descriptions thereof contained in the Prospectus as amended or supplemented to
relate to such issuance of Notes;
(e) other than as set forth in the Prospectus, the Company and each of
its subsidiaries have conducted their businesses and are in compliance in all
material respects with all applicable federal and state laws and regulations,
except for any noncompliance which would not have a material adverse effect on
the Company and its subsidiaries considered as a whole;
(f) the issue and sale of the Notes, the compliance by the Company with
all of the provisions of the Notes, 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 any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or Bylaws
of the Company 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
any of its 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 Notes, the issue and
sale of the Notes 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 Commencement Date, obtained
under the Securities Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the solicitation by
you of offers to purchase Notes from the Company and with purchases of Notes by
you as principal, as the case may be, in each case in the manner contemplated
hereby;
(g) other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending 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, which are of a character which are required to be disclosed in the
Prospectus which have not been properly disclosed therein; and
(h) immediately after any sale of Notes by the Company hereunder or
under any Terms Agreement, the aggregate amount of Notes which shall have been
issued and sold by the Company hereunder or under any Terms Agreement and of any
debt securities of the Company (other than such Notes) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement.
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The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of
a post-effective amendment with the Commission, or the filing by the Company of
a Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
(in the case of a Form 10-Q, if requested in writing), or as otherwise agreed,
of counsel to the Company, in substantially the form previously delivered under
Section II(b), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date; (2) a
letter, dated the date of such amendment, filing, or as otherwise agreed, of
PricewaterhouseCoopers LLP, independent auditors, in substantially the form
previously delivered under Section II(c), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; and (3) a certificate, dated the date of such amendment, filing, or
as otherwise agreed and signed by an executive officer of the Company, in
substantially the form previously delivered under Section II(a), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable costs of investigating, disputing or defending any
such claim or action), insofar as such losses, liabilities, costs or claims (or
actions in respect thereof) arise out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading provided: (i) that the Company shall not be liable for any such loss,
liability, cost, action or claim arising from any statements or omissions made
in reliance on and in conformity with written information provided by you to the
Company expressly for use in the Registration Statement or Prospectus or any
amendment or supplement thereto; and (ii) that the Company shall not be liable
to you or any person controlling you with respect to the Prospectus to the
extent any such loss, liability, cost, action or claim to you or such
controlling person results from the fact that you sold Notes to a person to whom
there was not sent or given, at or prior to the earlier of either the mailing or
delivery of the written confirmation of such sale or the delivery of such Notes
to such person, a
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<PAGE> 12
copy of the Prospectus as then amended or supplemented, if the Company has
previously furnished copies thereof to you.
You agree to indemnify and hold harmless the Company, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act), the Company, and the Company's and such
person's officers and directors from and against any and all losses,
liabilities, costs or claims (or actions in respect thereof) to which any of
them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the section of the Prospectus
Supplement entitled "Supplemental Plan of Distribution" or any amendment or
supplement thereto in reliance on and in conformity with written information
furnished to the Company by you expressly for use therein.
You agree to indemnify and hold harmless the Company, the other Agents,
each director and officer of the Company, or of any of the other Agents, and
each person, if any, who controls (within the meaning of Section 15 of the
Securities Act) the Company, or any of the other Agents, against any and all
losses, claims, damages, liabilities, expenses, actions and demands to which
they or any of them may become subject (including all reasonable costs of
investigating, disputing or defending any such claim, action or demand) under
the law of any jurisdiction or which may be made against them arising out of, or
in connection with the breach by you of any of the terms, conditions, agreements
and representations of Section IV of the Agreement.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall, promptly
after receipt of notice of the commencement of any such claim, demand, action or
proceeding, notify the indemnifying party in writing of the commencement of such
claim, demand, action or proceeding, enclosing a copy of all papers served, if
any; provided, that, the omission to so notify such indemnifying party will not
relieve the indemnifying party from any liability that it may have to any
indemnified party under the foregoing provisions of this Section VII unless, and
only to the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. The indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
the
12
<PAGE> 13
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is agreed that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate law
firm (in addition to local counsel where necessary) for all such indemnified
parties. Such firm shall be designated in writing by the indemnified party. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnifying the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in this Section VII is unavailable
to or insufficient to hold harmless an indemnified party under the preceding
paragraphs of this Section VII 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 each Agent on the
other from the offering of the Notes to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, 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 each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Notes (before deducting
expenses) received by the Company bear to the total commissions or discounts
received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this fifth paragraph of Section
VII were determined by per capita allocation (even if all Agents were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this fifth
paragraph of Section VII. 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 fifth paragraph of Section VII shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in
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<PAGE> 14
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this fifth paragraph of Section VII, no Agent
shall be required to contribute any amount in excess of any Concession received
by it and 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 each
of the Agents under this fifth paragraph of Section VII to contribute are
several in proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof) relates and
are not joint.
The indemnity and contribution agreements contained in this Section VII
and the representations and warranties of the Company and you in this Agreement,
shall remain operative and in full force and effect regardless of: (i) any
termination of this Agreement; (ii) any investigation made by or on behalf of
the Agents; (iii) any investigation by an indemnified party or on such party's
behalf or any person controlling an indemnified party or by or on behalf of the
indemnifying party, its directors or officers or any person controlling the
indemnifying party; and (iv) acceptance of and payment for any of the Notes.
VIII.
Except as provided in Section V hereof, in soliciting purchases of
Notes from the Company, you are acting solely as agent for the Company, and not
as principal. You will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
accepted by the Company, but you shall not have any liability to the Company in
the event such purchase is not consummated for any reason, other than to repay
to the Company any commission with respect thereto. Except pursuant to a Terms
Agreement, under no circumstances shall you be obligated to purchase any Notes
for your own account.
IX.
This Agreement shall be terminated at any time by either party hereto
upon the giving of five business days written notice of such termination to the
other party hereto. In the event of any such termination, neither party shall
have any liability to the other party hereto, except for obligations hereunder
which expressly survive the termination of this Agreement and except that, if at
the time of termination an offer for the purchase of Notes shall have been
accepted by the Company but the time of delivery to the purchaser or his agent
of the Note or Notes relating thereto shall not yet have occurred, the Company
shall have the obligations provided herein with respect to such Note or Notes.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
the Purchasing Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement.
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VII, and the
first paragraph of Section XIV shall
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<PAGE> 15
survive; provided, that, if at the time of termination of this Agreement an
offer to purchase Notes has been accepted by the Company but the time of
delivery to the purchaser or its agent of such Notes has not occurred, the
provisions of Section III(a) and (b), Section IV(b) and Section V shall also
survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 2120 West End Avenue, Nashville, Tennessee 37203-0001, telecopier
number 615-341-8587, marked for the attention of the Secretary. All such notices
shall be effective on receipt.
XI.
This Agreement shall be binding upon you and the Company, and inure
solely to the benefit of you and the Company and any other person expressly
entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
XIII.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
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<PAGE> 16
XIV.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's auditors, of the
Trustee and its counsel and of any paying or other agents appointed by the
Company; (iv) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; (v) the
reasonable fees and disbursements of Sidley & Austin, counsel for the Agents
(including "Blue Sky" fees and disbursements); (vi) if the Company lists Notes
on a securities exchange, the costs and fees of such listing; and (vii) any fees
charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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<PAGE> 17
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
CATERPILLAR FINANCIAL SERVICES CORPORATION
By:_________________________________________
Title:______________________________________
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<PAGE> 18
Confirmed and accepted
as of the date first above written:
ABN AMRO INCORPORATED
By:___________________________
Title:________________________
ABN AMRO Incorporated
327 Plaza Real, Suite 225
Boca Raton, FL 33432
Attention:
Telefax:
CHARLES SCHWAB & CO., INC.
By:___________________________
Title:________________________
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94104
Attention:
Telefax:
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<PAGE> 19
EDWARD JONES & CO., L.P.
By:___________________________
Title:________________________
Edward Jones & Co., L.P.
12555 Manchester
Des Peres, Missouri 63131
Attention:
Telefax:
FIDELITY CAPITAL MARKETS
a division of National Financial Services LLC
By:___________________________
Title:________________________
Fidelity Capital Markets
a division of National Financial Services LLC
(formerly known as Fidelity Capital Market
a division of National Financial Services Corporation)
World Trade Center
164 Northern Avenue, ZT3
Boston, Massachusetts 02210
Attention:
Telefax:
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<PAGE> 20
PAINEWEBBER INCORPORATED
By:___________________________
Title:________________________
PaineWebber Incorporated
1285 Avenue of the Americas
New York, NY 10019
Attention:
Telefax:
SALOMON SMITH BARNEY INC.
By:___________________________
Title:________________________
Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Attention:
Telefax:
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<PAGE> 21
EXHIBIT A
POWERNOTES(SM)
CATERPILLAR FINANCIAL SERVICES CORPORATION
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each note sold through the Purchasing Agent and will not
exceed the amounts listed below.
<TABLE>
<S> <C>
9 months to less than 23 months......................... 0.600%
23 months to less than 35 months........................ 0.850%
35 months to less than 47 months........................ 1.375%
47 months to less than 59 months........................ 1.625%
59 months to less than 71 months.........................2.000%
71 months to less than 83 months.........................2.250%
83 months to less than 95 months.........................2.250%
95 months to less than 107 months........................2.375%
107 months to less than 119 months.......................2.375%
119 months to less than 131 months.......................2.500%
131 months to less than 143 months.......................2.750%
143 months to less than 179 months.......................3.250%
179 months to less than 239 months.......................3.500%
239 months to 360 months.................................5.000%
</TABLE>
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EXHIBIT B
CATERPILLAR FINANCIAL SERVICES CORPORATION
$500,000,000
POWERNOTES(SM)
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
PowerNotes(SM) With Maturities of 9 Months or More from Date of Issue the
("Notes") are offered on a continuing basis by Caterpillar Financial Services
Corporation. The Notes will be offered by ABN AMRO Incorporated (the "Purchasing
Agent"), Charles Schwab & Co., Inc., Edward Jones & Co., L.P., Fidelity Capital
Markets, a division of National Financial Services LLC (formerly known as
Fidelity Capital Markets, a division of National Financial Services
Corporation), PaineWebber Incorporated and Salomon Smith Barney Inc.
(collectively, the "Agents") pursuant to a Selling Agent Agreement among the
Company and the Agents dated as of the date hereof (the "Selling Agreement") and
one or more terms agreements substantially in the form attached to the Selling
Agreement as Exhibit C (each a "Terms Agreement"). The Notes are being resold by
the Purchasing Agent (and by any Agent that purchases them from the Purchasing
Agent) to (i) customers of the Agents or (ii) selected broker-dealers (the
"Selling Group") for distribution to their customers pursuant to a Master
Selected Dealers Agreement (a "Dealers Agreement") attached hereto as Schedule
E. The Agents have agreed to use their reasonable best efforts to solicit
purchases of the Notes. The Notes will be senior debt and have been registered
with the Securities and Exchange Commission (the "Commission"). U.S. Bank Trust
National Association (formerly First Trust of New York, National Association) is
trustee (the "Trustee") under an Indenture dated as of April 15, 1985, as
amended from time to time, between the Company and the Trustee (the "Indenture")
covering the Notes. Pursuant to the terms of the Indenture, U.S. Bank Trust
National Association also will serve as authenticating agent, issuing agent and
paying agent.
Each tranche of Notes will be issued in book-entry form and represented by one
or more fully registered global notes without coupons (each, a "Global Note")
held by the Trustee, as agent for the Depository Trust Corporation ("DTC") and
recorded in the book-entry system maintained by DTC. Each Global Note will have
the annual interest rate, maturity and other terms set forth in the relevant
Pricing Supplement (as defined in the Selling Agreement). Owners of beneficial
interests in a Global Note will be entitled to physical delivery of Notes issued
in certificated form equal in principal amount to their respective beneficial
interests only upon certain limited circumstances described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Treasury Department; accountable document control and record-keeping
responsibilities will be performed by its Legal Department. The Company will
advise the Agents and the Trustee in writing of those persons
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<PAGE> 23
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreements or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreements and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or in the Indenture.
ADMINISTRATIVE PROCEDURES FOR NOTES
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated September 8, 2000 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated January 31, 1991
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "Maturity Date") not
less than nine months after the date of delivery by the
Company of such Note. Notes will mature on any date selected
by the initial purchaser and agreed to by the Company.
"Maturity" when used with respect to any Note, means the
date on which the outstanding principal amount of such Note
becomes due and payable in full in accordance with its
terms, whether at its Maturity Date or by declaration of
acceleration, call for redemption, repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note will be
dated and issued as of the date of its authentication by the
Trustee.
All Discount Notes which have the same terms (collectively,
the "Zero-Coupon Terms") will be represented initially by a
single Global Certificate in fully registered form without
coupons.
Each Global Note will bear an original issue date (the
"Original Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon transfer,
exchange or substitution of an original Note regardless of
their dates of authentication.
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<PAGE> 24
Identification
Numbers: The Company has received from the CUSIP Service Bureau (the
"CUSIP Service Bureau") of Standard & Poor's Corporation
("Standard & Poor's) one series of CUSIP numbers consisting
of approximately 200 CUSIP numbers for future assignment to
Global Notes. The Company will provide DTC and the Trustee
with a list of such CUSIP numbers. The Company will assign
CUSIP numbers as described below under Settlement Procedure
"B". DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has assigned to Global
Notes. The Company will reserve additional CUSIP numbers
when necessary for assignment to Global Notes and will
provide the Trustee and DTC with the list of additional
CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will be
issued only in fully registered form without coupons. Each
Global Note will be registered in the name of Cede & Co., as
nominee for DTC, on the Note Register maintained under the
Indenture by the Trustee. The beneficial owner of a Note (or
one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with
respect to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner of such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of interests in a Global Note will be accomplished
by book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such interests.
Exchanges: The Trustee, at the Company's request, may deliver to DTC
and the CUSIP Service Bureau at any time a written notice of
consolidation specifying (a) the CUSIP numbers of two or
more Global Notes outstanding on such date that represent
Notes having the same terms (except that Issue Dates need
not be the same) and for which interest, if any, has been
paid to the same date and which otherwise constitute Notes
of the same series and tenor under the Indenture, (b) a
date, occurring at least 30 days after such written notice
is delivered and at least 30 days before the next Interest
Payment Date, if any, for the related Notes, on which such
Global Notes shall be exchanged for a single replacement
Global Note; and (c) a new CUSIP number, obtained from the
Company, to be assigned to such replacement Global Note.
Upon receipt of such a notice, DTC will send to its
participants (including the Issuing Agent)
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<PAGE> 25
and the Trustee a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global Notes
to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global Notes
for a single Global Note bearing, the new CUSIP number and
the CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. Notwithstanding
the foregoing, if the Global Notes to be exchanged exceed
$400,000,000 in aggregate principal or face amount, one
replacement Global Note will be authenticated and issued to
represent each $400,000,000 of principal or face amount of
the exchanged Global Notes and an additional Global Note
will be authenticated and issued to represent any remaining
principal amount of such Global Notes (See "Denominations"
below).
Denominations: Notes will be issued in denominations of $1,000 or more (in
multiples of $1,000). Global Notes will be denominated in
principal or face amounts not in excess of $400,000,000. If
one or more Notes having an aggregate principal or face
amount in excess of $400,000,000 would, but for the
preceding sentence, be represented by a single Global Note,
then one Global Note will be issued to represent each
$400,000,000 principal or face amount of such Note or Notes
and an additional Global Note will be issued to represent
any remaining principal amount of such Note or Notes. In
such case, each of the Global Notes representing such Note
or Notes shall be assigned the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage of
principal amount specified in the Prospectus relating to
such Note.
Interest: General. Each Note will bear interest at a fixed rate, which
may be zero during all or any part of the term in the case
of certain Notes issued at a price representing a
substantial discount from the principal amount payable at
Maturity. Interest on each Note will accrue from the Issue
Date of such Note for the first interest period and from the
most recent Interest Payment Date to which interest has been
paid for all subsequent interest periods. Except as set
forth hereafter, each payment of interest on a Note will
include interest accrued to but excluding, as the case may
be, the Interest Payment Date or the date of Maturity (other
than a Maturity Date of a Note occurring on the 31st day of
a month in which case such payment of interest will include
interest accrued to but excluding the 30th day of such
month). Any payment of principal, premium or interest
required to be made on a day that is not a Business Day (as
defined below) may be made on the next succeeding Business
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<PAGE> 26
Day and no interest shall accrue as a result of any such
delayed payment.
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard & Poor's
Corporation, which will use the message to include certain
information regarding the related Notes in the appropriate
daily bond report published by Standard & Poor's
Corporation.
Each Note will bear interest from and including its Issue
Date at the rate per annum set forth thereon and in the
applicable Pricing Supplement until the principal amount
thereof is paid, or made available for payment, in full.
Unless otherwise specified in the applicable Pricing
Supplement, interest on each Note (other than a Zero-Coupon
Note) will be payable either monthly, quarterly,
semi-annually or annually on each Interest Payment Date and
at Maturity (or on the date of redemption or repayment if a
Note is repurchased by the Company prior to maturity
pursuant to mandatory or optional redemption provisions or
the Survivor's Option). Interest will be payable to the
person in whose name a Note is registered at the close of
business on the Regular Record Date next preceding each
Interest Payment Date; provided, however, interest payable
at Maturity, on a date of redemption or in connection with
the exercise of the Survivor's Option will be payable to the
person to whom principal shall be payable.
Any payment of principal, and premium, if any, or interest
required to be made on a Note on a day which is not a
Business Day need not be made on such day, but may be made
on the next succeeding Business Day with the same force and
effect as if made on such day, and no additional interest
shall accrue as a result of such delayed payment. Unless
otherwise specified in the applicable Pricing Supplement,
any interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months. The interest rates the
Company will agree to pay on newly-issued Notes are subject
to change without notice by the Company from time to time,
but no such change will affect any Notes already issued or
as to which an offer to purchase has been accepted by the
Company.
The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of each
calendar month (or the next Business Day), commencing in the
calendar month that next succeeds the month in which the
Note is issued. In the case of a Note that provides for
quarterly interest payments, the Interest Payment Dates
shall be the fifteenth day of each third month (or the next
Business Day), commencing in the third succeeding calendar
month following the month in which the Note is issued. In
the case of a Note that provides for semi-annual interest
payments, the Interest Payment dates shall be the fifteenth
day of each sixth month (or the next Business Day),
commencing in the sixth succeeding calendar month following
the month
26
<PAGE> 27
in which the Note is issued. In the case of a Note that
provides for annual interest payments, the Interest Payment
Date shall be the fifteenth day of every twelfth month (or
the next Business Day), commencing in the twelfth succeeding
calendar month following the month in which the Note is
issued. The Regular Record Date with respect to any Interest
Payment Date shall be the date fifteen calendar days prior
to such Interest Payment Date, whether or not such date
shall be a Business Day; provided, however, that interest
payable at Maturity will be payable to the person to whom
principal shall be payable.
Each payment of interest on a Note shall include accrued
interest from and including the Issue Date or from and
including the last day in respect of which interest has been
paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as
the case may be.
Calculation
of Interest: Unless otherwise specified in the applicable Pricing
Supplement, interest on the Notes (including interest for
partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months. (Examples of interest
calculations are as follows: October 1, 2000 to April 1,
2001 equals 6 months and 0 days, or 180 days; the interest
paid equals 180/360 times the annual rate of interest times
the principal amount of the Note. The period from December
3, 2000 to April 1, 2001 equals 4 months and 28 days, or 148
days; the interest payable equals 148/360 times the annual
rate of interest times the principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, any day, other than a
Saturday or Sunday, that meets the following applicable
requirement: such day is not a day on which banking
institutions are authorized or required by law, regulation
or executive order to be closed in the City of New York.
Payments of
Principal and
Interest: Payments of Principal and Interest. Promptly after each
Regular Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest, if any, to be paid on each Global Note
on the following Interest Payment Date (other than an
Interest Payment Date coinciding with a Maturity Date) and
the total of such amounts. DTC will confirm the amount
payable on each Global Note on such Interest Payment Date by
reference to the daily bond reports published by Standard &
Poor's. On such Interest Payment Date, the Company will pay
to the Trustee, and the Trustee in turn will pay to DTC,
such total amount of interest due (other than on the
Maturity Date), at the times and in the manner set forth
below under "Manner of Payment". If any Interest Payment
Date for any Note is not a Business
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<PAGE> 28
Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment
Date.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, premium, if
any, and interest to be paid on each Global Note
representing Notes maturing or subject to redemption
(pursuant to a sinking fund or otherwise) or repayment
("Maturity") in the following month. The Trustee, the
Company and DTC will confirm the amounts of such principal,
premium, if any, and interest payments with respect to each
Global Note on or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity Date, the
Company will pay to the Trustee, and the Trustee in turn
will pay to DTC, the principal amount of such Global Note,
together with interest and premium, if any, due on such
Maturity Date, at the times and in the manner set forth
below under "Manner of Payment". If the Maturity Date of any
Global Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from
and after such Maturity Date. Promptly after payment to DTC
of the principal and interest due on the Maturity Date of
such Global Note and all other Notes represented by such
Global Note, the Trustee will cancel and destroy such Global
Note in accordance with the Indenture and so advise the
Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on any
Interest Payment Date or at Maturity shall be paid by the
Company to the Trustee in immediately available funds on
such date. The Company will make such payment on such Global
Notes by instructing the Trustee to withdraw funds from an
account maintained by the Company with The Chase Manhattan
Bank, by wire transfer to The Chase Manhattan Bank or as
otherwise agreed with the Trustee. The Company will confirm
such instructions in writing to the Trustee. Prior to 10:00
a.m., New York City time, on the Maturity Date or as soon as
possible thereafter, the Trustee will make payment to DTC in
accordance with existing arrangements between DTC and the
Trustee, in funds available for immediate use by DTC, each
payment of interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment Date
(other than on the Maturity Date) the Trustee will pay DTC
such interest payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants with payments in amounts
proportionate to their respective holdings in principal
amount of beneficial interest in such Global Note as are
recorded in the book-entry system maintained by DTC. Neither
the Company nor the
28
<PAGE> 29
Trustee shall have any direct responsibility or liability
for the payment by DTC of the principal of, or premium, if
any, or interest on, the Notes to such Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss, from time to time,
the aggregate principal amounts of, the Maturities, the
Issue Price and the interest rates to be borne by Notes that
may be sold as a result of the solicitation of orders by the
Agents. If the Company decides to set interest rates borne
by any Notes in respect of which the Agents are to solicit
orders (the setting of such interest rates to be referred to
herein as "Posting") or if the Company decides to change
interest rates previously posted by it, it will promptly
advise the Agents of the prices and interest rates to be
posted.
The Company will assign a separate CUSIP number for each
tranche of Notes to be posted, and will so advise and notify
the Trustee and Purchasing Agent of said assignment by
telephone and/or by telecopier or other form of electronic
transmission. The Purchasing Agent will, in turn, include
the assigned CUSIP number on all Posting notices
communicated to the Agents and Selling Group members.
Offering of Notes: In the event that there is a Posting, the Purchasing Agent
will communicate to each of the Agents and Selling Group
members the aggregate principal amount and Maturities of,
along with the interest rates to be borne by, each tranche
of Notes that is the subject of the Posting. Thereafter, the
Purchasing Agent, along with the other Agents and the
Selling Group, will solicit offers to purchase the Notes
accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00 p.m. (New York
City time) on the sixth day subsequent to the day on which
such Posting occurs, or if such sixth day is not a day on
which commercial banks in New York City are not required or
authorized to be in operation (not a "Business Day"), on the
preceding Business Day, or on such other Business Day and
time as shall be mutually agreed upon by the Company and the
Agents (any such day, a "Trade Day"), (i) complete, execute
and deliver to the Company a Terms Agreement that sets
forth, among other things,
29
<PAGE> 30
the amount of each tranche that the Purchasing Agent is
offering to purchase or (ii) inform the Company that none of
the Notes of a particular tranche will be purchased by the
Purchasing Agent.
Acceptance
and Rejection
of Orders: Unless otherwise agreed by the Company and the Agents, the
Company has the sole right to accept orders to purchase
Notes and may reject any such order in whole or in part.
Unless otherwise instructed by the Company, the Purchasing
Agent will promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than those
rejected by it in whole or in part in the reasonable
exercise of its discretion. No order for less than $1,000
principal amount of Notes will be accepted.
Upon receipt of a completed and executed Terms Agreement
from the Purchasing Agent, the Company will (i) promptly
execute and return such Terms Agreement to the Purchasing
Agent or (ii) inform the Purchasing Agent that its offer to
purchase the Notes of a particular tranche has been
rejected, in whole or in part. The Purchasing Agent will
thereafter promptly inform the other Agents and
participating Selling Group members of the action taken by
the Company.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by or on behalf
of the Company, the Company will provide a Pricing
Supplement (substantially in the form attached to the
Selling Agent Agreement as Exhibit D) reflecting the terms
of such Note and will have filed such Pricing Supplement
with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will supply a
copy thereof (or additional copies if requested) to the
Purchasing Agent and one copy to the Trustee. The Purchasing
Agent will cause a Prospectus and Pricing Supplement to be
delivered to each of the other Agents and Selling Group
members that purchased such Notes, and each of these, in
turn, will pursuant to the terms of the Selling Agent
Agreement and the Master Selected Dealer Agreement, cause to
be delivered a copy of the applicable Pricing Supplement to
each purchaser of Notes from such Agent or Selling Group
member.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other than those
retained for files) will be destroyed.
30
<PAGE> 31
Delivery of
Confirmation and
Prospectus to Subject to "Suspension of Solicitation; Amendment or
Purchaser by Supplement" below, the Agents will deliver a Prospectus
Purchasing (including the Pricing Supplement) as herein described with
Agent: respect to each Note sold by it.
For each offer to purchase a Note solicited by an Agent and
accepted by or on behalf of the Company, the Purchasing
Agent will issue a confirmation to the purchaser, with a
copy to the Company, setting forth the terms of such Note
and other applicable details described above and delivery
and payment instructions. In addition, the Purchasing Agent
will deliver to such purchaser the Prospectus (including the
Pricing Supplement) in relation to such Note prior to or
together with the earlier of any written offer of such Note,
delivery of the confirmation of sale or delivery of the
Note.
Settlement: The receipt of immediately available funds by the Company in
payment for Notes and the authentication and issuance of the
Global Note representing such Notes shall constitute
"Settlement" with respect to such Note. All orders accepted
by the Company will be settled within one to three Business
Days pursuant to the timetable for Settlement set forth
below, unless the Company and the purchaser agree to
Settlement on a later date, and shall be specified upon
acceptance of such offer; provided, however, in all cases
the Company will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if different from
those set forth below, will be set forth in the applicable
Terms Agreement to be entered into between such Agent and
the Company pursuant to the Agreement. Settlement Procedures
with regard to each Note sold by an Agent, as agent for the
Company, shall be as follows:
A. After the acceptance of an offer by the Company with
respect to a Note, the Purchasing Agent will communicate
the following details of the terms of such offer (the
"Note Sale Information") to the Company by telephone
confirmed in writing or by facsimile transmission or
other acceptable written means:
1. Principal amount of the purchase;
2. Interest Rate;
3. Interest Payment Dates;
4. Settlement Date;
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<PAGE> 32
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission determined pursuant to
Section IV(a) of the Selling Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company, such of the
following as are applicable:
(i) The date on and after which such Note may be
redeemed (the "Redemption Commencement Date"),
(ii) Initial redemption price (% of par), and
(iii) Amount (% of par) that the initial redemption
price shall decline (but not below par) on each
anniversary of the Redemption Commencement
Date;
11. Whether the Note has the Survivor's Option;
12. If a Discount Note, the total amount of original
issue discount, the yield to maturity and the initial
accrual period of original issue discount;
13. DTC Participant Number of the institution through
which the customer will hold the beneficial interest
in the Global Note; and
14. Such other terms as are necessary to complete the
applicable form of Note.
B. The Company will confirm the previously assigned CUSIP
number to the Global Note representing such Note and then
advise the Trustee and the Purchasing Agent by telephone
(confirmed in writing at any time on the same date) or by
telecopier or other form of electronic transmission of
the information received in accordance with Settlement
Procedure "A" above, the assigned CUSIP number and the
name of the Purchasing Agent. Each such communication by
the Company will be deemed to constitute a representation
and warranty by the Company to the Trustee and the Agents
that (i) such Note is then,
32
<PAGE> 33
and at the time of issuance and sale thereof will be,
duly authorized for issuance and sale by the Company;
(ii) such Note, and the Global Note representing such
Note, will conform with the terms of the Indenture; and
(iii) upon authentication and delivery of the Global Note
representing such Note, the aggregate principal amount of
all Notes issued under the Indenture will not exceed the
aggregate principal amount of Notes authorized for
issuance at such time by the Company.
C. The Trustee will communicate to DTC and the Purchasing
Agent through DTC's Participant Terminal System, a
pending deposit message specifying the following
Settlement information:
1. The information received in accordance with Settlement
Procedure "A".
2. The numbers of the participant accounts maintained by
DTC on behalf of the Trustee and the Purchasing Agent.
3. The initial Interest Payment Date for such Note,
number of days by which such date succeeds the related
DTC record date (which term means the Regular Record
Date), and if then calculated, the amount of interest
payable on such Initial Interest Payment Date (which
amount shall have been confirmed by the Trustee).
4. The CUSIP number of the Global Note representing such
Notes.
5. The frequency of interest.
6. Whether such Global Note represents any other Notes
issued or to be issued (to the extent then known).
D. DTC will credit such Note to the participant account of
the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global Note
representing such Note in a form that has been approved
by the Company, the Agents and the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession of such
Global Note.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i)
debit such Note to the Trustee's participant account and
credit such Note to the participant account of the Agent
maintained by DTC and (ii)
33
<PAGE> 34
debit the settlement account of the Agent and credit the
settlement account of the Trustee maintained by DTC, in
an amount equal to the price of such Note less the
Purchasing Agent's commission. The entry of such a
deliver order shall be deemed to constitute a
representation and warranty by the Trustee to DTC that
(a) the Global Note representing such Note has been
issued and authenticated and (b) the Trustee is holding
such Global Note pursuant to the Certificate Agreement.
H. The Purchasing Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing DTC
to (i) debit such Note to the Purchasing Agent's
participant account and credit such Note to the
participant accounts of the Participants to whom such
Note is to be credited maintained by DTC and (ii) debit
the settlement accounts of such Participants and credit
the settlement account of the Purchasing Agent maintained
by DTC, in an amount equal to the price of the Note so
credited to their accounts.
I. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "G" and "H" will be
settled in accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the Company
maintained at The Chase Manhattan Bank funds available
for immediate use in an amount equal to the amount
credited to the Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to the
Company.
L. The Purchasing Agent will confirm the purchase of each
Note to the purchaser thereof either by transmitting to
the Participant to whose account such Note has been
credited a confirmation order through DTC's Participant
Terminal System or by mailing a written confirmation to
such purchaser. In all cases the Prospectus, as most
recently amended or supplemented, must accompany or
precede such confirmation.
M. Each Business Day, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the Company has
advised the Trustee but which have not yet been settled.
34
<PAGE> 35
Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing Agent,
as principal, appropriate Settlement details, if different
from those set forth below will be set forth in the
applicable Terms Agreement to be entered into between the
Purchasing Agent and the Company pursuant to the Selling
Agent Agreement.
For orders of Notes solicited by an Agent, as agent, and
accepted by the Company, Settlement Procedures "A" through
"M" shall be completed as soon as possible but not later
than the respective times (New York City time) set forth
below:
Settlement: Procedure Time
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
J-L 5:00 p.m. on the Settlement Date
M Weekly or at the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is subject to extension in
accordance with any extension Fedwire closing deadlines and
in the other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If Settlement of a Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 p.m., New York City time, on the Business
Day immediately preceding the scheduled Settlement Date.
35
<PAGE> 36
Failure to
Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Note pursuant to Settlement Procedure "G", the
Trustee may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant
account of the Trustee maintained at DTC. DTC will process
the withdrawal message; provided, that, such participant
account contains Notes having the same terms and having a
principal amount that is at least equal to the principal
amount of such Note to be debited. If withdrawal messages
are processed with respect to all the Notes issued or to be
issued represented by a Global Note, the Trustee will cancel
such Global Note in accordance with the Indenture, make
appropriate entries in its records and so advise the
Company. The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned. If withdrawal
messages are processed with respect to one or more, but not
all, of the Notes represented by a Global Note, the Trustee
will exchange such Global Note for two Global Notes, one of
which shall represent such Notes and shall be cancelled
immediately after issuance, and the other of which shall
represent the remaining Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number of
the surrendered Global Note. If the purchase price for any
Note is not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the
related Agent may enter SDFS deliver orders through DTC's
participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "G" and "H", respectively.
Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the Agent in the performance of
its obligations hereunder or under the Selling Agent
Agreement, the Company will reimburse the Agent on an
equitable basis for its loss of the use of funds during the
period when they were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Note, DTC may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of Notes that were to have been
represented by a Global Note, the Trustee will provide, in
accordance with Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note representing
the other Notes to have been represented by such Global Note
and will make appropriate entries in its records.
36
<PAGE> 37
Procedure for
Rate Changes: Each time a decision has been reached to change rates, the
Company will promptly advise the Agents of the new rates,
who will forthwith suspend solicitation of purchases of
Notes at the prior rates. The Agents may telephone the
Company with recommendations as to the changed interest
rates.
Suspension of
Solicitation;
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for
any period of time or permanently, the solicitation of
orders to purchase Notes. Upon receipt of such instructions
(which may be given orally), each Agent will forthwith
suspend solicitation until such time as the Company has
advised it that solicitation of purchases may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have
the sole responsibility for such decision and for any
arrangements which may be made in the event that the Company
determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents and the Trustee
with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent
required by and in accordance with the terms of the Selling
Agent Agreement. Subject to the provisions of the Selling
Agent Agreement, the Company may file with the Commission
any supplement to the Prospectus relating to the Notes. The
Company will provide the Agents and the Trustee with copies
of any such supplement, and confirm to the Agents that such
supplement has been filed with the Commission.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee to
risk or expend its own funds in connection with any payment
to the Company, or the Agents or the purchasers, it being
understood by all parties that payments made by the Trustee
to either the Company or the Agents shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
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<PAGE> 38
Advertising
Costs: The Company shall have the sole right to approve the form
and substance of any advertising an Agent may initiate in
connection with such Agent's solicitation to purchase the
Notes. The expense of such advertising will be solely the
responsibility of such Agent, unless otherwise agreed to by
the Company.
38
<PAGE> 39
EXHIBIT C
CATERPILLAR FINANCIAL SERVICES CORPORATION
POWERNOTESSM
TERMS AGREEMENT
, 20
------------- --
Caterpillar Financial Services Corporation
2120 West End Avenue
Nashville, Tennessee 37203-0001
The undersigned agrees to purchase the following aggregate principal amount of
Notes:
$
-------
The terms of such Notes shall be as follows:
CUSIP Number:
---------
Interest Rate: %
---------
Maturity Date:
---------
Price to Public:
---------
Agent's Concession: %
---------
Settlement Date, Time
and Place:
---------
Survivor's Option:
---------
Interest Payment Dates:
---------
Optional Redemption, if any:
---------
Initial Redemption Date:
---------
Redemption Price: Initially % of Principal Amount and declining _____%
of the Principal Amount on each anniversary of the Initial Redemption
Date until the Redemption Price is 100% of the Principal Amount.
39
<PAGE> 40
[Any other terms and conditions agreed
to by such Agent and the Company]
ABN AMRO INCORPORATED
By:
--------------------------------------
Title:
-----------------------------------
ACCEPTED:
CATERPILLAR FINANCIAL SERVICES CORPORATION
By:
-------------------------------
Title:
----------------------------
40
<PAGE> 41
Exhibit D
Form of Pricing Supplement
POWERNOTES(SM)
----------
--------------------------------------------------------------------------------
----------
Pricing Supplement No. Trade Date:
(To prospectus supplement dated September 8, 2000) Issue Date:
The date of this Pricing Supplement is (date)
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------
CUSIP Stated
or Interest Price to Payment Survivor's
Common Code Rate Maturity Public (1) Reallowance Frequency Option Year Terms of Redemption
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
----------
(1) Actual Price to Public may be less, and will be determined by prevailing
market prices at the time of purchase as set forth in the confirmation
statement.
41
<PAGE> 42
EXHIBIT E
Form of Master Selected Dealer Agreement
[Name of Dealer]
[Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions
of this Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein (ABN AMRO Incorporated) (acting for its own account
or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "Offering". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any
Offering will be subject to delivery of the Securities and their acceptance by
us and any other Underwriters, may be subject to the approval of all legal
matters by counsel and the satisfaction of other conditions, and may be made on
the basis of reservation of Securities or an allotment against subscription. We
will advise you by telegram, telex or other form of written communication
("Written Communication", which term, in the case of any Offering described in
Section 3(a) or 3(b) hereof, may include a prospectus or offering circular) of
the particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Incorporated, 327 Plaza Real, Suite 225, Boca Raton, Florida 33432
(Telecopy: (561) 416-6180). We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by you
shall be paid for on such date as we shall determine, on one day's prior notice
to you, by certified
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or official bank check, in an amount equal to the Public Offering Prices (as
hereinafter defined) or, if we shall so advise you, at such Public Offering
Price less the Concession (as hereinafter defined), payable in New York Clearing
House funds to the order of ABN AMRO Incorporated, against delivery of the
Securities. If Securities are purchased and paid for at such Public Offering
Price, such Concession will be paid after the termination of the provisions of
Section 3(c) hereof with respect to such Securities. Notwithstanding the
foregoing, unless notified otherwise by us, payment for and delivery of
Securities purchased by you shall be made through the facilities of The
Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the Securities Act ("Registered Offering"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934 (the "Exchange Act") and the applicable rules and regulations of the
Securities and Exchange Commission thereunder. You represent and warrant that
you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of
any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering
of Securities, we will inform you by a Written Communication of the public
offering price, the selling concession,
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the reallowance (if any) to dealers and the time when you may commence selling
Securities to the public. After such public offering has commenced, we may
change the public offering price, the selling concession and the reallowance to
dealers. The offering price, selling concession and reallowance (if any) to
dealers at any time in effect with respect to an Offering are hereinafter
referred to, respectively, as the "Public Offering Price", the "Concession" and
the "Reallowance". With respect to each Offering of Securities, until the
provisions of this Section 3(c) shall be terminated pursuant to Section 4
hereof, you agree to offer Securities to the public at no more than the Public
Offering Price. If notified by us, you may sell securities to the public at a
lesser negotiated price than the Public Offering Price, but in an amount not to
exceed the Concession. If a Reallowance is in effect, a reallowance from the
Public Offering Price not in excess of such Reallowance may be allowed as
consideration for services rendered in distribution to dealers who are actually
engaged in the investment banking or securities business, who execute the
written agreement prescribed by section 24(c) of Article III of the Rules of
Fair Practice of the National Association of Securities Dealers. Inc. (the
"NASD") and who are either members in good standing of the NASD or foreign
banks, dealers or institutions not eligible for membership in the NASD who
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree not to
purchase and sell Securities for which an order from a client has not been
received without our consent in each instance. You further agree that, upon our
request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's mark-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually
engaged in the investment banking or securities business and either a member in
good standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which agrees
to make no sales within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein, and in making other
sales to comply with the NASD's interpretation with respect to free riding and
withholding. You
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further represent, by your participation in an Offering, that you have provided
to us all documents and other information required to be filed with respect to
you, any related person or any person associated with you or any such related
person pursuant to the supplementary requirements of the NASD's interpretation
with respect to review of corporate financing as such requirements relate to
such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling Concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of section 24 of Article III
of the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker
or dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provision of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling Concession, discount or other allowance is
granted to you, clauses (1) and (2) of the preceding paragraph will be
applicable.
(f) Relationship among Underwriters and Selected Dealers. We
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. You are not authorized to
act as agent for us, any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Neither we nor any
Underwriter shall be under any obligation to you except for obligations assumed
hereby or in any Written Communication from us in connection with any Offering.
Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you
as to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
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(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This Agreement may
be terminated by Written Communication to the other affected party or parties.
Until so terminated, this Agreement shall continue in full force and effect.
This Agreement may be supplemented or amended by us by written notice thereof to
you, and any such supplement or amendment to this Agreement shall be effective
with respect to any Offering to which this Agreement applies after the date of
such supplement or amendment. Each reference to "this Agreement" herein shall,
as appropriate, be to this Agreement as so amended and supplemented. The terms
and conditions set forth in Section 3(c) hereof with regard to any Offering will
terminate at the close of business on the 30th day after the commencement of the
public offering of the Securities to which such Offering relates, but in our
discretion may be extended by us for a further period not exceeding 30 days and
in our discretion, whether or not extended, may be terminated at any earlier
time.
5. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions
set forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from us to you in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of New York.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to. or your acceptance of any reservation of.
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters. (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3 (b)
hereof.
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Very truly yours,
ABN AMRO INCORPORATED
By:______________________________________
Name:____________________________________
Title:___________________________________
CONFIRMED: ________ __, 2000
(NAME OF DEALER)
By:_______________________________
Name:_____________________________
Title:____________________________
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