TRI-PARTY AGREEMENT
Exhibit
4.6
This TRI-PARTY AGREEMENT (this "Instrument"), dated as of November 2, 2006, by and among CATERPILLAR INC., a Delaware corporation (the “Company”), CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, (the "Prior Trustee") and U. S. BANK NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America (the "Successor Trustee").
WITNESSETH
WHEREAS,
the
Company and the Prior Trustee entered into the Indenture dated as of May 1,
1987, as amended and supplemented (the "Indenture"), providing for the issuance
of the securities listed on Exhibit A hereto (the "Securities");
and
WHEREAS,
the Prior
Trustee has been acting as Trustee, Security Registrar and Paying Agent
(“Trustee”) under the Indenture; and
WHEREAS,
Section
610 of the Indenture provides that the Trustee may resign at any time by giving
notice to the Company; and
WHEREAS,
Section
610 of the Indenture further provides that in case the Trustee shall resign,
the
Company may appoint a successor Trustee; and
WHEREAS,
Section
611 of the Indenture further provides that the successor Trustee shall be
qualified under the provisions of Section 608 of the Indenture; and
WHEREAS,
Section
611 of the Indenture further provides that any successor Trustee appointed
under
the Indenture shall execute, acknowledge and deliver to the Company and to
the
Prior Trustee an instrument accepting such appointment, thereupon the removal
of
the Prior Trustee shall become effective and the Successor Trustee without
any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and responsibilities of the Prior Trustee;
NOW,
THEREFORE,
pursuant to the Indenture and in consideration of the covenants herein
contained, it is agreed as follows (words and phrases not otherwise defined
in
this Instrument having the definitions given thereto in the
Indenture):
1. Pursuant
to the
terms of the Indenture, the Prior Trustee has notified the Company that the
Prior Trustee is resigning as Trustee, Security Registrar and Paying Agent
under
the Indenture effective November 6, 2006 and upon the acceptance of appointment
by the Company of a Successor Trustee as evidenced by the signing of this
instrument (the "Effective Date").
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1
2. Effective
as of the
Effective Date, the Prior Trustee hereby assigns, transfers, delivers and
confirms to the Successor Trustee all of its rights, title and interest under
the Indenture and all of its rights, title, interests, capacities, privileges,
duties and responsibilities as Trustee, Security Registrar and Paying Agent
under the Indenture, except as set forth in paragraph 19 hereof.
3. The
Prior Trustee
agrees to execute and deliver such further instruments and shall take such
further actions as the Successor Trustee or the Company may reasonably request
so as to more fully and certainly vest and confirm in the Successor Trustee
all
of the rights, title, interests, capacities, privileges, duties and
responsibilities hereby assigned, transferred, delivered and confirmed to the
Successor Trustee, including, without limitation, the execution and delivery
of
any instruments required to assign all liens in the name of the Successor
Trustee.
4. Effective
as of the
Effective Date, the Company hereby accepts the resignation of the Prior Trustee
and the Company appoints the Successor Trustee as Successor Trustee under the
Indenture; and the Company confirms to the Successor Trustee all of the rights,
title, interest, capacities, privileges, duties and responsibilities of the
Trustee, Security Registrar and Paying Agent under the Indenture except as
set
forth in paragraph 19 hereof.
5. The
Company agrees
to execute and deliver such further instruments and to take such further action
as the Successor Trustee may reasonably request so as to more fully and
certainly vest and confirm in the Successor Trustee all the rights, title,
interests, capacities, privileges, duties and responsibilities hereby assigned,
transferred, delivered and confirmed to the Successor Trustee.
6. Effective
as of the
Effective Date, the Successor Trustee hereby accepts its appointment as
Successor Trustee, Security Registrar and Paying Agent under the Indenture
and
shall be vested with all of the rights, title, interests, capacities,
privileges, duties and responsibilities of the Trustee, Security Registrar
and
Paying Agent under the Indenture.
7. The
Successor
Trustee hereby represents that it is qualified and eligible under the provisions
of Sections 608 and 609 of the Indenture to be appointed Successor Trustee
and
hereby accepts the appointment as Successor Trustee and agrees that upon the
signing of this Instrument it shall become vested with all the rights, title,
interest, capacities, privileges, duties and responsibilities of the Prior
Trustee with like effect as if originally named as Trustee, Security Registrar
and Paying Agent under the Indenture.
8. The
Successor
Trustee shall cause notice of the removal, appointment and acceptance effected
hereby to be given to the owners of the Securities.
9. Effective
as of the
Effective Date, the Successor Trustee shall serve as Trustee, Security Registrar
and Paying Agent as set forth in the Indenture at its designated corporate
trust
office set forth in paragraph 13 hereof.
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2
10. The
Prior Trustee
hereby represents and warrants to the Successor Trustee that:
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a)
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To
the best
of its knowledge no Event of Default and no event which, after notice
or
lapse of time or both, would become an Event of Default has occurred
and
is continuing under the Indenture.
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b)
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No
covenant
or condition contained in the Indenture has been waived by the Prior
Trustee or to the best of its knowledge by the holders of the percentage
in aggregate principal amount of the Securities required by the Indenture
to effect any such waiver.
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c)
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There
is no
action, suit or proceeding pending or, to its knowledge, threatened
against the Prior Trustee before any court or governmental authority
arising out of any action or omission by the Prior Trustee as Trustee,
Security Registrar and Paying Agent under the
Indenture.
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d)
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As
of the
Effective Date, the Prior Trustee holds no moneys in any fund or
account
established by it as Trustee, Security Registrar and Paying Agent
under
the Indenture.
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11. Each
of the parties
hereto hereby represents and warrants for itself that as of the date hereof,
and
the Effective Date:
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a)
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it
has power
and authority to execute and deliver this Instrument and to perform
its
obligations hereunder, and all such action has been duly and validly
authorized by all necessary proceedings on its part;
and
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b)
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this
Instrument has been duly authorized, executed and delivered by it,
and
constitutes a legal, valid and binding agreement enforceable against
it in
accordance with its terms, except as the enforceability of this Instrument
may be limited by bankruptcy, insolvency or other similar laws of
general
application affecting the enforcement of creditor's rights or by
general
principles of equity limiting the availability of equitable
remedies.
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12. The
parties hereto
agree that this Instrument does not constitute an assumption by the Successor
Trustee of any liability of the Prior Trustee arising out of any actions or
inaction by the Prior Trustee under the Indenture.
13. The
parties hereto
agree that as of the Effective Date, all references to the Prior Trustee as
Trustee, Security Registrar or Paying Agent in the Indenture shall be deemed
to
refer to the Successor Trustee. From and after the Effective Date, all notices,
certificates or payments which were required by the terms of the Indenture
and
Securities to be given or paid to the Prior Trustee, as Trustee, Security
Registrar and Paying Agent, shall be given or paid to:
U.S.
Bank National
Association
Attn:
Corporate
Trust Services
EP-MN-WS3C
00
Xxxxxxxxxx
Xxxxxx
Xx.
Xxxx, XX
00000-0000
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3
14. The
removal,
appointment and acceptance effected hereby shall become effective as of the
opening of business on the Effective Date.
15. This
Instrument
shall be governed by and construed in accordance with the laws of the State
of
New York, without regard to conflicts of laws principles thereof.
16. This
Instrument may
be executed in any number of counterparts, each of which shall be an original,
but which counterpart, shall together constitute but one and the same
instrument.
17. Nothing
contained
in this Instrument shall in any way affect the obligations or rights of the
Company or the Prior Trustee. This Instrument shall be binding upon and inure
to
the benefit of the Company, the Prior Trustee and the Successor Trustee and
their respective successors and assigns.
18. All
fees paid to
the Prior Trustee in advance but unearned for the period from and after the
Effective Date shall be credited to any current fees owed the Prior Trustee
with
balance, if any, remitted to the Company and the fees payable by the Company
on
and after the Effective Date under the Indenture shall henceforth be invoiced
by
and paid to the Successor Trustee at such address and account as shall hereafter
be provided by the Successor Trustee to the Company.
19. This
Instrument
does not constitute a waiver or assignment by the Prior Trustee of any
compensation, reimbursement, expenses or indemnity to which it is or may be
entitled pursuant to the Indenture. The Company acknowledges its obligation
set
forth in Section 607 of the Indenture to indemnify the Prior Trustee for, and
to
hold the Prior Trustee harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Prior Trustee and arising
out
of or in connection with the acceptance or administration of the trust evidenced
by the Indenture (which obligation shall survive the execution
hereof).
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4
IN
WITNESS WHEREOF,
the parties hereto have caused this instrument to be duly executed by their
duly
authorized officers, all as of the date and year first above
written.
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CATERPILLAR
INC., as Company
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By:
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/s/
Xxxxx X. Xxxx
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Name
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Xxxxx
X.
Xxxx
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Title:
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Vice
President and Secretary
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CITIBANK,
N.A., as Prior Trustee
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By:
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/s/
Xxxxx Xxxx
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Name
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Xxxxx
Xxxx
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Title:
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Vice
President
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U.
S. BANK
NATIONAL ASSOCIATION, as Successor Trustee
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By:
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/s/
Xxxxxxx X. Xxxxxxxxxx
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Name
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Xxxxxxx
X.
Xxxxxxxxxx
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Title:
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Vice
President
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Page
5
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Exhibit
A
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|||||
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ISSUE
DESCRIPTION
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CUSIP
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OUTSTANDING
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INTEREST
DUE
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||
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9.375
DEBS
due 3/15/2021
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000000XX0
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$
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120,272,000
|
3/15
and
9/15
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9.375%
DEBS
due 8/15/2011
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000000XX0
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$
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123,275,000
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2/15
and
8/15
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|
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8%
DEBS due
2/15/2023
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000000XX0
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$
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82,154,000
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2/15
and
8/15
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7.25%
SEN
DEBS due 2009
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000000XX0
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$
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300,000,000
|
3/15
and
9/15
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7-3/8%
DEBS
due 3/1/2097
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149123
BE0
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$
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300,000,000
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3/1
and
9/1
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6.625%
DEBS
due 7/15/2028
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149123
BF7
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$
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300,000,000
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1/15
and
7/15
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6.55%
NOTES
due 2011
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149123
BH3
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$
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250,000,000
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5/1
and
11/1
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7.30%
DEBS
due 2031
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149123
BJ9
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$
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350,000,000
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5/1
and
11/1
|
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6.95%
DEBS
due 2042
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149123
BK6
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$
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250,000,000
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5/1
and
11/1
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5.30%
DEBS
due 2035
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149123
BL4
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$
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307,320,000
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3/15
and
9/15
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5.70%
NOTES
due 2016
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149123
BM2
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$
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500,000,000
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2/15
and
8/15
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6.05%
DEBS
due 2036
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149123
BN0
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$
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750,000,000
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2/15
and
8/15
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TOTAL
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$
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3,633,021,000
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6
