CATERPILLAR FINANCE CORPORATION JAPAN LOCAL CURRENCY ADDENDUM
EXHIBIT 99.2
CATERPILLAR
FINANCE CORPORATION
JAPAN
LOCAL
CURRENCY ADDENDUM
JAPAN
LOCAL
CURRENCY ADDENDUM, dated as of September 20, 2007, to the Credit Agreement
(as
defined below), among Caterpillar Financial Services Corporation, Caterpillar
Finance Corporation, the Japan Local Currency Banks (as defined below),
Citibank, N.A., as Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as
Japan
Local Currency Agent.
ARTICLE
I
Definitions
SECTION
1.01. Defined Terms. As used in this Addendum, the
following terms shall have the meanings specified below:
“Credit
Agreement” means the Credit Agreement (Five-Year Facility), dated as of
September 20, 2007, among Caterpillar Inc., Caterpillar Financial Services
Corporation, Caterpillar Finance Corporation, the financial institutions
from
time to time party thereto as Banks, Citibank, N.A., as Agent, and The Bank
of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, as the same may
be
amended, waived, modified or restated from time to time.
“Japan
Local
Currency Advance” means any Advance, denominated in Japanese Yen, made to
CFC pursuant to Sections 2.03 and 2.03A of the Credit
Agreement and this Addendum. A Japan Local Currency Advance shall
bear interest at the rate specified in Schedule II.
“Japan
Local
Currency Bank” means each Bank listed on the signature pages of this
Addendum or which becomes a party hereto pursuant to an Assignment and
Acceptance or an Assumption and Acceptance.
SECTION
1.02. Terms Generally. Unless otherwise defined
herein, terms defined in the Credit Agreement shall have the same meanings
in
this Addendum. Wherever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”. All references herein to Sections
and Schedules shall be deemed references to Sections of and Schedules to
this
Addendum unless the context shall otherwise require.
ARTICLE
II
The
Credits
SECTION
2.01. Japan Local Currency Advances.
(a) This
Addendum (as the same may be amended, waived, modified or restated from time
to
time) is the “Japan Local Currency Addendum” as defined in the Credit Agreement
and is, together with the borrowings made hereunder, subject in all respects
to
the terms and provisions of the Credit Agreement except to the extent that
the
terms and provisions of the Credit Agreement are modified by or are inconsistent
with this Addendum, in which case this Addendum shall control.
(b) Any
modifications to the interest payment dates, Interest Periods, interest rates
and any other special provisions applicable to Japan Local Currency Advances
under this Addendum are set forth on Schedule II. If
Schedule II states “None” or “Same as Credit Agreement” with respect to
any item listed thereon, then the corresponding provisions of the Credit
Agreement, without modification, shall govern this Addendum and the Japan
Local
Currency Advances made pursuant to this Addendum.
1
(c) Any
special borrowing procedures or funding arrangements for Japan Local Currency
Advances under this Addendum, any provisions for the issuance of promissory
notes to evidence the Japan Local Currency Advances made hereunder and any
additional information requirements applicable to Japan Local Currency Advances
under this Addendum are set forth on Schedule III. If no
such special procedures, funding arrangements, provisions or additional
requirements are set forth on Schedule III, then the corresponding
procedures, funding arrangements, provisions and information requirements
set
forth in the Credit Agreement shall govern this Addendum.
SECTION
2.02. Maximum Borrowing Amounts.
(a) The
Total Japan Local Currency Commitment, and the Japan Local Currency Commitment
for each Japan Local Currency Bank party to this Addendum as of the date
hereof,
are set forth on Schedule I.
(b) Upon
at least five (5) Business Days prior irrevocable written notice to the Agent,
the Japan Local Currency Agent and the Japan Local Currency Banks,
CFC may from time to time permanently reduce the Total Japan Local Currency
Commitment under this Addendum in whole, or in part ratably among the
Japan Local Currency Banks, in an aggregate minimum Dollar Amount of
$1,000,000, and integral multiples of $1,000,000 in excess thereof;
provided, however, that the amount of the Total Japan Local
Currency Commitment may not be reduced below the aggregate principal amount
of
the outstanding Japan Local Currency Advances with respect
thereto. Any such reduction shall be allocated pro rata among all the
Japan Local Currency Banks party to this Addendum by reference to their Japan
Local Currency Commitments.
ARTICLE
III
Representations
and Warranties
Each
of CFSC and
CFC makes and confirms each representation and warranty applicable to it
or any
of its Subsidiaries contained in Article IV of the Credit
Agreement. Each of CFSC and CFC represents and warrants to each of
the Japan Local Currency Banks party to this Addendum that no Event of Default,
or event which would constitute an Event of Default but for the requirement
that
notice be given or time elapse or both, has occurred and is continuing, and
no
Event of Default, or event which would constitute an Event of Default but
for
the requirement that notice be given or time elapse or both, shall arise
as a
result of the making of Japan Local Currency Advances hereunder or any other
transaction contemplated hereby.
ARTICLE
IV
Miscellaneous
Provisions
SECTION
4.01. Amendment; Termination.
(a) This
Addendum (including the Schedules hereto) may not be amended without the
prior
written consent of the Majority Japan Local Currency Banks hereunder and
subject
to the provisions of Section 8.01 of the Credit
Agreement.
(b) This
Addendum may not be terminated without the prior written consent of each
Japan
Local Currency Bank party hereto, CFSC and CFC unless there are no
Japan Local Currency Advances outstanding hereunder, in which case no
such consent of any Japan Local Currency Bank shall be required;
provided, however, that this Addendum shall terminate on the date
that the Credit Agreement terminates in accordance with its terms.
SECTION
4.02. Assignments.Section 8.07 of the Credit
Agreement shall apply to assignments by Japan Local Currency Banks of
obligations, Japan Local Currency Commitments and Japan Local Currency Advances
hereunder; provided, however, that a Japan Local Currency Bank may
not assign any obligations, Japan Local Currency Commitments or rights hereunder
to any Person which is not (or does not simultaneously become) a Bank under
the
Credit Agreement.
2
SECTION
4.03. Notices, Etc. Except as otherwise provided
herein, all notices and other communications provided for hereunder shall
be in
writing (including telegraphic, telex or telecopy communication) and mailed,
telegraphed, telexed, telecopied or delivered, as follows:
(a) if
to CFC, at Caterpillar Finance Corporation, SBS Tower 00X, 0-00-0 Xxxx,
Xxxxxxxx-xx, Xxxxx 158-0097, Japan, Attention: Managing Director
(Facsimile No. 000-0000-0000, with a copy to CFSC at its address and
telecopy number referenced in Section 8.02 of the Credit
Agreement;
(b) if
to CFSC, at its address and telecopy number referenced in Section 8.02 of
the Credit Agreement;
(c) if
to the Japan Local Currency Agent, at The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
Corporate Banking Division No. 3, Corporate Banking Group, 0-0, Xxxxxxxxxx
0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx, Xxxxxxxxx: Xx. Xxx Xxxxxx
(Telecopy No.: 00-0000-0000 / 00-0-0000-0000) with a copy to the
Agent at its address and telecopy number referenced in Section 8.02
of the Credit Agreement;
(d) if
to a Japan Local Currency Bank, at its address (and telecopy number) set
forth
in Schedule I or in the Assignment and Acceptance or Assumption and
Acceptance pursuant to which such Japan Local Currency Bank became a party
hereto;
(e) if
to the Agent, at its address at Bank Loan Syndications, Xxx Xxxxx Xxx, Xxxxx
000, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications,
Telecopier No. 000-000-0000, with a copy to Citicorp North America, Inc.,
000
Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx
X’Xxxxxxx;
or
as to each party, at such other address as shall be designated by such party
in
a written notice to the other parties. All such notices and
communications shall be deemed to have been given three (3) Business Days
after
deposit in the mail (registered or certified, with postage prepaid and properly
addressed), when delivered to the telegraph company, upon receipt of a telex
or
telecopy or when delivered in person or by courier service, except that notices
and communications to the Japan Local Currency Agent pursuant to Article
II or V hereof or Article II of the Credit Agreement shall not
be effective until received by the Japan Local Currency Agent.
SECTION
4.04. Ratification of Guaranty. By its execution of
this Addendum, CFSC ratifies and confirms its guaranty contained in Article
IX of the Credit Agreement with respect to the Japan Local Currency Advances
made pursuant to this Addendum which Guaranty remains in full force and
effect.
SECTION
4.05. Sharing of Payments, Etc. If any Japan Local
Currency Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of the Japan
Local Currency Advances made by it (other than pursuant to Section
2.02(c), 2.05(d), 2.10, 2.12 or 8.04 of the
Credit Agreement) in excess of its ratable share of payments on account of
the
Japan Local Currency Advances obtained by all the Japan Local Currency Banks,
such Japan Local Currency Bank shall forthwith purchase from the other Japan
Local Currency Banks such participations in the Japan Local Currency Advances
made by them as shall be necessary to cause such purchasing Japan Local Currency
Bank to share the excess payment ratably with each of them, provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Japan Local Currency Bank, such purchase from
each other Japan Local Currency Bank shall be rescinded and each such other
Japan Local Currency Bank shall repay to the purchasing Japan Local Currency
Bank the purchase price to the extent of such recovery together with an amount
equal to such other Japan Local Currency Bank’s ratable share (according to the
proportion of (i) the amount of such other Japan Local Currency Bank’s required
repayment to (ii) the total amount so recovered from the purchasing Japan
Local
Currency Bank) of any interest or other amount paid or payable by the purchasing
Japan Local Currency Bank in respect of the total amount so
recovered. CFC agrees that any Japan Local Currency Bank so
purchasing a participation from another Japan Local Currency Bank pursuant
to
this Section 4.05 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to
such
participation as fully as if such Japan Local Currency Bank were the direct
creditor of CFC in the amount of such participation.
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SECTION
4.06. Applicable Law. THIS ADDENDUM SHALL BE
GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION
4.07 Execution in Counterparts. This Addendum may
be executed in any number of counterparts and by different parties hereto
in
separate counterparts, each of which when so executed shall be deemed to
be an
original and all of which taken together shall constitute one and the same
agreement.
ARTICLE
V
The
Japan
Local Currency Agent
SECTION
5.01 Appointment; Nature of Relationship. The Bank
of Tokyo-Mitsubishi UFJ, Ltd. is appointed by the Japan Local Currency Banks
as
the Japan Local Currency Agent hereunder and under the Credit Agreement,
and
each of the Japan Local Currency Banks irrevocably authorizes the Japan Local
Currency Agent to act as the contractual representative of such Japan Local
Currency Bank with the rights and duties expressly set forth herein and in
the
Credit Agreement applicable to the Japan Local Currency Agent. The
Japan Local Currency Agent agrees to act as such contractual representative
upon
the express conditions contained in this Article
V. Notwithstanding the use of the defined term “Japan Local
Currency Agent,” it is expressly understood and agreed that the Japan Local
Currency Agent shall not have any fiduciary responsibilities to any Japan
Local
Currency Bank or other Bank by reason of this Addendum and that the
Japan Local Currency Agent is merely acting as the representative of the
Japan
Local Currency Banks with only those duties as are expressly set forth in
this
Addendum and the Credit Agreement. In its capacity as the Japan Local
Currency Banks’ contractual representative, the Japan Local Currency Agent (i)
does not assume any fiduciary duties to any of the Banks, (ii) is a
“representative” of the Japan Local Currency Banks within the meaning of Section
9-102 of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly
set
forth in this Addendum and the Credit Agreement. Each of the Japan
Local Currency Banks agrees to assert no claim against the Japan Local Currency
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Bank waives.
SECTION
5.02 Powers. The Japan Local Currency Agent shall
have and may exercise such powers under this Addendum and the Credit Agreement
as are specifically delegated to the Japan Local Currency Agent by the terms
of
each thereof, together with such powers as are reasonably incidental
thereto. The Japan Local Currency Agent shall have neither any
implied duties or fiduciary duties to the Japan Local Currency Banks or the
Banks, nor any obligation to the Japan Local Currency Banks or the Banks
to take
any action hereunder or under the Credit Agreement except any action
specifically provided by this Addendum or the Credit Agreement required to
be
taken by the Japan Local Currency Agent.
SECTION
5.03 General Immunity. Neither the Japan Local
Currency Agent nor any of its respective directors, officers, agents or
employees shall be liable to any of the Borrowers or any Bank for any action
taken or omitted to be taken by it or them hereunder or under the Credit
Agreement or in connection herewith or therewith except to the extent such
action or inaction is found in a final non-appealable judgment by a court
of
competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.
SECTION
5.04 No Responsibility for Advances, Creditworthiness, Collateral,
Recitals, Etc. [Intentionally Omitted. See Section
7.02 of the Credit Agreement for these provisions.]
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SECTION
5.05 Action on Instructions of Japan Local Currency
Banks. The Japan Local Currency Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under the
Credit Agreement in accordance with written instructions signed by Majority
Japan Local Currency Banks (except with respect to actions that require the
consent of all of the Banks as provided in the Credit Agreement, including,
without limitation, Section 8.01 thereof), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of
the
Japan Local Currency Banks. The Japan Local Currency Agent shall be
fully justified in failing or refusing to take any action hereunder and under
the Credit Agreement unless it shall first be indemnified to its satisfaction
by
the Japan Local Currency Banks pro rata against any and all liability, cost
and
expense that it may incur by reason of taking or continuing to take any such
action.
SECTION
5.06 Employment of Agents and Counsel. The Japan
Local Currency Agent may execute any of its duties hereunder and under the
Credit Agreement by or through employees, agents, and attorneys-in-fact,
and
shall not be answerable to the Banks or the Japan Local Currency Banks, except
as to money or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by
it
with reasonable care. The Japan Local Currency Agent shall be
entitled to advice of counsel concerning the contractual arrangement among
the
Japan Local Currency Agent and the Japan Local Currency Banks, as the case
may
be, and all matters pertaining to its duties hereunder and under the Credit
Agreement.
SECTION
5.07 Reliance on Documents; Counsel. [Intentionally
Omitted. See Section 7.02 of the Credit Agreement for these
provisions.]
SECTION
5.08 Other Transactions. The Japan Local Currency
Agent may accept deposits from, lend money to, and generally engage in any
kind
of trust, debt, equity or other transaction, in addition to those contemplated
by this Addendum or the Credit Agreement, with CFSC, CFC or any of their
respective Subsidiaries in which the Japan Local Currency Agent is not
prohibited hereby from engaging with any other Person.
SECTION
5.09
Bank Credit Decision. [Intentionally Omitted. See
Section 7.04 of the Credit Agreement for these provisions.]
SECTION
5.10 Successor Japan Local Currency Agent. The
Japan Local Currency Agent (i) may resign at any time by giving written notice
thereof to the Agent, the Japan Local Currency Banks and the Borrowers, and
may
appoint one of its affiliates as successor Japan Local Currency Agent and
(ii)
may be removed at any time with or without cause by the Majority Japan Local
Currency Banks. Upon any such resignation or removal, the Majority
Japan Local Currency Banks, with the consent of the Agent, shall have the
right
to appoint (unless, in the case of the resignation of the Japan Local Currency
Agent, the resigning Japan Local Currency Agent has appointed one of its
affiliates as successor Japan Local Currency Agent), on behalf of the Borrowers
and the Japan Local Currency Banks, a successor Japan Local Currency
Agent. If no successor Japan Local Currency Agent shall have been so
appointed and shall have accepted such appointment within thirty days after
the
retiring Japan Local Currency Agent’s giving notice of resignation or the
Majority Japan Local Currency Banks’ removal of the retiring Japan Local
Currency Agent, then the retiring Japan Local Currency Agent may appoint,
on
behalf of the Borrowers and the Japan Local Currency Banks, a successor Japan
Local Currency Agent, which need not be one of its
affiliates. Notwithstanding anything herein to the contrary, so long
as no Event of Default, or event which would constitute an Event of Default
but
for the requirement that notice be given, time elapse or both, has occurred
and
is continuing, each such successor Japan Local Currency Agent shall be subject
to written approval by CFSC and CFC, which approval shall not be unreasonably
withheld. Such successor Japan Local Currency Agent shall be a
commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as the Japan
Local Currency Agent hereunder by a successor Japan Local Currency Agent,
such
successor Japan Local Currency Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Japan
Local Currency Agent, and the retiring Japan Local Currency Agent shall be
discharged from its duties and obligations hereunder and under the Credit
Agreement. After any retiring Japan Local Currency Agent’s
resignation hereunder as Japan Local Currency Agent, the provisions of this
Article V shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Japan
Local Currency Agent hereunder and under the Credit Agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as a deed by their duly authorized officers, all as of the date
and
year first above written.
CATERPILLAR
FINANCE
CORPORATION
By: /s/
Xxxxx X. Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title: Director
By: /s/
Xxxxx X. Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title: Treasurer
6
CITIBANK,
N.A., as
the Agent
By: /s/
Xxxxx Xxx
Name: Xxxxx
Xxx
Title: Vice
President
7
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THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD.,
as the Japan Local Currency Agent
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By: /s/
Muneya Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
8
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Bank
By: /s/
Muneya Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
9
SCHEDULE
I
to
Japan Local
Currency Addendum
Japan
Local
Currency Banks
Japan
Local
Currency Commitments
Total
Japan Local
Currency Commitment
Applicable
Lending
Office
|
Japan
Local Currency Bank Name
|
Japan
Local Currency Commitment
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
US
$75,000,000
|
|
Total
Japan Local Currency Commitment:
|
US
$75,000,000
|
|
Japan
Local Currency Bank Name
|
Applicable
Japan Local Currency Lending Office
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
Corporate
Banking Division No. 3, Corporate Banking Group
0-0,
Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
Attention: Xx.
Xxx Xxxxxx
(Telephone
No.: 00-0000-0000 / 00-0-0000-0000)
(Facsimile
No.: 00-0000-0000 /
00-0-0000-0000)
|
SCHEDULE
II
to
Japan Local
Currency Addendum
MODIFICATIONS
1. Business
Day Definition:
“Business
Day”: Same as Credit Agreement.
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2.
|
Interest
Payment Dates: Same as Credit Agreement. (See
Section 2.07 of Credit
Agreement).
|
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3.
|
Interest
Periods: Same as Credit Agreement. (See
definition of “Interest Period”, Section 1.01, and Section
2.07(d) of Credit Agreement).
|
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4.
|
Interest
Rates:
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Each
Japan Local
Currency Advance that is a TIBO Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but
not
including) the last day of such Interest Period at a rate per annum equal
to the
sum of (i) the TIBO Rate for such Japan Local Currency Advance for such Interest
Period plus (ii) the Applicable TIBOR Margin as in effect from time to
time during such Interest Period; provided, however, after the
occurrence and during the continuance of an Event of Default or an event
that
would constitute an Event of Default but for the requirement that notice
be
given or time elapse or both, the provisions of Section 2.07(d) of the
Credit Agreement shall be applicable. Each Japan Local Currency
Advance that is a Japan Base Rate Advance shall bear interest during any
Interest Period at a per annum rate equal to the Japan Base Rate in effect
from
time to time during such Interest Period. The terms of Section 2.07
and the other provisions of the Credit Agreement shall otherwise govern the
accrual and payment of interest on Japan Local Currency Advances.
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5.
|
Other:
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Additional
Conditions Precedent: None
Termination
Date
for Addendum: The “Termination Date” under the Credit
Agreement.
Prepayment
Notices: CFC shall be permitted to prepay a Japan Local Currency
Advance subject to the provisions of Section 8.04(b) of the Credit
Agreement, on any Business Day, provided, in the case of any prepayment,
notice
thereof is given to the Japan Local Currency Agent not later than 10:00 a.m.
(Tokyo time) at least three (3) Business Days prior to the date of such
prepayment.
SCHEDULE
III
to
Japan Local
Currency Addendum
OTHER
PROVISIONS
|
1.
|
Borrowing
Procedures:
|
(a) Notice
of Japan Local Currency Borrowing shall be given by CFC to the Japan Local
Currency Agent not later than 10:00 a.m. (Tokyo time) on the third Business
Day
prior to the date of the proposed Japan Local Currency Borrowing (or not
later
than 10:00 a.m. (Tokyo time) on the Business Day of the proposed Japan Local
Currency Borrowing if such proposed Japan Local Currency Borrowing is requested
on a same-day basis), and the Japan Local Currency Agent shall give each
Japan
Local Currency Bank prompt notice thereof in accordance with Section
4.03.
(b) Each
Notice of Japan Local Currency Borrowing shall be addressed to the Japan
Local
Currency Agent at its address set forth in Section 4.03 and shall specify
the bank account to which the Japan Local Currency Advances are to be
made.
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2.
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Funding
Arrangements:
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Minimum
amounts/increments for Japan Local Currency Borrowings, repayments and
prepayments:
Same
as Credit
Agreement.
|
3.
|
Promissory
Notes: None
required.
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