CATERPILLAR INTERNATIONAL FINANCE p.l.c. LOCAL CURRENCY ADDENDUM
EXHIBIT
99.3
CATERPILLAR
INTERNATIONAL FINANCE p.l.c.
LOCAL
CURRENCY
ADDENDUM dated as of September 21, 2006, to the Credit Agreement (as defined
below), among Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c., the Local Currency Banks (as defined below),
Citibank, N.A., as Agent, and Citibank International plc, as 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:
“Associated
Costs
Rate”
means
for any
Local Currency Advance for any Interest Period, a percentage rate per annum,
as
determined in accordance with Annex I attached hereto on the first day of such
Interest Period, determined by the Local Currency Agent as reflecting the cost,
loss or difference in return which would be suffered or incurred by the Local
Currency Banks as a result of: (a) funding (based on the Eurocurrency Rate
and
on a match funded basis) any special deposit or cash ratio deposit required
to
be placed with the Bank of England (or any other authority which replaces all
or
any of its functions) and/or (b) any charge imposed by the Financial Services
Authority (or any other authority which replaces all or any of its functions),
in each case to the extent attributable to such Local Currency
Advance.
“Credit
Agreement”
means
the Credit
Agreement (Five-Year Facility) dated as of September 21, 2006, among Caterpillar
Inc., Caterpillar Financial Services Corporation, Caterpillar International
Finance p.l.c., Caterpillar Finance Corporation, the financial institutions
from
time to time party thereto as Banks, Citibank, N.A., as Agent, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank
International plc, as Local Currency Agent, as the same may be amended, waived,
modified or restated from time to time.
“Local
Currency
Advance”
means
any
Advance, denominated in Pounds Sterling or euro, made to CIF pursuant to
Sections 2.03
and 2.03A
of the Credit
Agreement and this Addendum. A Local Currency Advance shall bear interest at
the
rate specified in Schedule II.
“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.
CH1
3608480v.2
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.
Local
Currency
Advances.
(a) This Addendum (as the same may be amended, waived, modified or
restated from time to time) is the “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 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 Local Currency Advances made
pursuant to this Addendum.
(c) Any
special borrowing procedures or funding arrangements for Local Currency Advances
under this Addendum, any provisions for the issuance of promissory notes to
evidence the Local Currency Advances made hereunder and any additional
information requirements applicable to 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 Local Currency Commitment, and the Local Currency Commitment and the
Same
Day Local Currency Commitment for each 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 Local Currency Agent and the Local Currency Banks, CIF may from time to
time
permanently reduce the Total Local Currency Commitment under this Addendum
in
whole, or in part ratably among the 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 Local Currency Commitment may not be reduced below the aggregate
principal amount of the outstanding Local Currency Advances with respect
thereto. Any such reduction shall be allocated pro rata among all the Local
Currency Banks party to this Addendum by reference to their Local Currency
Commitments.
ARTICLE
III
Representations
and
Warranties
Each
of CFSC and
CIF 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 CIF represents and warrants to each of the 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 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 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 Local
Currency Bank party hereto, CFSC and CIF unless there are no Local Currency
Advances outstanding hereunder, in which case no such consent of any 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 Local Currency Banks of obligations,
Local Currency Commitments and Advances hereunder; provided,
however,
that a Local
Currency Bank may not assign any obligations, Local Currency Commitments or
rights hereunder to any Person which is not (or does not simultaneously become)
a Bank under the Credit Agreement.
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 CIF, at
Caterpillar International Finance p.l.c., 0 Xxxxx Xxxx Xxxx, Xxxxxx 0 Xxxxxxx,
Attention: Funding Manager (Facsimile No. 353-1-670-0546) 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 Local
Currency Agent, at 4 Harbour Exchange Square, 2nd
Floor, London E14
9GE, England, Attention: Loans Agency (Telecopy No.:
00-000-000-00-00) 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 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
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
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 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 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 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 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 Local
Currency Advances obtained by all the Local Currency Banks, such Local Currency
Bank shall forthwith purchase from the other Local Currency Banks such
participations in the Local Currency Advances made by them as shall be necessary
to cause such purchasing 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
Local Currency Bank, such purchase from each other Local Currency Bank shall
be
rescinded and each such other Local Currency Bank shall repay to the purchasing
Local Currency Bank the purchase price to the extent of such recovery together
with an amount equal to such other Local Currency Bank’s ratable share
(according to the proportion of (i) the amount of such other Local Currency
Bank’s required repayment to (ii) the total amount so recovered from the
purchasing Local Currency Bank) of any interest or other amount paid or payable
by the purchasing Local Currency Bank in respect of the total amount so
recovered. CIF agrees that any Local Currency Bank so purchasing a participation
from another 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
Local Currency Bank were the direct creditor of CIF in the amount of such
participation.
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
Local Currency
Agent
SECTION
5.01
Appointment;
Nature of Relationship.
Citibank
International plc is appointed by the Local Currency Banks as the Local Currency
Agent hereunder and under the Credit Agreement, and each of the Local Currency
Banks irrevocably authorizes the Local Currency Agent to act as the contractual
representative of such Local Currency Bank with the rights and duties expressly
set forth herein and in the Credit Agreement applicable to the Local Currency
Agent. The 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 “Local Currency Agent,” it is
expressly understood and agreed that the Local Currency Agent shall not have
any
fiduciary responsibilities to any Local Currency Bank or other Bank by reason
of
this Addendum and that the Local Currency Agent is merely acting as the
representative of the Local Currency Banks with only those duties as are
expressly set forth in this Addendum and the Credit Agreement. In its capacity
as the Local Currency Banks’ contractual representative, the Local Currency
Agent (i) does not assume any fiduciary duties to any of the Banks, (ii) is
a
“representative” of the 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 Local Currency Banks agrees
to
assert no claim against the 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 Local
Currency Agent shall have and may exercise such powers under this Addendum
and
the Credit Agreement as are specifically delegated to the Local Currency Agent
by the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Local Currency Agent shall have neither any implied
duties or fiduciary duties to the Local Currency Banks or the Banks, nor any
obligation to the 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 Local Currency
Agent.
SECTION
5.03
General
Immunity.
Neither the 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.]
SECTION
5.05
Action
on
Instructions of Local Currency Banks.
The 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 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 Local Currency Banks. The 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 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 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 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 Local Currency Agent shall be entitled to advice of counsel
concerning the contractual arrangement among the Local Currency Agent and the
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 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, CIF or any
of
their respective Subsidiaries in which the 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
Local
Currency Agent.
The Local
Currency Agent (i) may resign at any time by giving written notice thereof
to
the Agent, the Local Currency Banks and the Borrowers, and may appoint one
of
its affiliates as successor Local Currency Agent and (ii) may be removed at
any
time with or without cause by the Majority Local Currency Banks. Upon any such
resignation or removal, the Majority Local Currency Banks, with the consent
of
the Agent, shall have the right to appoint (unless, in the case of the
resignation of the Local Currency Agent, the resigning Local Currency Agent
has
appointed one of its affiliates as successor Local Currency Agent), on behalf
of
the Borrowers and the Local Currency Banks, a successor Local Currency Agent.
If
no successor Local Currency Agent shall have been so appointed and shall have
accepted such appointment within thirty days after the retiring Local Currency
Agent’s giving notice of resignation or the Majority Local Currency Banks’
removal of the retiring Local Currency Agent, then the retiring Local Currency
Agent may appoint, on behalf of the Borrowers and the Local Currency Banks,
a
successor 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 Local Currency Agent shall be subject to written approval by CFSC
and
CIF, which approval shall not be unreasonably withheld. Such successor 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 Local
Currency Agent hereunder by a successor Local Currency Agent, such successor
Local Currency Agent shall thereupon succeed to and become vested with all
the
rights, powers, privileges and duties of the retiring Local Currency Agent,
and
the retiring Local Currency Agent shall be discharged from its duties and
obligations hereunder and under the Credit Agreement. After any retiring Local
Currency Agent’s resignation hereunder as 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 Local Currency Agent
hereunder and under the Credit Agreement.
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
INTERNATIONAL
FINANCE
p.l.c.
By:/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Appointee
By:/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Treasurer
CITIBANK,
N.A., as
the Agent
By:/s/Xxxxx
X.
Xxx
Name:
Xxxxx X.
Xxx
Title:
Vice
President
CITIBANK
INTERNATIONAL plc, as the Local Currency Agent
By:/s/Xxxx
Xxxxx
Name:
Xxxx
Xxxxx
Title:
Vice
President
BARCLAYS
BANK
PLC
By:/s/Xxxxxx
XxXxxxxx
Name:
Xxxxxx
XxXxxxxx
Title:
Associate
Director
COMMERZBANK
AG, NEW
YORK AND GRAND CAYMAN BRANCHES
By:/s/H.
Neugartner
Name:
Hajo
Neugartner
Title:
Vice
President
By:/s/Xxxxxx
Xxxxxx
Name:
Xxxxxx
Xxxxxx
Title:
Assistant
Vice President
SOCIÉTÉ
GÉNÉRALE
By:/s/Xxxxxxxx
Xxxxxxx
Name:
Xxxxxxxx
Xxxxxxx
Title:
Vice
President
ABN
AMRO BANK
N.V.
By:/s/Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx
Xxxxxxxxx
Title:
Managing
Director
By:/s/Xxxxxxx
Xxxx
Name:
Xxxxxxx
Xxxx
Title:
Vice
President
CITIBANK,
N.A.
By:/s/Xxxxx
X.
Xxx
Name:
Xxxxx X.
Xxx
Title:
Vice
President
LLOYDS
TSB BANK
plc
By:/s/Windsor
X. Xxxxxx
Name:
Windsor X.
Xxxxxx
Title:
Director,
Corporate Banking, USA
D061
By:/s/Xxxxxx
X. Xxxxxxxxxx
Name:Xxxxxx
X.
Xxxxxxxxxx
Title:
Assistant
Vice President
Financial
Institutions, USA
K-027
ROYAL BANK OF CANADA, acting through its London Branch
By:/s/Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx
Xxxxxxxx
Title:
Managing
Director, Corporate Banking
JPMORGAN
CHASE
BANK, N.A.
By:/s/Xxxxxxxx
Xxxxx
Name:
Xxxxxxxx
Xxxxx
Title:
Vice
President
KBC
BANK
N.V.
By:/s/Xxxx-Xxxxxx
Diels
Name:
Xxxx-Xxxxxx
Diels
Title:
First Vice
President
By:/s/Xxxxxxx
Xxxxxxxxx
Name:
Xxxxxxx
Xxxxxxxxx
Title:
Vice
President
WESTLB
AG, NEW YORK
BRANCH
By:/s/Xxxxxxxxx
Xxxxxxxxxx
Name:
Xxxxxxxxx
Xxxxxxxxxx
Title:
Managing
Director
By:/s/Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Executive
Director
SCHEDULE
I
Local
Currency
Banks
Local
Currency
Commitments
Total
Local
Currency Commitment
Applicable
Lending
Office
|
Local
Currency Bank Name
|
Local
Currency Commitment
|
Same
Day Local Currency Commitment
|
|
Citibank,
N.A.
|
US
$250,000,000
|
US
$56,250,000
|
|
Societe
Generale
|
US
$125,000,000
|
US
$31,250,000
|
|
Commerzbank
AG, New York and Grand Cayman Branches
|
US
$100,000,000
|
US
$31,250,000
|
|
Barclays
Bank
PLC
|
US
$125,000,000
|
US
$31,250,000
|
|
ABN
AMRO Bank
N.V.
|
US
$
75,000,000
|
US
$18,750,000
|
|
JPMorgan
Chase Bank, N.A.
|
US
$
75,000,000
|
US
$18,750,000
|
|
Royal
Bank of
Canada, acting through its London Branch
|
US
$
75,000,000
|
US
$18,750,000
|
|
Lloyds
TSB
Bank plc
|
US
$
75,000,000
|
XX
x00,000,000
|
|
XxxxXX
XX,
Xxx Xxxx Xxxxxx
|
XX
$
50,000,000
|
US
$12,500,000
|
|
KBC
Bank
N.V.
|
US
$
50,000,000
|
US
$12,500,000
|
|
|
|
|
Total
Local Currency Commitment:
|
US
$1,000,000,000
|
Total
Same Day Local Currency Sub-Facility:
|
US
$250,000,000
|
|
Local
Currency Bank Name
|
Applicable
Local Currency Lending Office
|
|
|
|
|
Citibank,
N.A.
|
Citibank
International plc
0
Xxxxxxx
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx
X00
0XX, Xxxxxxx
Attention:
Loans Agency
|
|
Societe
Generale
|
000
Xxxx
Xxxxxxx
Xxxxxxx,
XX
00000
Attention:
Xxxxxxxx Xxxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
Commerzbank
AG, New York and Grand Cayman Branches
|
Commerzbank
AG, Grand Cayman Branch
c/o
New York
Branch
Two
World
Financial Center
Xxx
Xxxx, XX
00000
Attention:
Xxxxx Xxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
Barclays
Bank
PLC
|
Global
Services Xxxx
00
Xxx Xxxxx
Xxxxxxxxx
Xxxxxx
Xxxxx
Xxxxxx
X00
0XX
Attention:
Xxxx Xxxxxx/Xxxxxx Xxxxx
Phone:
0000-000-0000 / 0000-000-0000
Fax:
0000-000-0000
|
|
ABN
AMRO Bank
N.V.
|
ABN
AMRO Bank
N.V.
000
X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX
00000
Attention:
Loan Administration
Phone:
000-000-0000
Fax:
000-000-0000
|
|
JPMorgan
Chase Bank
|
JPMorgan
Chase Bank
0000
Xxxxxx
Xx., Xxxxx 00
Xxxxxxx,
XX
00000
Attention:
Xxxxxxx X Xxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
Royal
Bank of
Canada, acting through its London Branch
|
Royal
Bank of
Canada
00
Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx XX0X 0XX
Attention:
Loans Administration
Phone:
000-00-00-0000-0000
Fax:
000-00-00-0000-0000
Copy
to:
Karim Amr
Phone:
000-00-00-0000-0000
Fax:
000-00-00-0000-0000
|
|
Lloyds
TSB
Bank plc
|
Lloyds
TSB
Bank plc
Xxxx
Xxxxx
Xxxx
Xxxxxx
Xxxxxxx
XX0
0XX
Attention:
Loans Administration (Xxxx Xxxxxx)
Phone:
0000
000 0000
Fax:
0000 000
0000
|
|
WestLB
AG,
New York Branch
|
WestLB
AG,
New York Branch
0000
Xxxxxxx
xx xxx Xxxxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxxx Xxxxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
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KBC
Bank
N.V.
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KBC
Bank
N.V.
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxx Xxxxx
Phone:
(000)
000-0000
Fax:
(000)
000-0000
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SCHEDULE
II
MODIFICATIONS
1. Business
Day
Definition:
“Business
Day”:
Same as Credit
Agreement.
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2.
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Interest
Payment Dates:
Same as
Credit Agreement. (See Section
2.07
of Credit
Agreement).
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3.
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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.
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Interest
Rates:
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Each
Local Currency
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 Eurocurrency Rate for
such Local Currency Advance for such Interest Period plus
(ii) the
Applicable Eurocurrency Margin as in effect from time to time during such
Interest Period plus
(iii) the
Associated Costs Rate (as set forth on Annex
I
hereto) for such Local Currency Advance for 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(c)
of the Credit
Agreement shall be applicable.
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5.
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Other:
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Additional
Conditions Precedent: None
Termination
Date
for Addendum: The “Termination Date” under the Credit Agreement.
Prepayment
Notices:
CIF shall be permitted to prepay a 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 Local Currency Agent not later than 10:00 a.m. (London
time) at least three (3) Business Days prior to the date of such
prepayment.
SCHEDULE
III
OTHER
PROVISIONS
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1.
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Borrowing
Procedures:
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(a) Notice
of Local
Currency Borrowing shall be given by CIF to the Local Currency Agent not later
than 11:00 a.m. (London time) on the third Business Day prior to the date of
the
proposed Local Currency Borrowing (or not later than 10:00 a.m. (London time)
on
the Business Day of the proposed Local Currency Borrowing, in the case of a
Local Currency Borrowing consisting of Same Day Local Currency Advances), and
the Local Currency Agent shall give each Local Currency Bank prompt notice
thereof in accordance with Section
4.03.
(b) Each
Notice of
Local Currency Borrowing shall be addressed to the Local Currency Agent at
its
address set forth in Section
4.03
and shall specify
the bank account to which the 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 Local Currency Borrowings, repayments and
prepayments:
Same
as Credit
Agreement.
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3.
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Promissory
Notes:
None
required.
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ANNEX
I
ASSOCIATED
COST
RATE FORMULAE
| 1. |
The
Associated Cost Rate is an addition to the interest rate to compensate
the
Local Currency Banks for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or,
in
either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central
Bank.
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| 2. |
On
the first
day of each Interest Period (or as soon as possible thereafter) the
Local
Currency Agent shall calculate, as a percentage rate, a rate (the
"Associated Cost Rate") for the Alternate Currency Banks, in accordance
with the paragraphs set out below. The Associated Cost Rate so determined
by the Local Currency Agent shall be the weighted average of the
Additional Cost Rates of each of the Local Currency Banks, weighted
in
proportion that the Local Currency Commitment of each such Local
Currency
Bank bears to the Total Local Currency Commitment. The Associated
Cost
Rate will be expressed as a percentage rate per
annum.
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| 3. |
The
Associated Cost Rate for a Local Currency Bank lending from a lending
installation in a member state of the European Communities that adopts
or
has adopted the euro as its lawful currency in accordance with legislation
of the European Union relating to European Monetary Union, will be
the
cost (stated as a percentage) of complying with the minimum reserve
requirements of the European Central
Bank.
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| 4. |
The
Associated Cost Rate for a Local Currency Bank lending from a lending
installation in the United Kingdom will be calculated by the Local
Currency Agent as follows:
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(a) in
relation to a
Local Currency Advance in Pounds Sterling:
AB
+ C (B -
D) + E x 0.01 percent
per
annum
100
- (A +
C)
(b) in
relation to a
Local Currency Advance in any Currency other than Pounds Sterling:
E
x
0.01 percent
per
annum
300
Where:
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A
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is
the
percentage of Eligible Liabilities (assuming these to be in excess
of any
stated minimum) which the Local Currency Bank is from time to time
required to maintain as an interest free cash ratio deposit with
the Bank
of England to comply with cash ratio
requirements.
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B
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is
the
percentage rate of interest (excluding the Applicable Margin and
the
Associated Cost Rate) payable for the relevant Interest Period on
the
Advance.
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C
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is
the
percentage (if any) of Eligible Liabilities which the Local Currency
Bank
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
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D
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is
the
percentage rate per annum payable by the Bank of England to the Local
Currency Bank on interest bearing Special
Deposits.
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E
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is
the rate
of charge payable by the Local Currency Bank to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees Regulations)
and
expressed in Pounds Sterling per £1,000,000 of the Fee Base of the Local
Currency Bank.
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| 5. |
For
the
purposes of this Schedule:
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(a) “Eligible
Liabilities”
and
“Special
Deposits”
have
the meanings
given to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) “Fees
Regulations”
means
the Banking
Supervision (Fees) Regulations 1999 or such other law or regulation as may
be in
force from time to time in respect of the payment of fees for banking
supervision; and
(c) “Fee
Base”
has
the meaning
given to it, and will be calculated in accordance with, the Fees
Regulations.
| 6. |
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e., 5 percent will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded to
four
decimal places.
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| 7. |
In
particular, but without limitation, each Local Currency Bank shall
supply
to the Agent and the Local Currency Agent the following information
in
writing on or prior to the date on which it becomes a Local Currency
Bank:
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(a) its
jurisdiction of
incorporation and the jurisdiction of its lending installation; and
(b) any
other
information that the Agent and the Local Currency Agent may reasonably require
for such purpose.
| 8. |
The
percentages or rates of charge of a Local Currency Bank for the purpose
of
A, C and E above shall be determined by such Local Currency Bank
based
upon the information supplied by it pursuant to paragraph 7 above
and on
the assumption that, unless the Local Currency Bank notifies the
Local
Currency Agent to the contrary, the Local Currency Bank’s obligations in
relation to cash ratio deposits, Special Deposits and the Fees Regulations
are the same as those of a typical bank from its jurisdiction of
incorporation with a lending installation in the same jurisdiction
as its
lending installation.
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| 9. |
The
Local
Currency Agent shall have no liability to any person if such determination
results in an Associated Cost Rate which over or under compensates
a Local
Currency Bank and shall be entitled to assume that the information
provided by a Local Currency Bank pursuant to paragraphs 3 and 7
above is
true and correct in all respects.
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| 10. |
Any
determination by the Local Currency Agent pursuant to this Schedule
in
relation to a formula, the Associated Cost Rate or any amount payable
to
the Local Currency Banks shall, in the absence of manifest error,
be
conclusive and binding on all of the parties to this
Addendum.
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Any
Local Currency
Bank may from time to time, after consultation with CFSC, CIF, the Local
Currency Agent and the Agent, determine and notify to all parties any amendments
which are required to be made to this Annex in order to comply with any change
in law, regulation or any requirements from time to time imposed by the Bank
of
England, the Financial Services Authority or the European Central Bank (or,
in
any case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be conclusive
and binding on all the parties to this Addendum.
