Contract
Β
EXHIBIT
99.1
Β
Β
(364-Day
Facility)
Β
Dated as of
September 18, 2008
Β
Among
Β
CATERPILLAR
FINANCIAL SERVICES CORPORATION,
and
CATERPILLAR FINANCE
CORPORATION,
as
Borrowers
Β
THE FINANCIAL
INSTITUTIONS NAMED HEREIN
as Banks
Β
CITIBANK,
N.A.,
as
Agent,
Β
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD.,
as Japan Local Currency
Agent
Β
ABN AMRO BANK
N.V.,
BANK OF AMERICA,
N.A.,
BARCLAYS BANK
PLC
X.X. XXXXXX
SECURITIES, INC.
and
SOCIETE
GENERALE
as
Arrangers
and
Β
Β
CITIGROUP GLOBAL
MARKETS INC.,
Β
as Sole Lead Arranger and
Sole Bookrunner
Β
Β
Β
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Β TABLE OF
CONTENTS
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ARTICLE IΒ DEFINITIONS AND ACCOUNTING
TERMS
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SECTION
1.01.Β Β Certain Defined
Terms
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SECTION
1.02.Β Β Computation of Time
Periods
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SECTION
1.03.Β Β Accounting Terms
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ARTICLE II AMOUNTS AND TERMS OF THE
ADVANCES
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SECTION
2.01.Β Β The Revolving Credit Advances; Allocation of
Commitments
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SECTION
2.02.Β Β Making the Revolving Credit
Advances
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SECTION
2.03.Β Β Voluntary Conversion or Continuation of Term Loan
Advances
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SECTION
2.04.Β Β Fees
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SECTION
2.05.Β Β Reduction of the Commitments; Bank
Additions
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SECTION
2.06.Β Β Repayment of
Advances
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SECTION
2.07.Β Β Interest on
Advances
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SECTION
2.08.Β Β Interest Rate
Determination
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SECTION
2.09.Β Β Prepayments of
Advances
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SECTION
2.10.Β Β Increased Costs; Capital Adequacy;
Illegality
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SECTION
2.11.Β Β Payments and
Computations.
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SECTION
2.12.Β Β Taxes
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SECTION
2.13.Β Β Sharing of Payments,
Etc
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SECTION
2.14.Β Β Tax Forms
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SECTION
2.15.Β Β Market Disruption; Denomination of Amounts in
Dollars
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SECTION
2.16.Β Β Extensions of the
Commitments
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SECTION
2.17.Β Β Term Loan Election
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ARTICLE III CONDITIONS OF
LENDING
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SECTION
3.01.Β Β Conditions Precedent to Initial
Advances
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SECTION
3.02.Β Β Conditions Precedent to Each
Borrowing
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SECTION
3.03.Β Β Conditions Precedent to Certain Borrowings
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ARTICLE IV REPRESENTATIONS AND
WARRANTIES
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SECTION
4.01.Β Β Representations and Warranties of the
Borrowers
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SECTION
4.02.Β Β Additional Representations and Warranties of CFSC and
CFC
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ARTICLE V COVENANTS OF THE
BORROWERS
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SECTION
5.01.Β Β Affirmative
Covenants
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SECTION
5.02.Β Β Negative Covenants
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SECTION
5.03.Β Β Financial Covenant of
Caterpillar
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SECTION
5.04.Β Β Financial and Other Covenants of CFSC
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ARTICLE VI EVENTS OF
DEFAULT
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SECTION
6.01.Β Β Events of Default
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ARTICLE VII AGENCY
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SECTION
7.01.Β Β Appointment and
Authority
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SECTION
7.02.Β Β Agent Individually
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SECTION
7.03.Β Β Duties of Agent; Exculpatory
Provisions
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SECTION
7.04.Β Β Reliance by Agent
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SECTION
7.05.Β Β Delegation of
Duties
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SECTION
7.06.Β Β Resignation of
Agent
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SECTION
7.08.Β Β No Other Duties,
Etc.
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ARTICLE VIII MISCELLANEOUS
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SECTION
8.01.Β Β Amendments, Etc.
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SECTION
8.08.Β Β Governing Law; Submission to Jurisdiction; Service of
Process
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SECTION
8.15.Β Β Treatment of
Information
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ARTICLE IX CFSC
GUARANTY
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Β
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EXHIBITS
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Form of
Note
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Notice of
Revolving Credit Borrowing
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Notice of
Japan Local Currency Borrowing
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Notice of
Allocation
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Notice of
Bank Addition
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Form of
Assignment and Acceptance
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Form of
Assumption and Acceptance
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Form of
Opinion of Counsel for each of Caterpillar and CFSC
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Form of
Opinion of Special New York Counsel to the Agent
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Form of
Compliance Certificate (Caterpillar)
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Form of
Compliance Certificate (CFSC)
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Form of Japan
Local Currency Addendum
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Β
Β
(364-Day
Facility)
Β
Dated
as of September 18, 2008
Β
Caterpillar Inc., a
Delaware corporation (βCaterpillarβ),
Caterpillar Financial Services Corporation, a Delaware corporation (βCFSCβ), Caterpillar
Finance Corporation, an entity organized under the laws of Japan (βCFCβ), the financial
institutions listed on the signature pages hereof and those financial
institutions that become βAdded Banksβ pursuant to Section 2.05(c), in each case
together with their respective successors and assigns (the βBanksβ), Citibank,
N.A. (βCitibankβ), as agent
(the βAgentβ)
for the Banks hereunder, and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as the
Japan Local Currency Agent, agree as follows:
Β
Β
DEFINITIONS
AND ACCOUNTING TERMS
Β
SECTION
1.01.Β Certain
Defined Terms.Β Β As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
Β
βAccumulated Other
Comprehensive Incomeβ means for CFSC on any date of determination the
aggregate amount, as such amount appears in CFSCβs financial statements,
compiled in accordance with generally accepted accounting principles, of (x)
CFSCβs translation adjustments related to its foreign currency transactions and
(y) adjustments to the market value of CFSCβs derivative instruments, as such
amounts are required to appear in CFSCβs financial statements pursuant to FASB
133.
Β
βActivitiesβ has the
meaning specified in Section 7.02(b).
Β
βAdded Bankβ means any
Bank which becomes a Bank hereunder, or whose Commitment is increased (to the
extent of such increase), pursuant to an Assumption and Acceptance as provided
in Section
2.05(c).
Β
βAdministrative
Questionnaireβ means an Administrative Questionnaire in a form supplied
by the Agent.
Β
βAdvanceβ means a
Revolving Credit Advance, a Japan Local Currency Advance or a Term Loan
Advance.
Β
βAffiliateβ means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
Β
βAgentβs Groupβ has
the meaning specified in Section 7.02(b).
Β
βAgreed Currenciesβ
means (i) Dollars, (ii) so long as such currency remains an Eligible Currency,
Pounds Sterling, Swiss Francs and euro, and (iii) any other Eligible Currency
which the Borrowers request the Agent to include as an Agreed Currency hereunder
and which is acceptable to each Bank with a Revolving Credit Commitment; provided, that the
Agent shall promptly notify each Bank of each such request and each such Bank
shall be deemed not to have agreed to each such request unless its written
consent thereto has been received by the Agent within five (5) Business Days
from the date of such notification by the Agent to such Bank.
Β
βAgreementβ means this
Credit Agreement (364-Day Facility) as it may from time to time be further
amended, restated, supplemented or otherwise modified from time to
time.
Β
βAllocated Commitmentβ
has the meaning specified in SectionΒ 2.01(b).
Β
βAllocationβ has the
meaning specified in SectionΒ 2.01(b).
Β
βAllocation
Percentageβ means, with respect to Caterpillar or CFSC at any time, such
Borrowerβs Allocation at such time divided by the Total Commitment at such
time.
Β
βApplicable Lending
Officeβ means, with respect to each Bank, such Bankβs Domestic Lending
Office in the case of a Base Rate Advance, such Bankβs Eurocurrency Lending
Office in the case of a Eurocurrency Rate Advance, and such Bankβs (or its
Affiliateβs) branch or agency, as specified by such Bank in the Japan Local
Currency Addendum, in the case of a Japan Local Currency Advance.
Β
βApplicable Marginβ
means (a) with respect to Base Rate Advances and Japan Base Rate Advances, the
greater of (i) the applicable Market Rate Spread minus 1.00% and (ii) 0.00%; and
(b) with respect to Eurocurrency Rate Advances and TIBO Rate Advances, the
applicable Market Rate Spread.
Β
βApproved Electronic
Communicationsβ means each Communication that any Borrower is obligated
to, or otherwise chooses to, provide to the Agent pursuant to this Agreement or
the Japan Local Currency Addendum or the transactions contemplated herein or
therein, including any financial statement, financial and other report, notice,
request, certificate and other information material; provided, however,
that, solely with respect to delivery of any such Communication by any Borrower
to the Agent and without limiting or otherwise affecting either the Agentβs
right to effect delivery of such Communication by posting such Communication to
the Approved Electronic Platform or the protections afforded hereby to the Agent
in connection with any such posting, βApproved Electronic Communicationβ shall
exclude (i)Β any notice that relates to a request for an extension of credit
(including any election of an interest rate or Interest Period relating
thereto), (ii) any notice of Conversion, Redenomination or continuation, and any
other notice, demand, communication, information, document and other material
relating to a request for a new, or a Conversion, Redenomination or continuation
of an existing, Advance, (iii)Β any notice pursuant to Section 2.09Β and any other notice
relating to the payment of any principal or other amount due under this
Agreement prior to the scheduled date therefor, (iv)Β all notices of any
Event of Default or unmatured Event of Default, (iv)Β any notice, demand,
communication, information, document and other material required to be delivered
to satisfy any of the conditions set forth in Article III or any other condition
to any Advance or other extension of credit hereunder or any condition precedent
to the effectiveness of this Agreement and (v) service of process.
Β
βApproved Electronic
Platformβ has the meaning specified in Section 8.02(d).
Β
βArrangersβ means ABN
Amro Bank, N.V., Bank of America, N.A., Barclays Bank PLC, X.X. Xxxxxx
Securities, Inc., SociΓ©tΓ© GΓ©nΓ©rale and Citigroup Global Markets
Inc.
Β
βAssignment and
Acceptanceβ means an assignment and acceptance entered into by an
assigning Bank and an assignee, and accepted by the Agent, in accordance with
Section 8.07
and in substantially the form of Exhibit C-1
hereto.
Β
βAssumption and
Acceptanceβ means an assumption and acceptance executed by an Added Bank
and the Borrowers, and accepted by the Agent, in accordance with Section 2.05(c) and
in substantially the form of Exhibit C-2
hereto.
Β
βAvailable Revolving Credit
Commitmentβ means, as to any Bank at any time, such Bankβs Revolving
Credit Commitment at such time minus the aggregate
Dollar Amount of such Bankβs outstanding Revolving Credit Advances.
Β
βBankβ has the meaning
specified in the introductory paragraph hereof.Β Β To the extent
applicable, any reference to a Bank or the Banks includes a reference to a Japan
Local Currency Bank or the Japan Local Currency Banks, and, to the extent
applicable, any reference to a Bank includes a reference to its Affiliate,
branch or agency which is a Japan Local Currency Bank.
Β
βBank Additionβ has
the meaning specified in Section
2.05(c).
Β
βBank Appointment
Periodβ has the meaning specified in Section 7.06.
Β
βBase Rateβ means, for
any Interest Period or any other period, a fluctuating interest rate per annum
as shall be in effect from time to time which rate per annum shall at all times
be equal to the highest of:
Β
(a)Β Β the
rate of interest announced publicly by Citibank in New York, New York, from time
to time, as Citibankβs base rate; or
Β
(b)Β Β the
sum (adjusted to the nearest 1/4 of one percent or, if there is no nearest 1/4
of one percent, to the next higher 1/4 of one percent) of (i) 1/2 of one percent
per annum, plus
(ii) the rate per annum obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money market banks,
such three-week moving average being determined weekly on each Monday (or, if
any such day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized standing selected by
Citibank by (B) a percentage equal to 100% minus the average of
the daily percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities) three-month
U.S. dollar nonpersonal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; or
Β
(c)Β Β 1/2
of one percent above the Federal Funds Rate as in effect from time to
time.
Β
βBase Rate Advanceβ
means an Advance in Dollars which bears interest as provided in Section
2.07(a).
Β
βBoard of Directorsβ
means either the board of directors of a Borrower or any duly authorized
committee of that board.
Β
βBorrowerβ means each
of Caterpillar, CFSC and CFC, and βBorrowersβ means all
of the foregoing.
Β
βBorrower Agentβ has
the meaning specified in Section
8.09.
Β
βBorrowingβ means a
Revolving Credit Borrowing, a Japan Local Currency Borrowing or a borrowing
composed of Term Loan Advances.
Β
βBTMUβ means The Bank
of Tokyo-Mitsubishi UFJ, Ltd.
Β
βBusiness Dayβ means a
day of the year (i) on which banks are not required or authorized to close in
New York City or Chicago, Illinois, (ii) if the applicable Business Day relates
to any Eurocurrency Rate Advance, on which dealings are carried on in the London
interbank market, (iii) if the applicable Business Day relates to any
Eurocurrency Rate Advance in euro or any other Agreed Currency other than
Dollars or Pounds Sterling, a day on which dealings are carried on in the London
interbank market and on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is operating or, as the case may be,
on which banks and foreign exchange markets are open for business in the
principal financial center for the Agreed Currency concerned, and (iv) if the
applicable Business Day relates to a Japan Local Currency Advance, on which
banks are generally open in Tokyo for the conduct of substantially all of their
commercial lending activities and on which dealings in Japanese Yen are carried
on in the Tokyo interbank market.
Β
βCapitalizationβ
means, as at any date, the sum of (i) Caterpillar Consolidated Debt at such
date, plus (ii)
stockholdersβ equity (including preferred stock) of Caterpillar at such
date.
Β
βCaterpillar Consolidated
Debtβ means, as at any date, the aggregate Debt of Caterpillar and its
Subsidiaries (other than CFSC) at such date.
Β
βCaterpillar Event of
Defaultβ means an Event of Default with respect to
Caterpillar.
Β
βCaterpillar Purchase
Claimsβ means the outstanding liens on or claims against or in respect of
any of the accounts receivable of Caterpillar or any of its Subsidiaries
(excluding CFSC and CFSCβs Subsidiaries) arising out of the sale or
securitization by Caterpillar or any of its Subsidiaries (excluding CFSC and
CSFCβs Subsidiaries) of such accounts receivable.
Β
Β βCFC Event of Defaultβ
means an Event of Default with respect to CFC.
Β
βCFSC Consolidated
Debtβ means, as at any date, the aggregate Debt of CFSC and its
Subsidiaries at such date excluding all obligations of CFSC (up to a maximum
amount equal to 5% of CFSCβs total assets at such date) pursuant to guaranties
of dealersβ obligations to the Dealer Capital Access Trust.
Β
βCFSC Event of
Defaultβ means an Event of Default with respect to CFSC.
Β
βCFSC Guarantyβ means
the guaranty by CFSC of the obligations of CFC under this Agreement and the
Japan Local Currency Addendum, which guaranty is contained in Article
IX.
Β
βCFSC Purchase Claimsβ
means the outstanding liens on or claims against or in respect of any of the
accounts receivable of CFSC or any of its Subsidiaries arising out of the sale
or securitization by CFSC or any such Subsidiaries ofΒ Β such accounts
receivable.
Β
βChange of Controlβ
means (a) with respect to CFSC, that Caterpillar shall cease to own free and
clear of all liens, claims, security interests or other encumbrances, 100% of
the outstanding shares of voting stock of CFSC on a fully diluted basis, and (b)
with respect to CFC, that either (i) CFSC and Caterpillar, in the aggregate,
shall cease to own, free and clear of all liens, claims, security interests or
other encumbrances, directly or indirectly through one or more Subsidiaries of
CFSC or Caterpillar, 90% or more of the outstanding shares of voting of stock of
CFC on a fully diluted basis or (ii) CFSC shall cease to own, free and clear of
all liens, claims, security interests or other encumbrances, directly or
indirectly through one or more of its Subsidiaries, 80% or more of the
outstanding shares of voting stock of CFC on a fully diluted basis.
Β
βClosing Dateβ means
September 18, 2008.
Β
βCodeβ means the
Internal Revenue Code of 1986, as amended from time to time, and any successor
statute.
Β
βCommitmentβ means,
for each Bank, the obligation of such Bank to make (a)Β Revolving Credit
Advances and (b) if it is a Japan Local Currency Bank, Japan Local Currency
Advances, in an aggregate amount not to exceed the amount set forth opposite
such Bankβs name under the βCommitmentβ heading on its signature page hereto, or
on the signature page of the Assignment and Acceptance by which it became a Bank
hereunder, as such amount may be increased or reduced pursuant to the terms of
this Agreement.
Β
Β βCommunicationsβ means
each notice, demand, communication, information, document and other material
provided for hereunder or under the Japan Local Currency Addendum or otherwise
transmitted between the parties hereto relating to this Agreement, the Japan
Local Currency Addendum, any Borrower or its Affiliates, or the transactions
contemplated by this Agreement or the Japan Local Currency Addendum, including,
without limitation, all Approved Electronic Communications.
Β
βConsolidated Net Tangible
Assetsβ means as of any particular time, for any Borrower, the aggregate
amount of assets after deducting therefrom (a) all current liabilities, (b) any
current liability which has been reclassified as a long-term liability because
such liability by its terms is extendable or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which the
amount thereof is being computed, and (c) all goodwill, excess of cost over
assets acquired, patents, copyrights, trademarks, trade names, unamortized debt
discount and expense and other like intangibles, all as shown in the most recent
consolidated financial statements of such Borrower and its Subsidiaries prepared
in accordance with generally accepted accounting principles.
Β
βConsolidated Net
Worthβ means as at any date, (i) for Caterpillar, the stockholdersβ
equity (including preferred stock) of Caterpillar at such date, and (ii) for
CFSC, the stockholdersβ equity (including preferred stock but excluding
Accumulated Other Comprehensive Income) of CFSC on such date.
Β
βControlβ means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise.Β Β βControllingβ and
βControlledβ
have meanings correlative thereto.
Β
βConvertβ, βConversionβ, and
βConvertedβ
each refer to a conversion of Advances of one Type into Advances of another Type
pursuant to Section
2.03(a), 2.10, or 2.15(a).
Β
βCredit Ratingβ means,
at any time, with respect to Caterpillar or CFSC, the credit rating on such
Borrowerβs long-term senior unsecured debt then most recently publicly announced
by either Xxxxxβx or S&P, and βCredit Ratingsβ means
with respect to each such Borrower, such credit ratings from both Xxxxxβx and
S&P.Β Β In the case of CFC, βCredit Ratingβ and βCredit Ratingsβ
mean, at any time, the Credit Rating and Credit Ratings of CFSC at such time, as
determined pursuant to the preceding sentence.
Β
βCurrent Termination
Dateβ means, with respect to any Bank at any time, September 17, 2009 or
such later date to which the βCurrent Termination Dateβ shall then have been
extended with the consent of such Bank pursuant to Section 2.16.
Β
βDebtβ means (i)
indebtedness for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services, (iv) obligations as lessee
under leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, (v) obligations
under direct or indirect guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv) above, and (vi) liabilities in
respect of unfunded vested benefits under Plans covered by Title IV of ERISA;
provided, however, for purposes
of Sections
5.03(a) and (b) and 5.04(a) only, clause
(vi) above shall include only those liabilities of the applicable Borrower and
all ERISA Affiliates for such Borrowerβs then current fiscal year (and, if such
liabilities are still outstanding, for prior fiscal years) to (a) all single
employer plans (as defined in Section 4001(a)(15) of ERISA) to meet the minimum
funding standard requirements of Section 412(a) of the Code (without regard to
any waiver under Section 412(d) of the Code) and (b) all multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) for all required contributions and
payments.
Β
βDefaulting Bankβ has
the meaning specified in Section
2.02(c).
Β
βDollar Amountβ means,
for any currency at any date (i) the amount of such currency if such currency is
Dollars or (ii) the Equivalent Amount of Dollars if such currency is any
currency other than Dollars.
Β
βDollarsβ and the sign
β$β each means
lawful money of the United States of America.
Β
βDomestic Lending
Officeβ means, with respect to any Bank, the office of such Bank
specified as its βDomestic Lending
Officeβ on its respective signature page hereto or such other office of
such Bank as such Bank may from time to time specify to the Borrowers and the
Agent.
Β
βEligible Currencyβ
means any currency other than Dollars with respect to which the Agent or a
Borrower has not given notice in accordance with Section 2.15(a) and
that is readily available, freely traded, in which deposits are customarily
offered to banks in the London interbank market, convertible into Dollars in the
international interbank market, available to the Banks in such market and as to
which an Equivalent Amount may be readily calculated.Β Β If, after the
designation by the Banks of any currency as an Agreed Currency, (i) currency
control or other exchange regulations are imposed in the country or jurisdiction
in which such currency is issued with the result that different types of such
currency are introduced, or such currency is, in the determination of the Agent,
no longer readily available or freely traded or (ii) in the determination of the
Agent, an Equivalent Amount with respect to such currency is not readily
calculable (each of clause (i) and (ii), a βDisqualifying
Eventβ), then the Agent shall promptly notify the Banks and the
Borrowers, and such currency shall no longer be an Agreed Currency until such
time as the Disqualifying Event(s) no longer exist, but in any event within five
(5) Business Days of receipt of such notice from the Agent, the Borrowers shall
repay all Advances in such currency to which the Disqualifying Event
applies.
Β
βEligible Financial
Institutionβ means, as of the date of any assignment as contemplated in
Section
8.07(a)(ii), a commercial bank or financial institution (i) with a credit
rating on its long-term senior unsecured debt of either (a) βAA-β or better from
S&P or (b) βAa3β or better from Xxxxxβx; and (ii) having shareholders'
equity of not less than $5,000,000,000.
Β
βEquivalent Amountβ
means, for any currency with respect to any amount of Dollars at any date, the
equivalent in such currency of such amount of Dollars, calculated on the basis
of the arithmetic mean of the buy and sell spot rates of exchange of the Agent
or the Japan Local Currency Agent, as applicable, in the London interbank market
(or other market where the Agentβs foreign exchange operations in respect of
such currency are then being conducted) or, in the case of Japanese Yen, in the
Tokyo interbank market for such other currency at or about 11:00 a.m. (local
time applicable to the transaction in question) two (2) Business Days prior to
the date on which such amount is to be determined (provided that if an
Equivalent Amount is being determined with respect to the making of a Japan
Local Currency Advance on a same-day basis, such amount shall be determined at
or about 11:00 a.m. (Tokyo time) on the date of such Japan Local Currency
Advance), rounded up to the nearest amount of such currency as determined by the
Agent or the Japan Local Currency Agent, as applicable, from time to time; provided, however, that if at
the time of any such determination, for any reason, no such spot rate is being
quoted, the Agent or the Japan Local Currency Agent, as applicable, may use any
reasonable method it deems appropriate (after consultation with the Borrowers)
to determine such amount, and such determination shall be conclusive, absent
manifest error.
Β
βERISAβ means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any successor statute.
Β
βERISA Affiliateβ
means each trade or business (whether or not incorporated) which together with a
Borrower or a Subsidiary of such Borrower would be deemed to be a single
employerβ within the meaning of Section 4001 of ERISA.
Β
βERISA Termination
Eventβ means (i) a βReportable Eventβ described in Section 4043 of ERISA
and the regulations issued thereunder (other than a βReportable Eventβ not
subject to the provision for 30-day notice to the PBGC under such regulations),
or (ii) the withdrawal of a Borrower or any of its ERISA Affiliates from a
βsingle employerβ Plan during a plan year in which it was a βsubstantial
employerβ, both of such terms as defined in Section 4001(a) of ERISA, or (iii)
the filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate a Plan by the PBGC or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or (vi)
the partial or complete withdrawal of a Borrower or any ERISA Affiliate of such
Borrower from a βmultiemployer planβ as defined in Section 4001(a) of
ERISA.
Β
βeuroβ means the euro
referred to in the Council Regulation E.C. No. 1103/97 dated 17 June 1997 passed
by the Council of the European Union, or, if different, the then lawful currency
of the member states of the European Union that participate in the third stage
of the Economic and Monetary Union.
Β
βEurocurrency Base
Rateβ means, with respect to a Eurocurrency Rate Advance for the relevant
Interest Period:
Β
(a)Β Β for
any Eurocurrency Rate Advance in any Agreed Currency other than
euro:Β Β the applicable British Bankersβ Association Interest Settlement
Rate for deposits in the Agreed Currency appearing on Reuters Screen LIBOR01 (or
other applicable Screen for such Agreed Currency) as of 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period, and having
a maturity equal to such Interest Period; provided, that (i) if
Reuters Screen LIBOR01 is not available to the Agent for any reason, the
applicable Eurocurrency Base Rate for the relevant Interest Period shall instead
be the applicable British Bankersβ Association Interest Settlement Rate for
deposits in the Agreed Currency as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period, and having a maturity equal
to such Interest Period, and (ii) if no such British Bankersβ Association
Interest Settlement Rate is available to the Agent, the applicable Eurocurrency
Base Rate for the relevant Interest Period shall instead be the rate determined
by the Agent as the arithmetic average (rounded upward, if necessary, to an
integral multiple of 1/16 of 1%) of the rates per annum reported to the Agent by
each Reference Bank as the rate at which such Reference Bank offers to place
deposits in the Agreed Currency with leading banks in the London interbank
market at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, in the approximate amount of such
Reference Bankβs relevant Eurocurrency Rate Advance and having a maturity equal
to such Interest Period.Β Β If either Reference Bank fails to provide
such quotation to the Agent, then the Agent shall determine the Eurocurrency
Base Rate on the basis of the quotations from the remaining Reference
Bank.
Β
(b)Β Β for
any Eurocurrency Rate Advance in euro:Β Β the interest rate per annum
equal to the rate determined by the Agent to be the rate at which deposits in
euro appear on Reuters Screen EURIBOR RATES/EURIBOR RATES ACT/360 as of 11:00
a.m. (Brussels time), on the date that is two (2) TARGET Settlement Days
preceding the first day of such Interest Period; provided, that if
such rate does not appear on Reuters Screen EURIBOR RATES/EURIBOR RATES ACT/360,
then an interest rate per annum equal to the arithmetic average (rounded upwards
to the nearest .01%) determined by the Agent of the rates per annum reported to
the Agent by each Reference Bank as the rate at which deposits in euro are
offered by such Reference Bank at approximately 11:00 a.m. (Brussels time), on
the day that is two (2) TARGET Settlement Days preceding the first day of such
Interest Period to other leading banks in the euro-zone interbank
market.Β Β For purposes of this Agreement, βTARGET Settlement Dayβ means
any Business Day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open.
Β
Any Eurocurrency
Base Rate determined on the basis of the rate displayed on a Reuters Screen in
accordance with the foregoing provisions of this subparagraph shall be subject
to corrections, if any, made in such rate and displayed by the Reuters Service
within one hour of the time when such rate is first displayed by such
service.
Β
βEurocurrency Lending
Officeβ means, with respect to any Bank, the office of such Bank
specified as its βEurocurrency Lending Officeβ on its respective signature page
hereto (or, if no such office is specified, its Domestic Lending Office), or
such other office of such Bank as such Bank may from time to time specify to the
Borrowers and the Agent.Β Β A Bank may specify different offices for its
Advances denominated in Dollars and its Advances denominated in Agreed
Currencies, respectively, and the term βEurocurrency Lending Officeβ shall refer
to any or all such offices, collectively, as the context may require when used
in respect of such Bank.
Β
βEurocurrency
Liabilitiesβ has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
Β
βEurocurrency Rateβ
means, with respect to an Advance for the relevant Interest Period, an interest
rate obtained by dividing (a) the Eurocurrency Base Rate applicable to such
Interest Period by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage, such Eurocurrency Rate to be adjusted
automatically on and as of the effective date of any change in the Eurocurrency
Rate Reserve Percentage.
Β
βEurocurrency Rate
Advanceβ means an Advance denominated in Dollars or in an Agreed Currency
which bears interest as provided in Section
2.07(b).
Β
βEurocurrency Rate Reserve
Percentageβ means for any date that percentage (expressed as a decimal)
which is in effect on such date, as prescribed by the Board of Governors of the
Federal Reserve System for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect of Eurocurrency
Liabilities having a term equal to the applicable Interest Period (or in respect
of any other category of liabilities which includes deposits by reference to
which the interest rate on Eurocurrency Rate Advances is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any bank to United States residents).
Β
βEvents of Defaultβ
has the meaning specified in Section
6.01.
Β
βExtended Termination
Dateβ has the meaning specified in Section
2.16(c).
Β
βExtension Confirmation
Dateβ has the meaning specified in Section
2.16(b).
Β
βExtension Confirmation
Noticeβ has the meaning specified in Section
2.16(b).
Β
βExtension Requestβ
has the meaning specified in Section
2.16(a).
Β
βFacility Feeβ has the
meaning specified in Section
2.04.
Β
βFacility Fee Rateβ
has the meaning specified in Section
2.04.
Β
βFacility Termination
Dateβ means the earlier to occur of (i) the Current Termination Date then
in effect, or, if the Term Loan Election has been exercised, the Term Loan
Repayment Date, and (ii) the date of termination in whole of the Commitments
pursuant to Section
2.05(a) or 6.01.
Β
βFederal Funds Rateβ
means, for any period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it.
Β
βFive-Year Credit
Agreementsβ means (a) that certain Credit Agreement (Five Year Facility),
dated as of September 21, 2006, among the Borrowers and Caterpillar
International Finance Limited (f/k/a Caterpillar International Finance p.l.c.),
as Borrowers thereunder, certain financial institutions party thereto, BTMU, as
Japan Local Currency Agent, Citibank International plc, as Local Currency Agent,
and Citibank, as agent for such banks, and (b) that certain Credit Agreement
(Five-Year Facility), dated as of September 20, 2007, among the Borrowers as
Borrowers thereunder, certain financial institutions party thereto, BTMU, as
Japan Local Currency Agent, and Citibank, as agent for such banks, in each case,
as the same may be amended, restated, supplemented or otherwise modified from
time to time.
Β
βInformation
Memorandumβ means the Confidential Information Memorandum dated August
2008 in the form approved by the Borrowers concerning the Borrowers and their
Subsidiaries which, at the Borrowersβ request and on their behalf, was prepared
in relation to the transactions contemplated by this Agreement and distributed
by the Arranger to selected financial institutions before the date of this
Agreement.
Β
βInterest Expenseβ has
the meaning specified in Section
5.04(b).
Β
βInterest Periodβ
means for each Advance comprising part of the same Borrowing, the period
commencing on the date of such Advance, or the date of the Conversion,
continuation or Redenomination, as applicable, of such Advance, and ending on
the last day of the period selected by a Borrower pursuant to the provisions
below.Β Β The duration of each such Interest Period shall be (a) in the
case of a Base Rate Advance or a Japan Base Rate Advance, 30 days and (b) in the
case of a Eurocurrency Rate Advance or a TIBO Rate Advance, 1, 2, 3 or 6 months,
in each case as a Borrower may, in the Notice of Borrowing requesting such
Advance, select; provided, however,
that:
Β
Β Β Β Β (i)Β Β the
duration of any Interest Period which would otherwise end after the Revolving
Credit Termination Date, or, in the case of a Term Loan Advance, the Term Loan
Repayment Date, shall end on the Revolving Credit Termination Date, or, in the
case of a Term Loan Advance, the Term Loan Repayment Date;
Β
Β Β Β Β (ii)Β Β Interest
Periods commencing on the same date for Advances comprising part of the same
Borrowing shall be of the same duration; and
Β
Β Β Β Β (iii)Β Β whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, in the case
of any Interest Period for a Eurocurrency Rate Advance or a TIBO Rate Advance,
that if such extension would cause the last day of such Interest Period to occur
in the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day.
Β
βJapan Base Rateβ
means, for any Interest Period or any other period, a fluctuating interest rate
per annum equal to the rate of interest announced publicly by BTMU in Tokyo,
Japan, from time to time, as BTMUβs short-term base rate.
Β
βJapan Base Rate
Advanceβ means a Japan Local Currency Advance which bears interest as
provided in Section
2.07(a).
Β
βJapan Local Currency
Addendumβ means the local currency addendum dated as of the date hereof
among CFC, CFSC, the Japan Local Currency Banks named therein, the Japan Local
Currency Agent and the Agent, substantially in the form of Exhibit
G.
Β
βJapan Local Currency
Advanceβ means any Advance in Japanese Yen, made to CFC pursuant to Sections 2.03A and
2.03B and the
Japan Local Currency Addendum.
Β
βJapan Local Currency
Agentβ means BTMU, as agent under the Japan Local Currency Addendum, or
any successor agent under the Japan Local Currency Addendum.
Β
βJapan Local Currency
Bankβ means each Bank (or any Affiliate, branch or agency thereof) party
to the Japan Local Currency Addendum.Β Β In the event any agency, branch
or Affiliate of a Bank shall be party to the Japan Local Currency Addendum, such
agency, branch or Affiliate shall, to the extent of any commitment extended and
any Advances made by it, have all the rights of such Bank hereunder; provided, however, that, except
as otherwise expressly provided herein, such Bank shall continue, to the
exclusion of such agency or Affiliate, to have all the voting and consensual
rights vested in it by the terms hereof.
Β
βJapan Local Currency
Borrowingβ means a borrowing comprised of simultaneous Japan Local
Currency Advances made to CFC by each of the Japan Local Currency Banks pursuant
to Sections
2.03A and 2.03B and the Japan
Local Currency Addendum.
Β
βJapan Local Currency
Commitmentβ has the meaning specified in Section
2.03A(a).
Β
βJapanese Yenβ means
the lawful currency of Japan.
Β
βLeverage Ratioβ has
the meaning specified in Section
5.04(a).
Β
βMajority Banksβ means
at any time Banks holding more than 50% of the Commitments, or if the
Commitments have been terminated, Banks holding more than 50% of the then
aggregate unpaid principal amount of the Advances.
Β
βMajority Japan Local
Currency Banksβ means Japan Local Currency Banks holding more than 50% of
the Japan Local Currency Commitments.
Β
βMarket Rate Spreadβ
means, for any Advance for any Interest Period, the rate per annum equal to the
one-year credit default swap mid-rate spread of (a) Caterpillar in the case of
any Advance made to Caterpillar or (b) CFSC in the case of any Advance made to
CFSC or CFC, as provided by the Quotation Agency for the one-year period
beginning on the Rate Set Date (as defined below), appearing on the Quotation
Agencyβs website as of 12:00 noon (New York City time) or otherwise delivered by
the Quotation Agency to the Agent, in each case two Business Days prior to the
first day of such Interest Period (the βRate Set Dateβ);
provided, that
the Market Rate Spread shall in no event be less than a rate per annum equal to
0.25% or greater than the applicable Maximum Market Rate Spread, in each case as
of the applicable Rate Set Date; provided, further that in the
event that the Market Rate Spread is not available from the Quotation Agency on
the Rate Set Date for any Interest Period, the Market Rate Spread for such
Interest Period shall be the Maximum Market Rate Spread on such Rate Set
Date.
Β
βMaximum Market Rate
Spreadβ shall mean, as of any date of determination, with respect to any
Advance, a rate per annum equal to 0.75%; provided, that,
commencing on the Term Loan Effective Date, the Maximum Market Rate Spread shall
be a rate per annum equal to 1.00%.
Β
βMoodyβsβ means
Xxxxxβx Investors Service, Inc. or any successor thereto, and if Moodyβs ceases
to issue ratings of the type described herein with respect to Persons generally,
then the Borrowers and the Agent, with the consent of the Majority Banks, shall
agree upon a mutually acceptable replacement debt rating agency and shall
further agree, upon determination of such replacement agency, to determine
appropriate equivalent ratings levels to replace those contained
herein.
Β
βNoteβ has the meaning
specified in Section
2.02(f).
Β
βNotice of Allocationβ
has the meaning specified in Section
2.01(b).
Β
βNotice of Borrowingβ
means aΒ Β Notice of Japan Local Currency Borrowing or a Notice of
Revolving Credit Borrowing, as applicable.
Β
βNotice of Japan Local
Currency Borrowingβ has the meaning specified in Section
2.03B(a).
Β
βNotice of Revolving Credit
Borrowingβ has the meaning specified in Section
2.02(a).
Β
βPayment Officeβ means
(a) with respect to Advances other than Japan Local Currency Advances, (i) for
Dollars, the principal office of Citibank in New York City, located on the date
hereof at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) for any other Agreed
Currency, the office of Citibank located on the date hereof at 0000 Xxxxx Xxxx,
Xxx Xxxxxx, Xxxxxxxx 00000; and (b) with respect to any Japan Local Currency
Advance, the office of the Japan Local Currency Agent set forth in the Japan
Local Currency Addendum, or in any case, such other office of the Agent or the
Japan Local Currency Agent, as applicable, as shall be from time to time
selected by it by written notice to the Borrowers and the Banks.
Β
βPBGCβ means the
Pension Benefit Guaranty Corporation, or any successor thereto.
Β
βPersonβ means an
individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
Β
βPlanβ means any
multiemployer plan or single employer plan, as defined in Section 4001 and
subject to Title IV of ERISA, which is maintained, or at any time during the
five calendar years preceding the date of this Agreement was maintained, for
employees of a Borrower or a Subsidiary of such Borrower or an ERISA
Affiliate.
Β
βPounds Sterlingβ
means the lawful currency of the United Kingdom.
Β
βPrior Agreementβ
means that certain Credit Agreement (364-Day Facility), dated as of September
20, 2007, among the Borrowers, the financial institutions party thereto,
Citibank, as agent for such financial institutions, and BTMU, as Japan Local
Currency Agent, as amended from time to time prior to the date
hereof.
Β
βPurchase Claimsβ
means Caterpillar Purchase Claims or CFSC Purchase Claims, or both, as
applicable.
Β
βQuotation Agencyβ
means Markit Group Limited or any successor thereto.
Β
βRedenominate,β βRedenominationβ and
βRedenominatedβ
each refer to the redenomination of Term Loan Advances comprising all or part of
the same Borrowing from an Agreed Currency to Dollars or from Dollars to another
Agreed Currency, or the continuation of such Advances in the same Agreed
Currency, in each case pursuant to Section 2.03(b),
2.10 or 2.15.
Β
βReference Banksβ
means Citibank and SociΓ©tΓ© GΓ©nΓ©rale.
Β
βRegisterβ has the
meaning specified in Section
8.07(c).
Β
βRelated Partiesβ
means, with respect to any Person, such Personβs Affiliates and such Personβs
and such Personβs Affiliatesβ respective managers, administrators,
trustees,Β Β partners, directors, officers, employees, agents, fund
managers and advisors.
Β
βRestricting
Informationβ means material non-public information with respect to any of
the Borrowers or their securities.
Β
βRevolving Credit
Advanceβ means an advance by a Bank to a Borrower as part of a Revolving
Credit Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate
Advance, each of which shall be a βTypeβ of
Advance.
Β
βRevolving Credit
Borrowingβ means a borrowing consisting of simultaneous Revolving Credit
Advances of the same Type made to a Borrower by each of the Banks pursuant to
Section
2.01.
Β
βRevolving Credit
Commitmentβ means, for each Bank, the obligation of such Bank to make
Revolving Credit Advances in an aggregate amount not to exceed the amount set
forth opposite such Bankβs name under the βRevolving Credit Commitmentβ heading
on its signature page hereto, or on the signature page of the Assignment and
Acceptance or Assumption and Acceptance by which it became a Bank hereunder, as
such amount may be increased or reduced pursuant to the terms of this Agreement;
provided, however, that if such
Bankβs Japan Local Currency Commitment is terminated in whole or in part without
a corresponding reduction or termination of the Commitments, then such Bankβs
Revolving Credit Commitment shall equal the sum of (x) the amount set forth as
such Bankβs Revolving Credit Commitment on such Bankβs signature page to this
Agreement, its Assignment and Acceptance or its Assumption and Acceptance, as
applicable, plus (y) the amount of such Bankβs terminated Japan Local Currency
Commitment.Β Β No such change shall result in a Bankβs Revolving Credit
Commitment exceeding its Commitment.Β Β For each Bank that is not a
Japan Local Currency Bank, such Bankβs Revolving Credit Commitment will be equal
to its Commitment.Β Β For each Bank that is a Japan Local Currency Bank,
such Bankβs Revolving Credit Commitment will be equal to its Commitment minus its Japan Local
Currency Commitment.
Β
βRevolving Credit
Obligationsβ means, at any time, the aggregate outstanding Revolving
Credit Advances at such time.
Β
βRevolving Credit Termination
Dateβ means the earlier to occur of (i) the Current Termination Date then
in effect and (ii) the date of termination in whole of the Commitments pursuant
to Section
2.05(a) or Β6.01.
Β
βS&Pβ means
Standard & Poorβs Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto, and if S&P ceases to issue ratings of the
type described herein with respect to Persons generally, then the Borrowers and
the Agent, with the consent of the Majority Banks, shall agree upon a mutually
acceptable replacement debt rating agency and shall further agree, upon
determination of such replacement agency, to determine appropriate equivalent
ratings levels to replace those contained herein.
Β
βSubsidiaryβ means,
with respect to any Borrower, a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by such Borrower or by
one or more other Subsidiaries, or by such Borrower and one or more other
Subsidiaries.Β Β For the purposes of this definition, βvoting stockβ
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
Β
βSupport Agreementβ
means that certain Support Agreement dated as of December 21, 1984, amended June
14, 1995, between Caterpillar and CFSC, as the same may be amended or modified
in accordance with the terms of Section 5.04(c) and
in effect from time to time.
Β
βSwiss Francsβ means
the lawful currency of Switzerland.
Β
βTerm Loan Advanceβ
has the meaning set forth in Section
2.17.
Β
βTerm Loan Effective
Dateβ has the meaning specified in Section
2.17.
Β
βTerm Loan Electionβ
has the meaning set forth in Section
2.17.
Β
βTerm Loan Repayment
Dateβ means, upon the exercise by the Borrowers of the Term Loan
Election, the date which is one year after the Current Termination Date in
effect on the date of the election of the Term Loan Election.
Β
βTIBO Rateβ means,
with respect to a TIBO Rate Advance for the relevant Interest Period, the
applicable Japanese Xxx XXXXX interest rate displayed by the Japan Bankersβ
Association on Reuters Screen 17097 as of 11:00 a.m. (Tokyo time) two (2)
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period; provided, however, that if
Reuters Screen 17097 is not available to the Japan Local Currency Agent for any
reason, the applicable TIBO Rate for the relevant Interest Period shall instead
be the rate determined by the Japan Local Currency Agent as the arithmetic
average (rounded upward, if necessary, to an integral multiple of 1/16 of 1%) of
the rates per annum (or the rate per annum, in the event there is only one Japan
Local Currency Bank) reported to the Japan Local Currency Agent by each Japan
Local Currency Bank as the rate at which such Japan Local Currency Bank offers
to place deposits in Japanese Yen with leading banks in the Tokyo interbank
market at approximately 11:00 a.m. (Tokyo time) two (2) Business Days prior to
the first day of such Interest Period, in the approximate amount of such Japan
Local Currency Bankβs relevant TIBO Rate Advance and having a maturity equal to
such Interest Period.
Β
βTIBO Rate Advanceβ
means a Japan Local Currency Advance which bears interest at a rate based on the
TIBO Rate as provided in Section
2.07(c).
Β
βTotal Commitmentβ
means, at any time, the sum of all of the Banksβ Commitments at such
time.
Β
βTotal Japan Local Currency
Commitmentβ has the meaning specified in Section
2.03A(a).
Β
βTotal Revolving Credit
Commitmentβ means, at any time, the sum of all of the Banksβ Revolving
Credit Commitments at such time (which shall be an amount equal to the Total
Commitment at such time minus the aggregate
Dollar Amount of the Total Japan Local Currency Commitment at such
time).
Β
βTypeβ, when used in
reference to any Revolving Credit Advance, has the meaning specified in the
definition of βRevolving Credit Advanceβ, and when used in reference to a Japan
Local Currency Advance, refers to a Japan Base Rate Advance or a TIBO Rate
Advance, each of which shall be a βTypeβ of Advance.
Β
βUSA Patriot Actβ
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56,115
Stat. 272 (2001), as amended.
Β
SECTION
1.02.Β Computation
of Time Periods.Β Β In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
βfromβ means βfrom and includingβ and the words βtoβ and βuntilβ each means βto
but excludingβ.
Β
SECTION
1.03.Β Accounting
Terms.Β Β All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles in the United States consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) and
all references contained herein to generally accepted accounting principles
shall mean United States generally accepted accounting principles.
Β
Β
AMOUNTS
AND TERMS OF THE ADVANCES
Β
SECTION
2.01.Β The
Revolving Credit Advances; Allocation of Commitments.
Β
(a)Β Each Bank severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances in any Agreed Currency to Caterpillar and CFSC from time to time
on any Business Day during the period from the Closing Date until the Revolving
Credit Termination Date in a Dollar Amount not to exceed such Bankβs Available
Revolving Credit Commitment at such time; provided, however, that at no
time shall the Dollar Amount of (i) the outstanding Advances exceed the Total
Commitment, (ii) the Revolving Credit Obligations exceed the Total Revolving
Credit Commitment, (iii) any Bankβs Revolving Credit Advances and Japan Local
Currency Advances exceed such Bankβs Commitment, (iv) all Revolving Credit
Advances to Caterpillar exceed Caterpillarβs Allocation at such time, (v) all
Revolving Credit Advances to CFSC plus the Dollar
Amount of all Japan Local Currency Advances exceed CFSCβs Allocation at such
time, (vi) any Bankβs Revolving Credit Advances to Caterpillar exceed such
Bankβs Allocated Commitment for Caterpillar at such time, or (vii) any Bankβs
Revolving Credit Advances to CFSC plus such Bankβs
Japan Local Currency Advances at such time exceed such Bankβs Allocated
Commitment for CFSC at such time.Β Β Each Revolving Credit Borrowing
shall be in an aggregate Dollar Amount not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of Revolving Credit
Advances of the same Type and the same Agreed Currency made on the same day to
the same Borrower by the Banks ratably according to their respective Available
Revolving Credit Commitments.Β Β Within the limits of each Bankβs
Allocated Commitment to a Borrower, such Borrower may from time to time borrow,
repay pursuant to Section 2.06 or
prepay pursuant to Section 2.09, and
reborrow under this Section
2.01.
Β
(b)Β The Borrowers will
on the Closing Date and from time to time thereafter, but no more often than
weekly, and subject to the limitation set forth below, allocate or re-allocate
the Total Commitment between Caterpillar and CFSC (each such Borrowerβs
allocated portion of the Total Commitment at any time being such Borrowerβs
βAllocationβ),
in such a manner that (i) the sum of the Allocations at any time shall equal the
Total Commitment at such time, (ii) each Bankβs Commitment allocable to
Caterpillar and CFSC at any time (such Bankβs βAllocated Commitmentβ
with respect to such Borrower) shall be an amount equal to the product of such
Bankβs Commitment at such time multiplied by the
Allocation Percentage for such Borrower at such time, and (iii) CFSCβs
Allocation at any time shall be in an amount equal to or greater than the Total
Japan Local Currency Commitment at such time.Β Β Each such allocation or
re-allocation shall be made on notice, given not later than 10:00Β A.M. (New
York City time) on the date of the proposed allocation or re-allocation, by the
Borrower Agent to the Agent, which shall give to each Bank prompt notice thereof
by telex or telecopy.Β Β Each such notice of an allocation or
re-allocation of the Total Commitment (a βNotice of
Allocationβ) shall be by telex or telecopy, confirmed immediately in
writing, in substantially the form of ExhibitΒ B-3
hereto, specifying therein the requested (i) effective date of such allocation
or re-allocation of the Total Commitment, and (ii) Allocation for each
Borrower.Β Β Each Borrowerβs Allocation, and each Bankβs Allocated
Commitment with respect to such Borrower, shall remain in effect (i) from the
Closing Date until the first Notice of Allocation becomes effective, and (ii)
thereafter, from the date that the most recent Notice of Allocation became
effective until the next subsequent Notice of Allocation becomes
effective.Β Β Notwithstanding any of the foregoing or any Notice of
Allocation to the contrary:
Β
Β Β Β Β (1)Β Β Β Β from and
after the occurrence of a CFSC Event of Default or a CFC Event of Default,
CFSCβs Allocation shall not be increased, but may be decreased to an amount not
less than the outstanding Advances to CFSC and CFC at the time of such decrease;
and
Β
Β Β Β Β (2)Β Β Β Β from and after the
occurrence of a Caterpillar Event of Default, the Allocations shall not be
modified without the consent of the Agent and the Majority Banks.
Β
(c)Β Β Β Β The Borrowers and
the Agent shall furnish to the Japan Local Currency Agent, promptly following
the making, payment or prepayment of each Revolving Credit Advance, and at any
other time at the reasonable request of the Japan Local Currency Agent, a
statement setting forth the outstanding Revolving Credit Advances.
Β
SECTION
2.02.Β Making
the Revolving Credit Advances.
Β
(a)Β Β Β Β Each Revolving
Credit Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the date of the proposed Revolving Credit Borrowing (in the
case of a Revolving Credit Borrowing comprised of Base Rate Advances), or not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing (in the case of a Revolving
Credit Borrowing comprised of Eurocurrency Rate Advances), by a Borrower to the
Agent, which shall give to each Bank prompt notice thereof by
telecopy.Β Β Each such notice of a Revolving Credit Borrowing (a βNotice of Revolving Credit
Borrowingβ) shall be by telecopy, confirmed immediately in writing, in
substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) Borrower, (ii) date of such Revolving
Credit Borrowing, (iii) Type of Revolving Credit Advances comprising such
Revolving Credit Borrowing, (iv) in the case of a proposed Borrowing of
Eurocurrency Rate Advances, Agreed Currency of such Advances, (v) aggregate
amount of such Revolving Credit Borrowing, (vi) Interest Period for the
Revolving Credit Advances and (vii) account to which the proceeds of such
Revolving Credit Borrowing shall be made available.Β Β In the case of
each proposed Revolving Credit Borrowing, the Agent shall promptly notify each
Bank of such Bankβs ratable share of such Revolving Credit Borrowing based upon
the Available Revolving Credit Commitments of the Banks, and in the case of a
proposed Revolving Credit Borrowing comprised of Eurocurrency Rate Advances, the
Agent shall promptly notify each Bank of the applicable interest rate under
Section
2.07(b).Β Β Each Bank shall, before 1:00 p.m. (New York City
time) on the date of such Revolving Credit Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the applicable Payment
Office, in the Agreed Currency and in same day funds, such Bankβs ratable
portion of such Revolving Credit Borrowing.Β Β After the Agentβs receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Article III,
the Agent will promptly make such same day funds available to the account
specified by the applicable Borrower in the Notice of Revolving Credit
Borrowing.
Β
(b)Β Β Β Β Each Notice of a
Revolving Credit Borrowing shall be irrevocable and binding on the Borrower
submitting such Notice.Β Β In the case of any Revolving Credit Borrowing
which the related Notice of Revolving Credit Borrowing specifies is to be
comprised of Eurocurrency Rate Advances, the requesting Borrower shall indemnify
each Bank against any loss, cost or expense incurred by such Bank as a direct
result of the failure of such Borrower, for any reason other than a default by
such Bank, to borrow the requested Revolving Credit Advances on the date
specified in the Notice of Revolving Credit Borrowing.Β Β Such
indemnification shall include, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund the Advance to be made by such Bank as part of
such Borrowing; provided, however, that any
indemnification for such losses, costs and expenses shall be limited to an
amount equal to (i) the principal amount of the Advance to be made by such Bank
times (ii) the
number of days in the requested Interest Period, divided by 360 times (iii) the
interest differential between the interest rate based on the Eurocurrency Rate
which would have applied to such Advance and the rate of interest which would
apply if such Borrower had requested on the date of the requested Revolving
Credit Borrowing a Revolving Credit Borrowing comprised of Advances of the same
Type and Agreed Currency for a period equal to the requested Interest
Period.Β Β A certificate describing in reasonable detail the amount of
such losses, costs and expenses, submitted to such Borrower and the Agent by
such Bank, shall create a rebuttable presumption of such losses, costs or
expenses.
Β
(c)Β Β Β Β Unless the Agent
shall have received notice from a Bank prior to the time of any Revolving Credit
Borrowing that such Bank will not make available to the Agent such Bankβs
ratable portion of such Revolving Credit Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on the date of such
Revolving Credit Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount.Β Β If and to the extent
that such Bank shall not have so made such ratable portion available to the
Agent, such Bank (the βDefaulting Bankβ) and
such Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of such Borrower, the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (ii) in the case of such Defaulting Bank, the Federal Funds
Rate.Β Β If such Defaulting Bank shall repay to the Agent such
corresponding amount, together with interest thereon as required in the
immediately preceding sentence, such amount so repaid shall constitute such
Bankβs Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement and such Bank shall be entitled to all rights in
respect of such Revolving Credit Advance, including the right to receive
interest from the date funds in connection therewith shall have been made
available to such Borrower.Β Β If such Borrower shall repay to the Agent
such corresponding amount, such repayment shall not relieve the Defaulting Bank
from its obligation to make its ratable portion of such Revolving Credit
Borrowing available to such Borrower. Nothing contained herein shall impair the
right of such Borrower to the performance by any Bank of such Bankβs obligations
hereunder.Β Β In the event that any Bank shall at any time fail to make
its ratable portion of any Revolving Credit Borrowing available to the Agent for
disbursement to such Borrower, the Agent shall make inquiry of such Defaulting
Bank as to the circumstances giving rise to such failure and shall promptly
advise such Borrower of the response, if any, the Agent shall have received in
connection with such inquiry; provided that no
failure or delay on the part of the Agent to make such inquiry shall relieve
such Borrower or the Defaulting Bank of its obligation to repay any amount made
available by the Agent to such Borrower in anticipation of receiving such
Defaulting Bankβs portion of such Revolving Credit Borrowing.
Β
(d)Β Β Β Β The failure of any
Bank to make the Revolving Credit Advance to be made by it as part of any
Revolving Credit Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its Revolving Credit Advance on the date of such
Revolving Credit Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Revolving Credit Advance to be made by such other
Bank on the date of any Revolving Credit Borrowing.Β Β Nothing contained
herein shall impair the rights and remedies of the Borrower requesting any
Revolving Credit Borrowing against any Bank under applicable law as a result of
such Bankβs failure to make the Revolving Credit Advance to be made by it as
part of such Revolving Credit Borrowing.
Β
(e)Β Β Β Β Any Bank may make,
carry or transfer Advances at, to or for the account of, any of its branch
offices or the office of an Affiliate at the Bank; provided, however, no Affiliate
of any Bank shall be deemed a party to this Agreement or shall have any rights,
liability or obligation under this Agreement unless such Bank and such Affiliate
shall have executed and delivered, and the Agent shall have accepted, an
Assignment and Acceptance in accordance with Section 8.07, and
then such Affiliate shall have rights and obligations hereunder only to the
extent contemplated therein.
Β
(f)Β Β Β Β Each Bank shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrowers to such Bank resulting from each Advance made
by such Bank from time to time, including the amounts of principal and interest
payable and paid to such Bank from time to time hereunder. The Agent shall also
maintain accounts in which it will record (a) the amount of each Advance made
hereunder, the Type thereof and the Interest Period with respect thereto, (b)
the amount of any principal or interest due and payable or to become due and
payable from the applicable Borrower to each Bank hereunder and (c) the amount
of any sum received by the Agent or the Japan Local Currency Agent, as
applicable, hereunder from the applicable Borrower and each Bankβs share
thereof. Entries recorded pursuant to the foregoing shall be prima facie evidence of the
existence and amounts of the Borrowersβ obligations; provided, however, that the failure of
the Agent or any Bank to maintain such accounts or any error therein shall not
in any manner affect the obligation of the applicable Borrower to repay its
obligations hereunder in accordance with their terms.Β Β Any Bank may
request that its Revolving Credit Advances (or Term Loan Advances, if
applicable) be evidenced by a promissory note in substantially the form of
Exhibit A (a βNoteβ).Β Β In
such event, the applicable Borrower shall prepare, execute and deliver to such
Bank such Note payable to the order of such Bank.Β Β Thereafter, the
Advances evidenced by such Note and interest thereon shall at all times (prior
to any assignment pursuant to Section 8.07) be represented by one or more Notes
payable to the order of the payee named therein, except to the extent that any
such Bank subsequently returns any such Note for cancellation and requests that
such Advances once again be evidenced as described above.
Β
SECTION
2.03.Β Voluntary
Conversion or Continuation of Term Loan Advances.
Β
(a)Β Β Β Β Each Borrower may
on any Business Day, upon notice given to the Agent not later than 11:00 A.M.
(New York City time) on the second Business Day prior to the date of the
proposed Conversion or continuation, and subject to the provisions of Section 2.10 and the
provisos in this Section 2.03(a),
Convert all or any part of the Term Loan Advances of one Type comprising the
same Borrowing into Term Loan Advances of another Type or continue all or any
part of the Term Loan Advances of one Type comprising the same Borrowing as
Advances of the same Type; provided, however, that any
such Conversion or continuation of any Eurocurrency Rate Advances or TIBO Rate
Advances shall be made on, and only on, the last day of an Interest Period for
such Eurocurrency Rate Advances or TIBO Rate Advances; and provided further,
that no Advance may be Converted into or continued as, a Eurocurrency Rate
Advance or TIBO Rate Advance, at any time that an Event of Default or unmatured
Event of Default has occurred and is continuing.Β Β Any such Conversion
or continuation of any Advances shall be in the minimum amounts and increments
specified in Section
2.01(a) or Section 2.03B, as
applicable.Β Β Each such notice of a Conversion or continuation shall,
within the restrictions specified above, specify (i) the date of such Conversion
or continuation, (ii) the Advances to be Converted or continued, (iii) in the
case of a Conversion into Eurocurrency Rate Advances, the Agreed Currency of
such Advances, and (iv) the Interest Period for the Advances.
Β
(b)Β Β Β Β Each Borrower may,
upon notice given to the Agent not later than 11:00Β a.m. (New York City
time) on a Business Day at least three (3) Business Days prior to the date of
the proposed Redenomination, and subject to the provisions of Section 2.10 and the
provisos in this Section 2.03(b),
request that at any time all or any part of the Term Loan Advances comprising
the same Borrowing be Redenominated from an Agreed Currency to Dollars or from
Dollars to another Agreed Currency; provided, however, that any
Redenomination shall be made on, and only on, the last day of an Interest Period
for such Advances; provided further, that any
such Redenomination of Advances shall be in the minimum amounts and increments
specified in Section
2.01(a) or Section 2.03B, as
applicable; and provided further, that no
Advance may be Redenominated at any time that an Event of Default or unmatured
Event of Default has occurred and is continuing.Β Β Each such notice of
request of a Redenomination (a βNotice of
Redenominationβ) shall be by telecopier, telex or cable, confirmed
immediately in writing, specifying (i) the Advances comprising the Borrowing to
be Redenominated, (ii) the date of the proposed Redenomination, (iii) the
currency into which such Advances are to be Redenominated, and (iv) the Interest
Period for such Advances upon being so Redenominated.Β Β Subject to the
provisions of Section
2.10 and of the second proviso in this Section 2.03(b), each
Advance so requested to be Redenominated will be Redenominated, on the date
specified therefor in such Notice of Redenomination, into an equivalent amount
thereof in the Agreed Currency requested in such Notice of Redenomination, such
equivalent amount to be determined on such date in accordance with Section 2.15(b), and,
upon being so Redenominated, will have an initial Interest Period as requested
in such notice of Redenomination.Β Β No Revolving Credit Advance or Term
Loan Advance that is not a Japan Local Currency Advance may be Converted at any
time into a Japan Local Currency Advance, and no Japan Local Currency Advance
may be Converted at any time into a Revolving Credit Advance or a Term Loan
Advance that is not a Japan Local Currency Advance.
Β
(c)Β Β Β Β If a Borrower shall
fail to select the duration of any Interest Period for any Eurocurrency Rate
Advances or TIBO Rate Advances in accordance with the provisions contained in
the definition of βInterest Periodβ in Section 1.01 and the
provisions of this Section 2.05, or is
not entitled to Convert, Redenominate or continue such Advances into or as
Eurocurrency Rate Advances or TIBO Rate Advances pursuant to Section 2.03 or Section 2.10, the
Agent will forthwith so notify the Borrower and the Banks and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances or Japan Base Rate Advances, as
applicable.
Β
SECTION
2.03A.Β Terms of
Japan Local Currency Facility.
Β
(a)Β Β Β Β The Japan Local
Currency Addendum sets forth (i) the maximum amount (expressed in Dollar Amount)
available to be borrowed from all Japan Local Currency Banks under the Japan
Local Currency Addendum (the βTotal Japan Local Currency
Commitmentβ), which shall not exceed $75,000,000 and (ii) with respect to
each Japan Local Currency Bank, the maximum amount (expressed in Dollar Amount)
available to be borrowed from such Japan Local Currency Bank thereunder (such
Bankβs βJapan Local
Currency Commitmentβ).Β Β In no event shall a Japan Local
Currency Bankβs Japan Local Currency CommitmentΒ Β at any time exceed
such Bankβs Commitment.
Β
(b)Β Β Β Β No Japan Local
Currency Advance may be made if the Dollar Amount of (i) outstanding Japan Local
Currency Advances would exceed the Total Japan Local Currency Commitment, (ii)
any Japan Local Currency Bankβs Japan Local Currency Advances would exceed its
Japan Local Currency Commitment, (iii) the outstanding Advances would exceed the
Total Commitment, (iv) the Revolving Credit Obligations would exceed the Total
Revolving Credit Commitment, (v) any Bankβs Revolving Credit Advances and Japan
Local Currency Advances would exceed such Bankβs Commitment, (vi) all Revolving
Credit Advances to CFSC plus the Dollar
Amount of all Japan Local Currency Advances would exceed CFSCβs Allocation at
such time, or (vii) any Bankβs Revolving Credit Advances to CFSC plus such Bankβs
Japan Local Currency Advances at such time would exceed such Bankβs Allocated
Commitment for CFSC at such time.
Β
(c)Β Β Β Β CFC and the Japan
Local Currency Agent shall furnish to the Agent, promptly following the making,
payment or prepayment of each Japan Local Currency Advance, and at any other
time at the reasonable request of the Agent, a statement setting forth the
outstanding Japan Local Currency Advances made under the Japan Local Currency
Addendum.
Β
(d)Β Β Β Β CFC and the Japan
Local Currency Agent shall furnish to the Agent copies of any amendment,
supplement or other modification to the terms of the Japan Local Currency
Addendum promptly after the effectiveness thereof.
Β
(e)Β Β Β Β CFSC and CFC may
terminate the Japan Local Currency Addendum in their sole discretion if there
are not any Advances outstanding thereunder, by written notice to the Agent, the
Japan Local Currency Agent and the Japan Local Currency Banks, which notice
shall be executed by CFSC, CFC and, if such consent is required, each Japan
Local Currency Bank.
Β
SECTION
2.03B.Β Β Making
the Japan Local Currency Advances.Β Β
Β
(a)Β Β Β Β Each Japan Local
Currency Borrowing shall be made on a Business Day upon notice given by CFC to
the Japan Local Currency Agent, with a copy to the Agent, such notice to be
given at the time specified in the Japan Local Currency
Addendum.Β Β Each Japan Local Currency Borrowing shall consist of Japan
Local Currency Advances of the same Type made on the same day to CFC by the
Japan Local Currency Banks ratably according to their respective Japan Local
Currency Commitments.Β Β The Japan Local Currency Agent shall give each
Japan Local Currency Bank prompt notice thereof by telecopy.Β Β Each
such notice of a Japan Local Currency Borrowing (a βNotice of Japan Local
Currency Borrowingβ) shall be by telecopy, confirmed immediately in
writing, in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of Japan
Local Currency Advances comprising such Japan Local Currency Borrowing, (iii)
Interest Period for such Borrowing and (iv) aggregate amount of such
Borrowing.
Β
(b)Β Β Β Β Subject to any
alternative procedures set forth in the Japan Local Currency Addendum, each
Japan Local Currency Bank, for the account of its Applicable Lending Office,
shall make such Japan Local Currency Bankβs ratable portion of such Japan Local
Currency Borrowing on the proposed date thereof by wire transfer of immediately
available funds to the Japan Local Currency Agent by the time specified in the
Japan Local Currency Addendum or Notice of Japan Local Currency Borrowing, and
the Japan Local Currency Agent shall make such funds available to CFC at the
applicable Payment Office.
Β
(c)Β Β Β Β Each Notice of Japan
Local Currency Borrowing shall be irrevocable and binding on CFSC and
CFC.Β Β CFSC and CFC, jointly and severally, shall indemnify each Japan
Local Currency Bank against any loss, cost or expense reasonably incurred by
such Japan Local Currency Bank as a result of any failure to fulfill on or
before the date specified in such Notice of Japan Local Currency Borrowing for
such Japan Local Currency Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Japan Local Currency Bank to fund the Japan Local Currency Advance to be made by
such Japan Local Currency Bank as part of such Japan Local Currency Borrowing
when such Japan Local Currency Advance, as a result of such failure, is not made
on such date.
Β
(d)Β Β Β Β Unless the Japan
Local Currency Agent shall have received notice from a Japan Local Currency Bank
prior to the date of any Japan Local Currency Borrowing that such Japan Local
Currency Bank will not make available to the Japan Local Currency Agent such
Japan Local Currency Bankβs ratable portion of such Japan Local Currency
Borrowing, the Japan Local Currency Agent may assume that such Japan Local
Currency Bank has made such portion available to it on the date of such Japan
Local Currency Borrowing in accordance with subsection (b) of
this Section
2.03B and it may, in reliance upon such assumption, make (but shall not
be required to make) available to CFC on such date a corresponding
amount.Β Β If and to the extent that such Japan Local Currency Bank
shall not have so made such ratable portion available to the Japan Local
Currency Agent, such Japan Local Currency Bank and CFC severally agree to repay
to the Japan Local Currency Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to CFC until the date such amount is repaid to the Japan Local
Currency Agent at (i) in the case of CFC, the interest rate applicable at the
time to Japan Local Currency Advances comprising such Japan Local Currency
Borrowing and (ii) in the case of such Japan Local Currency Bank, the Federal
Funds Rate or the Japan Local Currency Agentβs overdraft cost, if
higher.Β Β If such Japan Local Currency Bank shall repay to the Japan
Local Currency Agent such corresponding amount, such amount so repaid shall
constitute such Japan Local Currency Bankβs Japan Local Currency Advance as part
of such Japan Local Currency Borrowing for purposes of this
Agreement.
Β
(e)Β Β Β Β The failure of any
Japan Local Currency Bank to make the Japan Local Currency Advance to be made by
it as part of any Japan Local Currency Borrowing shall not relieve any other
Japan Local Currency Bank of its obligation hereunder to make its Japan Local
Currency Advance on the date of such Japan Local Currency Borrowing, but no
Japan Local Currency Bank shall be responsible for the failure of any other
Japan Local Currency Bank to make the Japan Local Currency Advance to be made by
such other Japan Local Currency Bank on the date of any Japan Local Currency
Borrowing.
Β
SECTION
2.04.Β Fees.Β Β
Β
(a)Β Β Β Β Each of Caterpillar
and CFSC shall pay to the Agent, for the account of each Bank, a fee (each a
βFacility Feeβ
and collectively, the βFacility Feesβ)
calculated on a daily basis by multiplying the Facility Fee Rate in effect on
each day by (i) for any period prior to the Term Loan Effective Date, the amount
of such Bankβs Allocated Commitment for such Borrower as in effect on such day
(without regard to the actual or deemed usage of such Allocated Commitment) or
(ii) for any period from and including the Term Loan Effective Date, the amount
of such Bankβs Term Loan Advances to such Borrower.Β Β The Facility Fee
shall be payable quarterly in arrears, commencing on January 2, 2009, for the
period commencing on the Closing Date and ending on December 31, 2008,
inclusive, on the first Business Day of each calendar quarter thereafter for the
period of the immediately preceding calendar quarter, and on the Facility
Termination Date for the period since the last payment of Facility
Fees.Β Β The βFacility Fee Rateβ
shall at all times be determined in accordance with the table set forth below,
such rate to change for any Borrower when and as any Credit Rating of such
Borrower changes:
Β
|
Credit Rating
Β
|
Facility Fee Rate
(rate per
annum)
Β
|
|
AA- or better
(S&P) or Aa3 or better
(Xxxxxβx)
|
0.04%
Β
|
|
Below AA-
(S&P) and Aa3 (Xxxxxβx) but
A- or better
(S&P) or A3 or better
(Xxxxxβx)
Β
|
0.06%
|
|
Below A-
(S&P) and A3 (Xxxxxβx) but
BBB+ or
better (S&P) or Baa1 or
better Xxxxxβx)
Β
|
0.10%
|
|
Below BBB+
(S&P) and Baa1 (Xxxxxβx) but
BBB or better
(S&P) or Baa2 or
better (Xxxxxβx)
Β
|
0.125%
|
|
Below BBB
(S&P) and Baa2 (Xxxxxβx) or
unrated
Β
|
0.175%
|
Β
The Facility Fees
allocable to each of Caterpillar and CFSC shall be the several obligation of
each.
Β
(b)Β Β Β Β The Borrowers shall
pay to the Agent, solely for its own account, and to Citigroup Global Markets
Inc., solely for its own account, the fees specified in the letter agreement
dated as of August 12, 2008, among the Borrowers, the Agent and Citigroup Global
Markets Inc., on the dates specified therein.Β Β No Person other than
the Agent and Citigroup Global Markets Inc. shall have any interest in such
fees.
Β
SECTION
2.05.Β Reduction
of the Commitments; Bank Additions.Β Β
Β
(a)Β Β Β Β The Borrowers shall
have the right, upon at least three (3) Business Daysβ notice to the Agent, to
terminate in whole or reduce ratably in part the unused portions of the
respective Commitments and Allocated Commitments of the Banks; provided that the
aggregate amount of the Allocated Commitments of the Banks to (i) Caterpillar
shall not be reduced to an amount which is less than the aggregate principal
Dollar Amount of the Advances to Caterpillar then outstanding and (ii) CFSC
shall not be reduced to an amount which is less than the sum of the aggregate
principal Dollar Amount of the Advances to CFSC and the Japan Local Currency
Advances then outstanding, and provided, further, that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple thereof.Β Β Any such reduction of each Bankβs Commitment will
be an automatic reduction of such Bankβs Revolving Credit Commitment in an
identical amount.
Β
(b)Β Β Β Β Notwithstanding the
foregoing, upon the acquisition of one Bank by another Bank, or the merger,
consolidation or other combination of any two or more Banks (any such
acquisition, merger, consolidation or other combination being referred to
hereinafter as a βCombinationβ and each
Bank which is a party to such Combination being hereinafter referred to as a
βCombined
Bankβ), the Borrowers may notify the Agent that they desire to reduce the
Commitment of the Bank surviving such Combination (the βSurviving Bankβ) to
an amount equal to the Commitment of that Combined Bank which had the largest
Commitment of each of the Combined Banks party to such Combination (such largest
Commitment being the βSurviving Commitmentβ
and the Commitments of the other Combined Banks being hereinafter referred to,
collectively, as the βRetired
Commitmentsβ).Β Β If the Majority Banks (determined as set forth
below) and the Agent agree to such reduction in the Surviving Bankβs Commitment,
then (i) the aggregate amount of the Commitments shall be reduced by the Retired
Commitments effective upon the effective date of the Combination, provided, that, on or before
such date the Borrowers have paid in full the outstanding principal amount of
the Advances of each of the Combined Banks other than the Combined Bank whose
Commitment is the Surviving Commitment, (ii) from and after the effective date
of such reduction, the Surviving Bank shall have no obligation with respect to
the Retired Commitments, and (iii) the Borrowers shall notify the Agent whether
they wish such reduction to be a permanent reduction or a temporary
reduction.Β Β If such reduction is to be a temporary reduction, then the
Borrowers shall be responsible for finding one or more financial institutions
(each, a βReplacement
Bankβ), acceptable to the Agent (such acceptance not to be unreasonably
withheld), willing to assume the obligations of a Bank hereunder with aggregate
Commitments up to the amount of the Retired Commitments.Β Β The Agent
may require the Replacement Banks to execute such documents, instruments or
agreements as the Agent deems necessary or desirable to evidence such
Replacement Banksβ agreement to become parties hereunder.Β Β For
purposes of this Section 2.05(b),
Majority Banks shall be determined as if the reduction in the aggregate amount
of the Commitments requested by the Borrowers had occurred (i.e., the Combined
Banks shall be deemed to have a single Commitment equal to the Surviving
Commitment and the aggregate amount of the Commitments shall be deemed to have
been reduced by the Retired Commitments).
Β
(c)Β Β Β Β The Borrowers shall
have the right, upon at least five (5) Business Daysβ notice to the Agent, to
add one or more bank or banks as new Banks hereunder, or to increase the
Commitment of any existing Bank with such existing Bankβs consent, pursuant to
the terms hereof (any such addition of a new Bank or increase in the Commitment
of an existing Bank upon the request of the Borrowers pursuant to this Section 2.05(c) being
referred to as a βBank
Additionβ); provided that (i)
such proposed Bank, in the case of a bank not already a Bank hereunder, is
acceptable to the Agent (the acceptance of the Agent not to be unreasonably
withheld); (ii) after giving effect to the proposed Bank Addition, no Bankβs
Commitment would exceed 20% of the Total Commitment; and (iii) after giving
effect to the proposed Bank Addition, the Total Commitment would not exceed 120%
of the Total Commitment on (A) the Closing Date, if such Bank Addition is to
occur prior to any Extension Request having been made pursuant to Section 2.16(a) and
(B) the date of the most recent Extension Request, if such Bank Addition is to
occur after any Extension Request has been made.Β Β Each notice of a
proposed Bank Addition (a βNotice of Bank
Additionβ) shall be by telecopy, confirmed immediately in writing, in
substantially the form of Exhibit B-4 hereto,
specifying therein (i) the name and address of the proposed Added Bank, (ii) the
date on which the Borrowers wish such Bank Addition to become effective, and
(iii) the amount of the Commitment such Added Bank would have hereunder after
giving effect to such Bank Addition.Β Β If the conditions set forth in
the proviso contained in the first sentence of this Section 2.05(c) have
been satisfied, the Agent shall forward to such Added Bank and the Borrowers for
execution by such Added Bank and the Borrowers an Assumption and
Acceptance.Β Β The Added Bank shall, upon such execution, return the
executed Assumption and Acceptance to the Agent, for the Agentβs acceptance
thereof, together with a processing and recordation fee of $3,500.
Β
Upon such
execution, delivery and acceptance, from and after the effective date specified
in each Assumption and Acceptance, the Added Bank shall, in addition to the
rights and obligations hereunder held by it immediately prior to such effective
date (if any), have the rights and obligations hereunder that have been assumed
by it pursuant to such Assumption and Acceptance and, in the case of a bank not
previously a Bank hereunder, shall become a Bank hereunder.
Β
By executing and
delivering an Assumption and Acceptance, each Added Bank confirms to and agrees
with each party hereto as follows:Β Β (i) neither the Agent nor any Bank
makes any representation or warranty, nor assumes any responsibility with
respect to, any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (ii) neither the Agent nor
any Bank makes any representation or warranty, nor assumes any responsibility
with respect to, the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto.
Β
The Agent shall
maintain at its address referred to in Section 8.02 a copy
of each Assumption and Acceptance delivered to and accepted by
it.Β Β Such copies shall be available for inspection by the Borrowers or
any Bank at any reasonable time and from time to time upon reasonable prior
notice.
Β
Upon its receipt of
an Assumption and Acceptance executed by an Added Bank and the Borrowers, the
Agent shall, if such Assumption and Acceptance has been completed and is in
substantially the form of Exhibit C-2 hereto,
(i) accept such Assumption and Acceptance, and (ii) give prompt notice thereof
to the Borrowers.Β Β Within five (5) Business Days after receipt of such
notice, if requested by an Added Bank, each Borrower, at its own expense, shall
execute and deliver to the Agent a new Note or Notes to the order of such Added
Bank.Β Β Such new Note or Notes shall be dated the effective date of
such Assumption and Acceptance and shall otherwise be in substantially the form
of Exhibit A
hereto.
Β
(d)Β Β Β Β If there are any
Revolving Credit Advances outstanding on the effective date of any Assumption
and Acceptance, the Added Bank shall purchase from the other Banks such
participations in such Revolving Credit Advances as shall be necessary to cause
such Added Bank to share ratably (based on the proportion that such Added Bankβs
Revolving Credit Commitment bears to the Total Revolving Credit Commitment after
giving effect to the Bank Addition) in each such Revolving Credit
Advance.Β Β To purchase such participations, the Added Bank shall before
12:00 noon (New York City time) on the effective date of its Assumption and
Acceptance, make available for the account of its Applicable Lending Office to
the Agent at its address referred to in Section 8.02, in the
applicable Agreed Currency and in same day funds, such Added Bankβs ratable
portion (based on the proportion that such Added Bankβs Revolving Credit
Commitment (or the increase in such Added Bankβs Revolving Credit Commitment, in
the case of an Added Bank which is an existing Bank hereunder) bears to the
Total Revolving Credit Commitment after giving effect to the Bank Addition) of
each Revolving Credit Borrowing then outstanding, together with an amount equal
to such ratable portion of the interest which has accrued to such date and
remains unpaid on such Revolving Credit Borrowing. After the Agentβs receipt of
such funds, the Agent will promptly make such same day funds available to the
account of each Bank in an amount to such Bankβs ratable portion of such payment
by the Added Bank.Β Β In addition, if such Added Bank acquires a Japan
Local Currency Commitment, automatically upon and simultaneously with becoming
an Added Bank, such Added Bank shall have acquired a ratable risk participation
in all then outstanding Japan Local Currency Advances, with such ratable risk
participation based on such Added Bankβs Japan Local Currency Commitment as a
fraction of the aggregate of all Japan Local Currency Commitments.
Β
SECTION
2.06.Β Repayment
of Advances.Β Β Each Borrower shall repay the principal
amount (or the portion thereof remaining after giving effect to any earlier
partial prepayments thereof) of each Advance made to such Borrower by each Bank
(other than a Term Loan Advance) on the last day of the Interest Period for such
Advance.Β Β Each Borrower shall repay the principal amount (or the
portion thereof remaining after giving effect to any earlier partial repayment
thereof) of each Term Loan Advance outstanding to such Borrower from each Bank
on the Term Loan Repayment Date.
Β
SECTION
2.07.Β Interest
on Advances.Β Β Each Borrower shall pay interest on the
unpaid principal amount of each Advance made to such Borrower by each Bank from
the date of such Advance until such principal amount shall be paid in full, at
the following rates per annum:
Β
(a)Β Β Β Β Base Rate
Advances.Β Β If such Advance is a Base Rate Advance, a rate per
annum equal at all times during the Interest Period for such Advance to the sum
of the Base Rate in effect from time to time plus the Applicable
Margin, payable on the last day of such Interest Period (or, with respect to any
portion thereof that shall be prepaid pursuant to Section 2.09 or
otherwise in accordance with the terms of this Agreement, on the date of such
prepayment); or if such Advance is a Japan Base Rate Advance, a rate per annum
equal at all times during the Interest Period for such Advance to the sum of the
Japan Base Rate in effect from time to time plus the Applicable
Margin, payable on the last day of such Interest Period (or with respect to any
portion thereof that shall be prepaid pursuant to Section 2.09 or
otherwise in accordance with the terms of this Agreement or the Japan Local
Currency Addendum, on the date of such prepayment).
Β
(b)Β Β Β Β Eurocurrency Rate
Advances.Β Β If such Advance is a Eurocurrency Rate Advance, a
rate per annum equal at all times during the Interest Period for such Advance to
the sum of the Eurocurrency Rate for such Interest Period plus the Applicable
Margin, payable on the last day of such Interest Period (or, with respect to any
portion thereof that shall be prepaid pursuant to Section 2.09 or
otherwise in accordance with the terms of this Agreement, on the date of such
prepayment) and, if such Interest Period has a duration of more than three
months, on the day which occurs during such Interest Period three months from
the first day of such Interest Period.
Β
(c)Β Β Β Β TIBO Rate
Advances.Β Β If such Advance is a TIBO Rate Advance, a rate per
annum equal at all times during the Interest Period for such Advance to the sum
of the TIBO Rate for such Interest Period plus the Applicable
Margin, payable on the last day of such Interest Period (or, with respect to any
portion thereof that shall be prepaid pursuant to Section 2.09 or
otherwise in accordance with the terms of this Agreement, on the date of such
prepayment) and, if such Interest Period has a duration of more than three
months, on the day which occurs during such Interest Period three months from
the first day of such Interest Period.
Β
(d)Β Β Β Β Post-Default
Interest.Β Β Upon the occurrence, and during the continuance, of
any Event of Default, the unpaid principal amount of each Advance shall bear
interest at a rate per annum equal at all times to 2% per annum above the rate
per annum otherwise required to be paid on such Advance in accordance with
subsection (a) or (b) above; provided that any
amount of principal which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to the greater of (x) 2% per annum above the Base
Rate in effect from time to time and (y) 2% per annum above the rate per annum
required to be paid on such Advance immediately prior to the date on which such
amount became due.
Β
SECTION
2.08.Β Interest
Rate Determination.Β Β
Β
(a)Β Β Β Β If, pursuant to the
definition of βEurocurrency Base Rateβ, quotes from the Reference Banks are
required, each Reference Bank shall furnish to the Agent timely information for
the purpose of determining the Eurocurrency Rate.Β Β If either one of
the Reference Banks shall not furnish such timely information to the Agent for
the purpose of determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Bank.
Β
(b)Β Β Β Β The Agent shall give
prompt notice to the Borrowers and the Banks (or the Japan Local Currency Banks,
as applicable) of the applicable interest rate determined by the Agent for
purposes of Section
2.07(a) or (b), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate(s) under Section 2.07(b) (or
by each Japan Local Currency Bank for the purpose of determining the applicable
interest rate under Section 2.07(c), if
applicable).
Β
SECTION
2.09.Β Prepayments
of Advances.Β Β
Β
(a)Β Β Β Β Any Borrower may,
upon at least two (2) Business Daysβ notice to the Agent stating (i) the
proposed date and aggregate principal amount of the prepayment and (ii) the
Advances (which shall be part of the same Borrowing) to which such prepayment is
to be applied, and if such notice is given such Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that (x)
each partial prepayment shall be in an aggregate principal Dollar Amount of not
less than $10,000,000 and in an integral Dollar Amount multiple of $1,000,000 in
excess thereof and (y) in the case of any such prepayment of a Eurocurrency Rate
Advance or a TIBO Rate Advance, such Borrower shall be obligated to reimburse
the applicable Banks in respect thereof pursuant to Section
8.04(b).
Β
(b)Β Β Β Β If on any date that
the Dollar Amount of (i) Eurocurrency Rate Advances outstanding in an Agreed
Currency or (ii) Japan Local Currency Advances is determined pursuant to Section 2.15 (each
such date, a βComputation Dateβ),
it is determined that as a result of currency fluctuations with respect to the
Advances to which such Computation Date applies, the aggregate Dollar Amount of
(x) all outstanding Advances exceeds the Total Commitment, or (y) all
outstanding Revolving Credit Obligations exceeds the Total Revolving Credit
Commitment, the Borrowers shall on such date prepay (without premium or penalty
other than any payment required pursuant to Section 8.04(b)) an
aggregate principal amount of Revolving Credit Advances (or Term Loan Advances,
if applicable) ratably to the Banks in an amount equal to or, at the option of
the Borrowers, greater than such excess, with accrued interest to the date of
such prepayment on the principal amount prepaid.Β Β The Borrowers may
determine which Borrowing such prepayment shall be allocated to, and any such
prepayment of Eurocurrency Rate Advances shall be subject to the provisions of
Section
8.04(b).
Β
SECTION
2.10.Β Increased
Costs; Capital Adequacy; Illegality.Β Β
Β
(a)Β Β Β Β If, due to either (i)
the introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Eurocurrency Rate Advances, to
the extent already included in the Eurocurrency Rate Reserve Percentage) in or
in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances or TIBO Rate Advances, then the applicable Borrower
shall from time to time, upon written demand by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank additional
amounts sufficient to compensate such Bank for such increased cost.Β Β A
certificate describing in reasonable detail the amount of such increased cost,
submitted to the Borrowers and the Agent by such Bank, shall create a rebuttable
presumption of such increased cost.Β Β If any such increase in cost is
attributable to specific Advances made to a particular Borrower, compensation
for such increased cost shall be paid by such Borrower (or if such Borrower is
CFC, by CFSC).Β Β In all other cases, compensation for such increased
cost shall be paid by Caterpillar.
Β
(b)Β Β Β Β If any Bank
determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by such Bank or by any Person controlling such Bank
and that the amount of such capital is increased by or based upon the existence
of such Bankβs Advances or commitment to lend hereunder, then, upon written
demand by such Bank (with a copy of such demand to the Agent), the applicable
Borrower shall immediately pay to the Agent for the account of such Bank, from
time to time as specified by such Bank, additional amounts sufficient to
compensate such Bank (or, if applicable, such Person controlling such Bank) in
the light of such circumstances, to the extent that such Bank reasonably
determines such increase in capital to be allocable to the existence of such
Bankβs commitment to lend hereunder.Β Β A certificate describing in
reasonable detail such amounts submitted to the applicable Borrower by such Bank
shall create a rebuttable presumption of such amounts.Β Β If any such
increase in capital is attributable to specific Advances made to a particular
Borrower or to the Allocated Commitments to a particular Borrower or Borrowers,
compensation for such increase in capital shall be paid by such Borrower (or if
such Borrower is CFC, by CFSC).Β Β In all other cases, compensation for
such increased capital shall be paid by Caterpillar.
Β
(c)Β Β Β Β If any Bank shall
notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any central
bank or other governmental authority asserts that it is unlawful, for such Bank
or its Eurodollar Lending Office to perform its obligations hereunder to make
TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain TIBO
Rate Advances or Eurocurrency Rate Advances hereunder, (i) all TIBO Rate
Advances and Eurocurrency Rate Advances of such Bank to any Borrower then
outstanding shall be redenominated into Dollars and begin bearing interest at
the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese
Yen but begin bearing interest at the Japan Base Rate) for the Interest Period
selected by such Borrower in accordance with the procedures of Section 2.02(a) or
Section
2.03(a), notwithstanding any prior election by such Borrower to the
contrary, either (x) one Business Day after such notice, or (y) if such Bank may
lawfully continue to maintain and fund such Advances at the applicable
Eurocurrency Rate or TIBO Rate to a later day during such Interest Period, on
such later day (in which case such Borrower shall in addition reimburse such
Bank for any resulting losses as provided in Section 8.04(b)) and
(ii) the obligation of such Bank to make TIBO Rate Advances or Eurocurrency Rate
Advances, as applicable, shall be suspended until such Bank shall notify the
Agent that the circumstances causing such suspension no longer exist, and until
such notification has been given (i) in the case of Eurocurrency Rate Advances,
such Bank shall fund its Revolving Credit Advance made in connection with each
Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base
Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan
Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan
Base Rate Advances.
Β
(d)Β Β Β Β If the Majority Banks
shall, at least one Business Day before the requested date of, or the proposed
Conversion, Redenomination or continuation of the Advances comprising all or
part of, any requested Revolving Credit Borrowing or Term Loan Borrowing, notify
the Agent that the Eurocurrency Rate for Eurocurrency Rate Advances comprising
such Borrowing will not adequately reflect the cost to such Majority Banks of
making or funding their respective Eurocurrency Rate Advances for such Revolving
Credit Borrowing or Term Loan Borrowing, the Agent shall so notify the
Borrowers, and (1) each such outstanding Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into (or if such Advance is then a Base Rate Advance, shall continue
as), and with respect to a requested Advance as part of a requested Borrowing,
such Advance shall be, a Base Rate Advance, and (2) the right of the requesting
Borrower to select the Eurocurrency Rate for such Borrowing, and the right of
any Borrower to Convert Advances into, or continue Advances as, Eurocurrency
Rate Advances, or to select the Eurocurrency Rate for any subsequent Borrowing,
shall be suspended until the Agent shall notify the Borrowers and the Banks that
the circumstances causing such suspension no longer exist, and each Advance
comprising such Borrowing shall be a Base Rate Advance.
Β
(e)Β Β Β Β If the Majority Japan
Local Currency Banks shall, at least one Business Day before the requested date
of, or the proposed Conversion or continuation of the Advances comprising all or
part of any requested Japan Local Currency Borrowing (or on the date of such
Borrowing if it is being requested on a same-day basis), notify the Japan Local
Currency Agent that the TIBO Rate for TIBO Rate Advances comprising such
Borrowing will not adequately reflect the cost to such Majority Japan Local
Currency Banks of making or funding their respective TIBO Rate Advances for such
Japan Local Currency Borrowing, the Japan Local Currency Agent shall so notify
CFC and (1) each such outstanding TIBO Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert (or if such
Advance is then a Japan Base Rate Advance, shall continue as), and with respect
to a requested Japan Local Currency Advance as part of a requested Borrowing,
such Japan Local Currency Advance shall be a Japan Base Rate Advance, and (2)
the right of CFC to select the TIBO Rate for such Borrowing, and the right of
CFC to Convert Advances into, or continue Advances as, TIBO Rate Advances, or
select the TIBO Rate for any subsequent Borrowing, shall be suspended until the
Japan Local Currency Agent shall notify the Borrowers and the Japan Local
Currency Banks that the circumstances causing such suspension no longer exist,
and each Advance comprising such Borrowing shall be a Japan Base Rate
Advance.
Β
(f)Β Β Β Β In the event that a
Bank (an βAffected
Bankβ) either demands payment from any Borrower at any time pursuant to
subsection (a) or (b) of this Section 2.10 or fails
to consent to any extension of the Current Termination Date requested by the
Borrowers under Section 2.16, then
from such time and for so long thereafter as such Bank remains an Affected Bank,
the Borrowers may either (1) terminate such Affected Bankβs Commitment hereunder
or (2) replace such Affected Bank with another bank or banks acceptable to the
Agent (the consent of the Agent not to be unreasonably withheld); provided that (i) no
Event of Default has occurred and is continuing at such time, (ii) in the case
of clause (2), the Affected Bank and the replacement bank(s) execute and deliver
to the Agent an Assignment and Acceptance and such other documents, agreements
and instruments as the Agent may reasonably require in order to effectuate the
assumption by such replacement bank(s) of the Affected Bankβs obligations
hereunder, and (iii) the Affected Bank has been paid all amounts due to it
hereunder.Β Β In no event shall the replacement of an Affected Bank
impair or otherwise affect the obligation of the applicable Borrower or
Borrowers to make the payments demanded by such Affected Bank pursuant to this
Section 2.10
and, if applicable, Section
8.04(b).
Β
SECTION
2.11.Β Payments
and Computations.
Β
(a)Β Β Β Β The Borrowers shall
make each payment hereunder and under the Notes (except with respect to
principal of, interest on, and other amounts relating to Japan Local Currency
Advances or Advances denominated in an Agreed Currency other than Dollars),
without set-off, deduction, or counterclaim, not later than 11:00 A.M. (New York
City time) on the day when due in Dollars to the Agent in same day funds by
deposit of such funds to the Agentβs account maintained at the Payment Office
for Dollars in New York City.Β Β The Borrowers shall make each payment
hereunder and under the Notes with respect to principal of, interest on, and
other amounts relating to Advances (other than Japan Local Currency Advances)
denominated in an Agreed Currency other than Dollars, without set-off,
deduction, or counterclaim, not later than 11:00 A.M. (London time) on the day
when due in such Agreed Currency to the Agent in same day funds by deposit of
such funds to the Agentβs account maintained at the Payment Office for such
Agreed Currency.Β Β CFC shall make each payment under the Japan Local
Currency Addendum with respect to principal of, interest on, and other amounts
relating to Japan Local Currency Advances, without set-off, deduction, or
counterclaim, not later than 11:00 a.m. (Tokyo time) on the day when due in
Japanese Yen to the Japan Local Currency Agent in same day funds by deposit of
such funds to the Japan Local Currency Agentβs account at the Payment Office set
forth in the Japan Local Currency Addendum.Β Β The Agent or the Japan
Local Currency Agent, as applicable, will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section 2.02(c),
2.05(d), 2.10, 2.12 or 8.04) to the
applicable Banks for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any Bank
to such Bank for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement.
Β
(b)Β Β Β Β All computations of
interest based on the Base Rate determined pursuant to clause (a) or (b) of the
definition thereof shall be made by the Agent on the basis of a year of 365 or
366 days, as the case may be; all computations of interest on Japan Local
Currency Advances based on the Japan Base Rate shall be made by the Japan Local
Currency Agent on the basis of a year of 365 or 366 days, as the case may be;
and all computations of interest based on the Eurocurrency Rate, the TIBO Rate
or the Federal Funds Rate, and all computations of the Facility Fees shall be
made by the Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Facility Fees are
payable.Β Β Each determination by the Agent or the Japan Local Currency
Agent, as the case may be, of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
Β
(c)Β Β Β Β Whenever any
payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest or Facility Fees, as the case may be; provided, however, if such
extension would cause payment of interest on or principal of Eurocurrency Rate
Advances or TIBO Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day and such
contraction of time shall in such case reduce the days included in the
computation of payment of interest.
Β
(d)Β Β Β Β Unless the Agent
shall have received notice from a Borrower prior to the date on which any
payment is due to the Banks hereunder that such Borrower will not make such
payment in full, the Agent may assume that such Borrower has made such payment
in full to the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due such Bank.Β Β If and to the extent that
such Borrower shall not have so made such payment in full to the Agent, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
Β
SECTION
2.12.Β Taxes.Β Β
Β
(a)Β Β Β Β Any and all payments
by any of the Borrowers hereunder, under the Japan Local Currency Addendum or
under each of the Notes shall be made, in accordance with Section 2.11, free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the
case of each Bank, the Japan Local Currency Agent and the Agent, taxes imposed
on its income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank, the Japan Local Currency Agent or the Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Bank, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction of such Bankβs Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as βTaxesβ).Β Β If
any Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder, under the Japan Local Currency Addendum or under any
Note to any Bank, the Japan Local Currency Agent or the Agent, (i) the sum
payable by such Borrower shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12) such
Bank, the Japan Local Currency Agent or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
Β
(b)Β Β Β Β In addition, the
Borrowers agree to pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder, under the Japan Local Currency Addendum or under the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Japan Local Currency Addendum or the Notes
(hereinafter referred to as βOther
Taxesβ).Β Β If any such Other Taxes are attributable to a
specific Borrower, they shall be paid by such Borrower (or in the case of CFC,
by CFSC).Β Β In all other cases, they shall be paid by
Caterpillar.
Β
(c)Β Β Β Β Each Borrower will
indemnify each Bank, the Japan Local Currency Agent and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.12) paid by
such Bank, the Japan Local Currency Agent or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto.Β Β This indemnification shall be made within 30
days from the date such Bank, the Japan Local Currency Agent or the Agent (as
the case may be) makes written demand therefor.
Β
(d)Β Β Β Β Within 30 days after
the date of any payment of Taxes, the Borrower paying such Taxes will furnish to
the Agent, at its address referred to in Section 8.02, a copy
of a receipt evidencing payment thereof; provided, however, that such
copy shall be furnished solely for the purpose of enabling the Agent to verify
the payment of such Taxes by such Borrower as required above.Β Β If no
Taxes are payable in respect of any payment hereunder, under the Japan Local
Currency Addendum or under the Notes, the Borrowers will furnish to the Agent,
at such address, a certificate from each appropriate taxing authority, or an
opinion of counsel acceptable to the Agent, in either case stating that such
payment is exempt from or not subject to Taxes; provided, however, that if any
Bank, the Agent or the Japan Local Currency Agent, as a recipient of payments
called for hereunder, shall be exempt from or entitled to a reduced rate of any
Taxes, particularly those imposed by way of withholding, whether by virtue of
the provisions of a relevant treaty or otherwise, it shall be incumbent upon
such Bank, the Agent or the Japan Local Currency Agent to (a) so inform the
Borrowers, (b) furnish to the Borrowers whatever certification or other
documentation may be required by law or regulation to establish such exemption
or reduced rate, and (c) cooperate with the Borrowers in any and all other
respects to the extent necessary to establish such exemption or eligibility for
reduced rate.
Β
(e)Β Β Β Β Any Bank whose
Advances have resulted in the imposition of Taxes shall use its best efforts
(consistent with its internal policy and legal and regulatory restrictions) to
take such steps as would eliminate or reduce the amount of such Taxes; provided that no such
steps shall be required to be taken if, in the reasonable judgment of such Bank,
such steps would be disadvantageous to such Bank.
Β
(f)Β Β Β Β Without prejudice to
the survival of any other agreement of the Borrowers hereunder, the agreements
and obligations of the Borrowers contained in this Section 2.12 shall
survive the payment in full of principal and interest hereunder, under the Japan
Local Currency Addendum and under the Notes.
Β
SECTION
2.13.Β Sharing
of Payments, Etc.Β Β If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Revolving Credit Advances made by it (other than
pursuant to Sections
2.02(c), 2.05(d), 2.10, 2.12 or 8.04) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Banks, such Bank shall forthwith notify the Agent thereof
and purchase from the other Banks such participations in the Revolving Credit
Advances made by them as shall be necessary to cause such purchasing 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 Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bankβs ratable share (according
to the proportion of (i) the amount of such Bankβs required repayment to (ii)
the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered.Β Β Each Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.13 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 Bank were the direct creditor of such Borrower in the amount of such
participation.
Β
SECTION
2.14.Β Tax
Forms.Β Β Each Bank that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code), other than any Japan
Local Currency Bank that is an Affiliate, branch or agency of a Bank, shall
submit to the Borrowers and the Agent, on or before the Closing Date (or in the
case of any Person becoming a Bank hereunder pursuant to Section 2.05(c) or
Section 8.07,
on or before the date of acceptance by the Agent of the applicable Assumption
and Acceptance or Assignment and Acceptance), duly completed and signed copies
of either Form W-8BEN (relating to such Bank and entitling it to a complete
exemption from withholding on all amounts to be received by such Bank at any
Applicable Lending Office designated by such Bank, including fees, under this
Agreement) or Form W-8ECI (relating to all amounts to be received by such Bank
at any Applicable Lending Office designated by such Bank, including fees, under
this Agreement) of the United States Internal Revenue Service and Form W-8BEN
(relating to the foreign status exemption from United States federal income tax
backup withholding), or, in any such case, such successor forms as shall be
adopted from time to time by the relevant United States taxing
authorities.Β Β Thereafter and from time to time, each such Bank shall,
to the extent that it may lawfully do so, submit to the Borrowers and the Agent
such additional duly completed and signed copies of one or the other of such
forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may be (i) requested by the
Borrowers or the Agent from such Bank and (ii) required under then-current
United States law or regulations to determine the United States withholding
taxes on payment in respect of all amounts to be received by such Bank at any
Applicable Lending Office designated by such Bank, including fees, under this
Agreement.Β Β Upon the request of the Borrowers or the Agent, each Bank
that is a United States person (as such term is defined in Section 7701(a)(30)
of the Code) shall submit to the Borrowers and the Agent a certificate to the
effect that it is such a United States person.Β Β If any Bank determines
that it is unable to submit to the Borrowers and the Agent any form or
certificate that such Bank is obligated to submit pursuant to this Section 2.14, or that
such Bank is required to withdraw or cancel any such form or certificate
previously submitted, such Bank shall promptly notify the Borrower and the Agent
of such fact.
Β
SECTION
2.15.Β Market
Disruption; Denomination of Amounts in Dollars.
Β
(a)Β Β Β Β Market
Disruption.Β Β Notwithstanding the satisfaction of all conditions
referred to in Article
III and this Article II with
respect to any Borrowing in any Agreed Currency other than Dollars, if there
shall occur on or prior to the date of such Borrowing, or the continuation,
Conversion or Redenomination of such Borrowing in or to an Agreed Currency other
than Dollars, any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
(i) in the reasonable opinion of the Borrowers, the Agent or the Banks having at
least 66-2/3% of the Available Revolving Credit Commitments, in the case of a
Revolving Credit Borrowing, or 66-2/3% of the then aggregate outstanding Term
Loan Advances, in the case of a Term Loan Borrowing, make it impracticable for
the Eurocurrency Rate Advances comprising such Borrowing to be denominated in
the Agreed Currency specified by the applicable Borrower, then the Agent shall
forthwith give notice thereof to such Borrower and the Banks, or the applicable
Borrower shall give notice to the Agent and the Banks, as the case may be, and
such Eurocurrency Rate Advances shall not be denominated in such currency but
shall be made on the date of such Borrowing, or continued, Converted or
Redenominated, as applicable, on the date of such continuation, Conversion or
Redenomination, in Dollars, in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related Notice of
Borrowing, or the Dollar Amount of the Advances being continued, Converted or
Redenominated, as applicable, as Base Rate Advances, unless the applicable
Borrower notifies the Agent at least one (1) Business Day before such date that
(x) in the case of a requested Borrowing, it elects not to borrow on such date
or (y) in the case of a requested Borrowing, continuation, Conversion or
Redenomination, it elects to borrow on such date in a different Agreed Currency,
or continue the applicable Advances in, or Convert or Redenominate the
applicable Advances to, a different Agreed Currency, in which the denomination
of such Advances would in the opinion of the Agent or the Banks having at least
66-2/3% of the Available Revolving Credit Commitments, in the case of a
Revolving Credit Borrowing, or 66-2/3% of the then aggregate outstanding Term
Loan Advances, in the case of a Term Loan Borrowing, be practicable and in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Notice of Borrowing, or the Dollar Amount of the
Advances being continued, Converted or Redenominated, as applicable, or (ii) in
the reasonable opinion of any Bank, make it impracticable for the Eurocurrency
Rate Advance of such Bank comprising part of such Borrowing to be denominated in
the Agreed Currency specified by the applicable Borrower, then the Agent shall
forthwith give notice thereof to such Borrower, and the Eurocurrency Rate
Advance of such Bank as part of such Borrowing shall not be denominated in such
currency but shall be made on the date of such Borrowing, or continued,
Converted or Redenominated, as applicable, in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount of such
Bankβs Advance, as a Base Rate Advance, unless the applicable Borrower notifies
the Agent at least one (1) Business Day before such date that (x) in the case of
a requested Borrowing, it elects not to borrow on such date or (y) in the case
of a requested Borrowing, continuation, Conversion or Redenomination, it elects
to borrow on such date in a different Agreed Currency, or continue the
applicable Advances as, or Convert or Redenominate the applicable Advances to a
different Agreed Currency, in which the denomination of all such Advances as
part of such Borrowing would in the opinion of the Agent or the Banks having at
least 66-2/3% of the Available Revolving Credit Commitments, in the case of a
Revolving Credit Borrowing, or 66-2/3% of the then aggregate outstanding Term
Loan Advances, in the case of a Term Loan Borrowing, be practicable and in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Notice of Borrowing, or the Dollar Amount of the
Advances being continued, Converted or Redenominated, as
applicable.
Β
(b)Β Β Β Β Calculation of
Amounts.Β Β Except as set forth below, all amounts referenced in
this Article II
shall be calculated using the Dollar Amount determined based upon the Equivalent
Amount in effect as of the date of any determination thereof; provided, however, that to the
extent any Borrower shall be obligated hereunder to pay in Dollars any Borrowing
denominated in a currency other than Dollars, such amount shall be paid in
Dollars using the Dollar Amount of the Borrowing (calculated based upon the
Equivalent Amount in effect on the date of payment
thereof).Β Β Notwithstanding anything herein to the contrary, the full
risk of currency fluctuations shall be borne by the Borrowers and the Borrowers
agree to indemnify and hold harmless each Japan Local Currency Bank, the Agent
and the Banks from and against any loss resulting from any Borrowing denominated
in a currency other than in Dollars.
Β
SECTION
2.16.Β Extensions
of the Commitments.Β Β
Β
(a)Β Β Β Β During the period
from the date that is 60 days prior to the Current Termination Date to the date
that is 32 days prior to the Current Termination Date, the Borrowers may, by
written notice (an βExtension Requestβ)
given to the Agent, request that the Current Termination Date be
extended.Β Β Each such Extension Request shall contemplate an extension
of the Current Termination Date to a date that is not later than 364 days after
the date of issuance of the Extension Confirmation Notice.
Β
(b)Β Β Β Β The Agent shall
promptly advise each Bank, including each Japan Local Currency Bank, of its
receipt of any Extension Request.Β Β Each Bank may, in its sole
discretion, consent to a requested extension by giving written notice thereof to
the Agent by not later than the Business Day (the βExtension Confirmation
Dateβ) immediately preceding the date that is 31 days after the date of
the Extension Request.Β Β Failure on the part of any Bank to respond to
an Extension Request by the applicable Extension Confirmation Date shall be
deemed to be a denial of such request by such Bank.Β Β If Banks having
at least 50% of the Commitments at the time of the issuance of any Extension
Request shall consent in writing to the requested extension, such request shall
be granted with respect to each consenting Bank; provided, however, that no such
consent shall be granted in connection with Japan Local Currency Advances unless
Japan Local Currency Banks having at least 50% of the Japan Local Currency
Commitments at the time of issuance of any Extension Request shall consent in
writing to the requested extension.Β Β Promptly following the opening of
business on the first Business Day following the applicable Extension
Confirmation Date, the Agent shall notify the Borrowers in writing as to whether
the requested extension has been granted (such written notice being an βExtension Confirmation
Noticeβ) and, if granted, such extension shall become effective upon the
issuance of such Extension Confirmation Notice.Β Β The Agent shall
promptly thereafter provide a copy of such Extension Confirmation Notice to each
Bank.
Β
(c)Β Β Β Β Each Extension
Confirmation Notice shall, if applicable, specify therein the date to which the
Current Termination Date is to be extended in respect of each of the consenting
Banks (such date being referred to herein as the βExtended Termination
Dateβ).Β Β The Current Termination Date with respect to (i) any
Banks which shall have denied such requested extension in writing, or which
shall have failed to respond to the applicable Extension Request, and (ii) all
Banks, in the event that fewer than the minimum number of Banks specified above
shall consent in writing to such Extension Request, shall continue to be the
then existing Current Termination Date (the βEarlier Termination
Dateβ).Β Β The Current Termination Date with respect to those
Banks which shall have consented to the applicable Extension Request, in the
event that the requisite number of Banks specified above shall consent in
writing to such Extension Request, shall continue to be the Earlier Termination
Date until the end of the day immediately preceding the Current Termination Date
then in effect at which time the Current Termination Date then in effect shall
become the Extended Termination Date provided for in such Extension Confirmation
Notice.Β Β In no event shall the term of this Agreement, after giving
effect to any extension of the Current Termination Date at any time, exceed a
period of 364 days.
Β
(d)Β Β Β Β If fewer than all
of the Banks agree to any extension of the Current Termination Date that shall
have become effective in accordance with this SectionΒ 2.16,
(i)Β no Advance made or to be made prior to the Earlier Termination Date
shall have an Interest Period which ends after the Earlier Termination Date,
(ii)Β all Advances, Japan Local Currency Advances, if applicable, and all
other obligations, of the Borrower to the Banks hereunder shall be repaid in
full on the Earlier Termination Date (whether from proceeds of Borrowings made
on the Earlier Termination Date from the Banks having agreed to such extension
or from other sources) and (iii) the Commitment or Japan Local Currency
Commitment, as applicable, of each Bank that shall not have consented to such
extension shall terminate on the Earlier Termination Date, and such Bank shall
have no further obligation hereunder other than in respect of obligations
expressly contemplated herein to survive the termination of this
Agreement.Β Β Such Bank shall also receive from the applicable Borrower
all other amounts owing to it hereunder or in connection herewith on the Earlier
Termination Date.
Β
SECTION
2.17.Β Term Loan
Election.Β Β The Borrowers, at least ten (10) Business
Days prior to the then effective Current Termination Date, may elect to convert,
as of such Current Termination Date, the aggregate principal amount of the
Advances then outstanding into one-year term loan Advances denominated in
currencies permitted hereunder (each such Advance upon such conversion, a βTerm Loan Advanceβ,
and such election, the βTerm Loan Electionβ);
provided, however, that such
election shall not be available to the Borrowers, and such conversion shall not
be made, if (a) an Event of Default or unmatured Event of Default has occurred
and is outstanding on or prior to the date of such election or the date on which
such conversion is to occur, (b) the then effective Current Termination Date has
been extended, or (c) the Revolving Credit Termination Date has occurred as a
result of an event described in clause (ii) of the
definition thereof.Β Β The conversion of Advances into Term Loan
Advances pursuant to a Term Loan Election shall become effective on the Current
Termination Date (the βTerm Loan Effective
Dateβ).Β Β Each such Term Loan Advance shall continue to be part
of the Borrowing that it was a part of at the time of the Term Loan Effective
Date.Β Β The aggregate principal amount of the Term Loan Advances,
together with all accrued and unpaid interest thereon, and all outstanding fees,
costs and expenses incurred in connection herewith, shall be due and payable on
the Term Loan Repayment Date.Β Β Β No amount repaid in respect of a
Term Loan Advance may be reborrowed.
Β
Β
CONDITIONS
OF LENDING
Β
SECTION
3.01.Β Conditions
Precedent to Initial Advances.Β Β The obligation of each
Bank to make its initial Advance on or after the Closing Date is subject to the
conditions precedent that (i) all principal, accrued interest, fees, expenses,
costs and other amounts outstanding under the terms of the Prior Agreement,
accrued to the Closing Date, shall have been paid, and the commitments of the
lenders thereunder to extend credit shall have terminated, and (ii) the Agent
shall have received on or before the day of the initial Borrowing the following,
each dated the Closing Date, in form and substance satisfactory to the Agent and
in sufficient copies for each Bank:
Β
(a)Β Β Β Β A fully executed
copy of this Agreement and of the Japan Local Currency Addendum.
Β
(b)Β Β Β Β Certified copies of
the resolutions of the Board of Directors of each Borrower evidencing corporate
authority to execute and deliver this Agreement, the Japan Local Currency
Addendum (if applicable), the Notes and the other documents to be delivered
hereunder, and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement, the Japan Local
Currency Addendum (if applicable), the Notes and the other documents to be
delivered hereunder.
Β
(c)Β Β Β Β A certificate of
the Secretary or an Assistant Secretary of each Borrower certifying the names
and true signatures of the officers of such Borrower authorized to sign this
Agreement, the Japan Local Currency Addendum (if applicable) and the Notes and
the other documents to be delivered hereunder.
Β
(d)Β Β Β Β A favorable opinion
of counsel for each of Caterpillar and CFSC, given upon their express
instructions, substantially in the form of Exhibit D
hereto.
Β
(e)Β Β Β Β A favorable opinion
of Sidley Austin LLP, counsel for the Agent, given upon the Agentβs express
instructions, substantially in the form of Exhibit E
hereto.
Β
In addition, (i)
the obligation of each Bank requesting Notes to make its initial Advance is
subject to the further condition precedent that the Agent shall have received,
on or before the day of the initial Borrowing, the Notes dated the Closing Date
and payable to the order of such Bank, and (ii) the obligation of the Japan
Local Currency Banks to make the initial Advances under the Japan Local Currency
Addendum shall be subject to any further conditions set forth in the Japan Local
Currency Addendum.
Β
SECTION
3.02.Β Conditions
Precedent to Each Borrowing.Β Β The obligation of each
Bank to make an Advance on the occasion of each Borrowing (including the initial
Borrowing) shall be subject to the further conditions precedent that on the date
of such Borrowing:
Β
(a)Β Β Β Β the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by a Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by such Borrower that on the date
of such Borrowing such statements are true):
Β
Β Β Β Β (i)Β Β Β Β Β The representations
and warranties contained in Section 4.01
(excluding those contained in the second sentence of subsection (e) and in
subsection (f) thereof), and if such Borrowing is by CFSC or CFC, Section 4.02, are
correct on and as of the date of such Borrowing, before and after giving effect
to such Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
Β
Β Β Β Β (ii)Β Β Β Β No event has
occurred and is continuing, or would result from such Borrowing or from the
application of the proceeds therefrom, which constitutes an Event of Default
with respect to such Borrower; and
Β
(b)Β Β Β Β the Agent shall
have received such other approvals, opinions or documents as any Bank through
the Agent may reasonably request.
Β
SECTION
3.03.Β Conditions
Precedent to Certain Borrowings.Β Β The obligation of each
Bank to make that portion of an Advance on the occasion of any Borrowing which
would increase the aggregate outstanding amount of Advances owing to such Bank
over the aggregate amount of such Advances outstanding immediately prior to the
making of such Advance shall be subject to the further conditions precedent that
on the date of such Borrowing the following statements shall be true (and each
of the giving of the applicable Notice of Borrowing and the acceptance by a
Borrower of the proceeds of such Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Borrowing such statements are
true):Β Β (i) the representations and warranties contained in subsection
(f) of Section
4.01 are correct on and as of the date of such Borrowing, before and
after giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and (ii) no event has occurred
and is continuing, or would result from such Borrowing or from the application
of the proceeds therefrom, which would constitute an Event of Default with
respect to such Borrower but for the requirement that notice be given or time
elapse or both.
Β
Β
REPRESENTATIONS
AND WARRANTIES
Β
SECTION
4.01.Β Representations
and Warranties of the Borrowers.Β Β Each Borrower
represents and warrants as of the Closing Date and on each date specified in
Article III, as
follows:
Β
(a)Β Β Β Β Organization;
Qualification.Β Β Such Borrower is a corporation duly organized,
validly existing and in good standing (1) under the laws of the State of
Delaware, in the case of Caterpillar and CFSC, and (2) under the laws of Japan,
in the case of CFC, and is duly qualified to transact business and is in good
standing as a foreign corporation in every jurisdiction in which failure to
qualify may materially adversely affect (i) the financial condition or
operations of such Borrower and its consolidated Subsidiaries taken as a whole
or (ii) the ability of such Borrower to perform its obligations under this
Agreement and its Notes and under the Japan Local Currency Addendum, in the case
of CFC and CFSC.
Β
(b)Β Β Β Β Authority; No
Conflict.Β Β The execution, delivery and performance by such
Borrower of this Agreement and its Notes, and the Japan Local Currency Addendum,
in the case of CFC and CFSC, are within such Borrowerβs corporate powers, have
been duly authorized by all necessary corporate action, and do not contravene
(i) such Borrowerβs charter or by-laws or (ii) any law or any contractual
restriction binding on or affecting such Borrower.
Β
(c)Β Β Β Β Governmental
Consents.Β Β No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by such Borrower of
this Agreement or its Notes, or of the Japan Local Currency Addendum in the case
of CFC and CFSC.
Β
(d)Β Β Β Β Execution;
Enforceability.
Β
Β Β Β Β (i)Β Β Β Β This Agreement has
been duly executed and delivered by a duly authorized officer of such
Borrower.Β Β Upon execution of this Agreement by the Agent and when the
Agent shall have been notified by each Bank that such Bank has executed this
Agreement, this Agreement will be, and such Borrowerβs Notes when executed and
delivered hereunder will be, legal, valid and binding obligations of such
Borrower enforceable against such Borrower in accordance with their respective
terms, except as enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditorsβ rights generally and by the effect of general principles of
equity.
Β
Β Β Β Β (ii)Β Β Β Β The Japan Local
Currency Addendum has been duly executed and delivered by a duly authorized
officer of each of CFSC and CFC.Β Β Upon execution of the Japan Local
Currency Addendum by the Agent and the Japan Local Currency Agent and when the
Japan Local Currency Agent or the Agent shall have been notified by each Japan
Local Currency Bank that such Japan Local Currency Bank has executed the Japan
Local Currency Addendum, the Japan Local Currency Addendum will be the legal,
valid and binding obligation of each of CFSC and CFC enforceable against each of
CFSC and CFC in accordance with its terms, except as enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditorsβ rights generally and by the
effect of general principles of equity.
Β
(e)Β Β Β Β Accuracy of Information;
Material Adverse Change.Β Β The balance sheets of Caterpillar and
CFSC and their respective Subsidiaries as at December 31, 2007 and as at June
30, 2008, and the related statements of income and retained earnings of
Caterpillar and CFSC and their respective Subsidiaries for the fiscal year and
six-month period, respectively, then ended, copies of which have been furnished
to each Bank, fairly present the financial condition of such Borrower and its
Subsidiaries as at such dates and the results of the operations of such Borrower
and its Subsidiaries for such periods, all in accordance with generally accepted
accounting principles consistently applied.Β Β Since December 31, 2007,
there has been no material adverse change in such condition or
operations.
Β
(f)Β Β Β Β Litigation; Loss
Contingencies.Β Β There is no pending or threatened action or
proceeding affecting such Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator which is reasonably likely to materially
adversely affect the financial condition or operations of such Borrower and its
consolidated Subsidiaries taken as a whole or which purports to affect the
legality, validity or enforceability of this Agreement, the Japan Local Currency
Addendum or any Note or which may materially adversely affect the ability of
such Borrower to perform its obligations under this Agreement and its Notes or
under the Japan Local Currency Addendum in the case of CFC and
CFSC.
Β
(g)Β Β Β Β Margin
Stock.Β Β Such Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
Β
(h)Β Β Β Β ERISA.Β Β Each
Plan of such Borrower is in substantial compliance with ERISA, the Code and
regulations thereunder.Β Β No Plan has an accumulated or waived funding
deficiency within the meaning of Section 412 of the Code.Β Β Neither
such Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not
a Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA) (i) has engaged
in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975
of the Code or (ii) has taken or failed to take any action which would
constitute or result in an ERISA Termination Event.Β Β Neither such
Borrower nor any ERISA Affiliate has (i) failed to make a required contribution
or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a Multiemployer
Plan.Β Β Neither such Borrower nor any ERISA Affiliate has failed to
make a required installment or any other required payment under Section 412 of
the Code on or before the due date for such installment or other
payment.Β Β Neither such Borrower nor any ERISA Affiliate has incurred
any liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid.
Β
(i)Β Β Β Β Taxes;
Assessments.Β Β Such Borrower has paid or discharged, or caused
to be paid or discharged, before the same shall have become delinquent, all
taxes, assessments and governmental charges levied or imposed upon such the
Borrower or any Subsidiary of such Borrower or upon the income, profits or
property of such Borrower or any Subsidiary of such Borrower, other than such
taxes, assessments and governmental charges the amount, applicability or
validity of which is being contested in good faith by appropriate proceedings
and for which adequate reserves have been established.
Β
SECTION
4.02.Β Additional
Representations and Warranties of CFSC and CFC.
Β
Each of CFSC and
CFC represents and warrants that neither it nor any of its Subsidiaries is an
βinvestment companyβ or a company βcontrolledβ by an βinvestment companyβ,
within the meaning of the Investment Company Act of 1940, as
amended.
Β
Β
COVENANTS
OF THE BORROWERS
Β
SECTION
5.01.Β Affirmative
Covenants.Β Β So long as any Advance shall remain unpaid
or any Bank shall have any Commitment hereunder, each Borrower (provided, that for
purposes of Sections
5.01(f)(i), (ii), (iii), (v), (vi), (viii), (ix) and (x), the term
Borrower refers to each of Caterpillar and CFSC, but not to CFC) will, unless
the Majority Banks shall otherwise consent in writing:
Β
(a)Β Β Β Β Corporate Existence,
Etc.Β Β Subject to Section 5.02(b), do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises;
provided, however, that such
Borrower shall not be required to preserve any such right or franchise if its
board of directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Borrower and that the loss
thereof is not disadvantageous in any material respect to the
Banks.
Β
(b)Β Β Β Β Compliance with Laws,
Etc.Β Β Comply, and cause each of its Subsidiaries to comply, in
all material respects with all applicable laws, rules, regulations and orders,
noncompliance with which may materially adversely affect (i) the financial
condition or operations of such Borrower and its consolidated Subsidiaries taken
as a whole or (ii) the ability of such Borrower to perform its obligations under
this Agreement, its Notes, and, if applicable, the Japan Local Currency
Addendum.
Β
(c)Β Β Β Β Maintenance of
Properties.Β Β Cause all properties used or useful in the conduct
of its business or the business of any of its Subsidiaries to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
such Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that nothing
in this Section shall prevent such Borrower from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
reasonable judgment of such Borrower, desirable in the conduct of its business
or the business of any Subsidiary of such Borrower and not disadvantageous in
any material respect to the Banks.
Β
(d)Β Β Β Β Payment of Taxes and Other
Claims.Β Β Pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon such Borrower or any of its
Subsidiaries or upon the income, profits or property of such Borrower or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of such Borrower
or any of its Subsidiaries; provided, however, that such
Borrower shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate
proceedings.
Β
(e)Β Β Β Β Use of
Proceeds.Β Β Use all proceeds of Advances solely for general
corporate purposes, including, but not limited to, repaying or prepaying
Advances in accordance with the terms of this Agreement.
Β
(f)Β Β Β Β Reporting
Requirements.Β Β Furnish to the Banks:
Β
Β Β Β Β (i)Β Β Β Β as soon as
available and in any event within forty-five (45) days after the end of each of
the first three quarters of each fiscal year of such Borrower, a consolidated
balance sheet of such Borrower and its Subsidiaries as of the end of such
quarter, and a consolidated statement of income and retained earnings of such
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter;
Β
Β Β Β Β (ii)Β Β Β Β as soon as
available and in any event within ninety (90) days after the end of each fiscal
year of such Borrower, a copy of the annual report for such year for such
Borrower and its Subsidiaries, containing consolidated financial statements of
such Borrower and its Subsidiaries for such year, certified (A) in a manner
acceptable to the Majority Banks by PricewaterhouseCoopers L.L.P. or other
independent public accountants acceptable to the Majority Banks and (B) as may
be required under the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and all rules and regulations enacted under or
in connection therewith;
Β
Β Β Β Β (iii)Β Β Β Β together with each
delivery of any financial statements pursuant to clauses (i) and (ii) above, a
Compliance Certificate in substantially the form of Exhibit F-1 or F-2 hereto, as
applicable, demonstrating in reasonable detail compliance as at the end of the
applicable accounting periods with the covenants contained in Section 5.03 (in the
case of Caterpillar) and Sections 5.04(a) and
(b) (in the
case of CFSC);
Β
Β Β Β Β (iv)Β Β Β Β as soon as possible
and in any event within five (5) days after the occurrence of each Event of
Default with respect to such Borrower and each event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default with
respect to such Borrower, continuing on the date of such statement, a statement
of the chief financial officer of such Borrower setting forth details of such
Event of Default or event and the action which such Borrower has taken and
proposes to take with respect thereto;
Β
Β Β Β Β (v)Β Β Β Β promptly after the
sending or filing thereof, copies of all reports which such Borrower sends to
any of its security holders, and copies of all reports and registration
statements (without exhibits) which such Borrower or any of its Subsidiaries
(without duplication) files with the Securities and Exchange Commission or any
national securities exchange, in each case without duplication of materials
furnished to the Banks pursuant to clauses (i) or (ii) of this subsection
(f);
Β
Β Β Β Β (vi)Β Β Β Β promptly after the
written request of the Agent or any Bank, copies of all reports and notices
which such Borrower or any Subsidiary of such Borrower files under ERISA with
the Internal Revenue Service or the PBGC or the U.S. Department of Labor or
which such Borrower or any Subsidiary of such Borrower receives from any such
Person;
Β
Β Β Β Β (vii)Β Β Β Β promptly after (A)
the occurrence thereof, notice of the institution of or any material adverse
development in any action, suit or proceeding or any governmental investigation
or any arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against such Borrower or any of its
material property, or (B) actual knowledge thereof, notice of the threat of any
such action, suit, proceeding, investigation or arbitration, in each case which
such Borrower reasonably believes is likely to be resolved against such Borrower
and, if so resolved against such Borrower, is reasonably anticipated by such
Borrower to materially adversely affect (x) the financial condition of such
Borrower and its consolidated Subsidiaries taken as a whole or (y) the ability
of such Borrower to perform its obligations under this Agreement and its Notes,
and, if applicable, the Japan Local Currency AddendumΒ Β (without
duplication of notices furnished to the Banks pursuant to clause (v) of this
subsection (f));
Β
Β Β Β Β (viii)Β Β Β Β promptly after (A)
the occurrence thereof, notice that (1) an ERISA Termination Event or a
βprohibited transaction,β as such term is defined in Section 4975 of the Code,
with respect to any Plan of such Borrower has occurred, which such notice shall
specify the nature thereof and such Borrowerβs proposed response thereto, (2)
such Borrower or an ERISA Affiliate has failed to make a required installment or
any other required payment under Section 412 of the Code and (3) the plan
administrator of any Plan has applied under Section 412(d) of the Code for a
waiver of the minimum funding standards of Section 412(a) of the Code, together
with copies of such waiver application, and (B) actual knowledge thereof, copies
of any notice of the PBGCβs intention to terminate or to have a trustee
appointed to administer any Plan;
Β
Β Β Β Β (ix)Β Β Β Β (A) on the Closing
Date, the then Credit Ratings for such Borrower from S&P and Xxxxxβx and (B)
within two (2) Business Days after such Borrower receives notice from S&P or
Xxxxxβx of a change in any of such Borrowerβs Credit Ratings, such Borrowerβs
revised Credit Ratings (or, if applicable, notice that a Credit Rating will no
longer be received from such rating service); and
Β
Β Β Β Β (x)Β Β Β Β such other
information respecting the condition or operations, financial or otherwise, of
such Borrower or any of its Subsidiaries as any Bank through the Agent may from
time to time reasonably request in writing with an indication of the reason for
such request.
Β
Financial
statements and other documents required to be furnished pursuant to Section
5.01(f)(i) or (ii) (to the extent any such financial statements or other
documents are included in reports or other materials otherwise filed with the
Securities and Exchange Commission) may be delivered electronically and if so
delivered, shall be deemed to have been furnished on the date on which (i) the
applicable Borrower posts such financial statements or other documents, or
provides a link thereto, on such Borrowerβs website on the Internet, or (ii)
such financial statements or other documents are posted on behalf of the
applicable Borrower on the Approved Electronic Platform or an Internet or
intranet website, if any, to which each Bank and the Agent have access (whether
a commercial, third-party website or whether sponsored by the Agent or the
Securities and Exchange Commissionβs website located at
xxxx://xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxx.xxx).
Β
SECTION
5.02.Β Negative
Covenants.Β Β So long as any Advance shall remain unpaid
or any Bank shall have any Commitment hereunder, no Borrower will, without the
written consent of the Majority Banks:
Β
(a)Β Β Β Β Liens,
Etc.Β Β Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any lien, security interest or other
charge or encumbrance of any kind, (excluding Caterpillar Purchase Claims and
CFSC Purchase Claims, to the extent that such Purchase Claims could be deemed to
constitute liens or security interests), upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or permit any of
its Subsidiaries to assign, any right to receive income (excluding any
assignment of accounts receivable arising out of or in connection with the sale
or securitization by Caterpillar, CFSC or any Subsidiary of either of its
accounts receivable giving rise to Caterpillar Purchase Claims or CFSC Purchase
Claims), in each case to secure or provide for the payment of any Debt of any
Person, if the aggregate amount of the Debt so secured (or for which payment has
been provided) would at any time exceed an amount equal to 10% of Consolidated
Net Tangible Assets of such Borrower.
Β
(b)Β Β Β Β Mergers,
Etc.Β Β (i)Β Β Merge or consolidate with or into any
Person, or permit any of its Subsidiaries to do so, or (ii) convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, or (iii) together with one or more of its
consolidated Subsidiaries, convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of the assets of such Borrower and its consolidated Subsidiaries (whether
now owned or hereafter acquired) to any Person; except that any Subsidiary
of such Borrower may merge or consolidate with or into, or transfer assets to,
or acquire assets of, such Borrower or any other Subsidiary of such Borrower and
except that any Subsidiary of such Borrower may merge into or transfer assets to
such Borrower and such Borrower may merge with, and any Subsidiary of such
Borrower may merge or consolidate with or into, any other Person, provided in each case
that, immediately after giving effect to such proposed transaction, no Event of
Default with respect to such Borrower or event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default with respect to
such Borrower, would exist and in the case of any such merger to which any
Borrower is a party, a Borrower is the surviving corporation.
Β
SECTION
5.03.Β Financial
Covenant of Caterpillar.Β Β So long as any Advance shall
remain unpaid or any Bank shall have any Commitment hereunder, Caterpillar will,
unless the Majority Banks shall otherwise consent in writing, maintain at all
times during each fiscal year of Caterpillar, Consolidated Net Worth of not less
than an amount equal to 75% of Consolidated Net Worth as at the end of its
immediately preceding fiscal year.
Β
SECTION
5.04.Β Financial
and Other Covenants of CFSC.Β Β So long as any Advance
shall remain unpaid or any Bank shall have any Commitment hereunder, CFSC will,
unless the Majority Banks shall otherwise consent in writing:
Β
(a)Β Β Β Β Ratio of CFSC Consolidated
Debt to Consolidated Net Worth.
Β
Β Β Β Β (i)Β Β Β Β Maintain at all
times a ratio (the βLeverage Ratioβ) of
CFSC Consolidated Debt to CFSCβs Consolidated Net Worth of not greater than 10.0
to 1.Β Β For purposes of this subsection (i), the
Leverage Ratio at any time shall be equal to the average of the Leverage Ratios
as determined on the last day of each of the six preceding calendar
months.
Β
Β Β Β Β (ii)Β Β Β Β Maintain a Leverage
Ratio of not greater than 10.0 to 1 on each December 31, commencing December 31,
2008.Β Β For purposes of this subsection (ii), the
Leverage Ratio shall be the ratio of CFSC Consolidated Debt to CFSCβs
Consolidated Net Worth on the date for which computed.
Β
(b)Β Β Β Β Interest Coverage
Ratio.Β Β Maintain a ratio of (i) earnings of CFSC before income
taxes and βInterest Expenseβ (as defined below) to (ii) Interest Expense, in
each case calculated for the fiscal quarter then most recently ended for CFSC
and its Subsidiaries on a consolidated basis in accordance with generally
accepted accounting principles, of not less than 1.15 to 1 for each fiscal
quarter.Β Β βInterest Expenseβ
means, for any period of determination, all interest (without duplication),
whether paid in cash or accrued as a liability, on Debt of CFSC and its
Subsidiaries determined on a consolidated basis for such period (including
imputed interest on any capital lease of CFSC or its Subsidiaries) in accordance
with generally accepted accounting principles.
Β
(c)Β Β Β Β Support
Agreement.Β Β CFSC will not terminate, or make any amendment or
modification to, the Support Agreement which, in the determination of the Agent,
adversely affects the Banksβ interests pursuant to this Agreement, without
giving the Agent and the Banks at least thirty (30) days prior written notice
and obtaining the written consent of the Majority Banks.
Β
Β
EVENTS
OF DEFAULT
Β
SECTION
6.01.Β Events of
Default.Β Β If any of the following events (βEvents of Defaultβ)
shall occur and be continuing with respect to any Borrower:
Β
(a)Β Β Β Β Such Borrower shall
fail to pay (i) any principal of any of the Advances when the same becomes due
and payable, or (ii) any interest on any of the Advances, or any Facility Fee,
other fee or other amount payable by it hereunder (including, in the case of
CFSC, any amount payable under the CFSC Guaranty) by the later of (A) five (5)
Business Days after such item has become due and (B) two (2) Business Days after
receipt of written notice from the Agent that such item has become due;
or
Β
(b)Β Β Β Β Any representation
or warranty made by such Borrower herein or in the Japan Local Currency
Addendum, or by such Borrower (or any of its officers) in connection with this
Agreement or the Japan Local Currency Addendum, shall prove to have been
incorrect in any material respect when made or deemed made; or
Β
(c)Β Β Β Β Such Borrower shall
fail to perform or observe (i) any covenant or agreement made by it contained in
subsection (a) or (f)(iv) of Section 5.01 or in
Section 5.02 or
(ii) any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if the failure to perform or observe such other
term, covenant or agreement shall remain unremedied for 30 days after written
notice thereof shall have been received by such Borrower; provided, that should
CFSC or any of its Subsidiaries fail to observe any such term, covenant or
agreement referred to in subsections (i) or (ii) above, such failure shall not
be attributable to Caterpillar; or
Β
(d)Β Β Β Β Any of the
following shall occur:
Β
Β Β Β Β (i)Β Β Β Β such Borrower or
any Subsidiary of such Borrower (other than CFSC and its Subsidiaries in the
case of Caterpillar) shall fail to pay any principal of, premium or interest on,
or other amount owing in respect of any of its Debt which is outstanding in a
principal amount of at least $50,000,000 in the aggregate, in the case of
Caterpillar, or $35,000,000 in the aggregate, in the case of each of CFSC and
CFC (but excluding, in each case, Debt consisting of such Borrowerβs obligations
hereunder (including the Japan Local Currency Addendum, if applicable) or under
the Five-Year Credit Agreements) when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt, or
Β
Β Β Β Β (ii)Β Β Β Β such Borrower or
any Subsidiary of such Borrower (other than CFSC and its Subsidiaries in the
case of Caterpillar) shall fail to observe or perform any term, covenant or
condition on its part to be observed or performed under any agreement or
instrument relating to any such Debt which is outstanding in a principal amount
of at least $50,000,000 in the aggregate, in the case of Caterpillar, or
$35,000,000 in the aggregate, in the case of each of CFSC and CFC (but
excluding, in each case, Debt consisting of such Borrowerβs obligations
hereunder (including the Japan Local Currency Addendum, if applicable) or under
the Five-Year Credit Agreements), when required to be observed or performed, and
such failure shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such failure is to accelerate,
or permit the acceleration of, the maturity of such Debt or such Debt has been
accelerated and such acceleration has not been rescinded, or
Β
Β Β Β Β (iii)Β Β Β Β any amount of Debt
in excess of $50,000,000 in the aggregate, in the case of Caterpillar, or
$35,000,000 in the aggregate, in the case of each of CFSC and CFC, shall be
required to be prepaid, defeased, purchased or otherwise acquired by such
Borrower or any Subsidiary of such Borrower (other than CFSC and its
Subsidiaries in the case of Caterpillar), other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, or
Β
Β Β Β Β (iv)Β Β Β Β any βEvent of
Defaultβ shall occur with respect to such Borrower under either of the Five-Year
Credit Agreements, or
Β
Β Β Β Β (v)Β Β Β Β in the case of CFC,
any CFSC Event of Default shall occur, or the CFSC Guaranty shall be terminated,
revoked, or declared void, voidable, invalid or unenforceable; or
Β
(e)Β Β Β Β Such Borrower or
any of its Subsidiaries (other than CFSC and its Subsidiaries in the case of
Caterpillar) shall generally not pay its debts as such debts become due, or an
officer or other authorized representative of such Borrower or Subsidiary shall
admit in writing such Borrowerβs or Subsidiaryβs inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by such Borrower or any of its Subsidiaries
(other than CFSC and its Subsidiaries in the case of Caterpillar) seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property; or any such proceeding shall be
instituted against such Borrower or any of its Subsidiaries (other than CFSC and
its Subsidiaries in the case of Caterpillar) and either an order for relief
against such Borrower or Subsidiary is entered in such proceeding or such
proceeding is not dismissed within forty-five (45) days; or such Borrower or any
of its Subsidiaries (other than CFSC and its Subsidiaries in the case of
Caterpillar) shall take any corporate action to authorize any of the actions set
forth above in this subsection (e);
Β
provided, however, that the
filing of one or more of the proceedings and/or the occurrence of one or more of
the other events described in this Section 6.01(e) with respect to Elektrocieplownia Starachowice
Sp. z o.o.,
Przedsiebiorstwo Energetyki Cieplnej βXxxxxβ Sp. z o.o., Necoles Investments, B.V. or Caterpillar
Power Ventures Europe, B.V. shall not constitute an Event of Default;
or
Β
(f)Β Β Β Β Any judgment or
order for the payment of money in excess of (i) $100,000,000 in the case of
Caterpillar, or (ii) $25,000,000 in the case of each of CFSC and CFC, shall be
rendered against such Borrower or any of its Subsidiaries (other than CFSC and
its Subsidiaries in the case of Caterpillar) and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
Β
(g)Β Β Β Β (i) A Plan of such
Borrower shall fail to maintain the minimum funding standard required by Section
412 of the Code for any plan year or a waiver of such standard is sought or
granted under Section 412(d), or (ii) an ERISA Termination Event shall have
occurred with respect to such Borrower or such Borrower or an ERISA Affiliate
has incurred or is likely to incur a liability to or on account of a Plan under
Section 4062, 4063, 4064, 4201 or 4204 of ERISA, or (iii) such Borrower or an
ERISA Affiliate shall engage in any prohibited transaction described in Sections
406 of ERISA or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the
Department of Labor, or (iv) such Borrower or an ERISA Affiliate shall fail to
pay any required installment or any other payment required under Section 412 of
the Code on or before the due date for such installment or other payment, or (v)
such Borrower or an ERISA Affiliate shall fail to make any contribution or
payment to any Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA)
which such Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan or any law pertaining thereto, and
there shall result from any such event or events either a liability or a
material risk of incurring a liability to the PBGC or a Plan, which will have a
material adverse effect upon the business, financial condition or results of
operations of such Borrower and its Subsidiaries, taken as a whole;
Β
(h)Β Β Β Β With respect to
CFSC or CFC, a Change of Control shall occur; or
Β
(i)Β Β Β Β With respect to
CFSC or CFC, the Support Agreement shall for any reason fail to be in full force
and effect, or any action shall be taken by any Borrower to discontinue or to
assert the invalidity or unenforceability of the Support Agreement, or CFSC or
Caterpillar shall fail to comply with any of the terms or provisions of the
Support Agreement;
Β
then, and in any
such event, (i) the Agent (x) shall at the request, or may with the consent, of
the Majority Banks, by notice to such Borrower, declare the obligation of each
Bank to make Advances to such Borrower to be terminated, whereupon the same
shall forthwith terminate, and (y) shall at the request, or may with the
consent, of the Majority Banks, by notice to such Borrower, declare the Advances
to such Borrower, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon such Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by such Borrower; and (ii) in the case of a CFSC
Event of Default or a CFC Event of Default, the Japan Local Currency Agent, (x)
shall at the request, or may with the consent, of the Majority Japan Local
Currency Banks, by notice to CFC, declare the obligation of each Japan Local
Currency Bank to make Japan Local Currency Advances to CFC to be terminated,
whereupon the same shall forthwith terminate, and (y) shall at the request, or
may with the consent, of the Majority Japan Local Currency Banks, by notice to
CFC, declare the Japan Local Currency Advances to CFC, all interest thereon and
all other amounts payable under this Agreement and the Japan Local Currency
Addendum to be forthwith due and payable, whereupon such Japan Local Currency
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by CFC; provided, however, upon the
occurrence of any Event of Default with respect to a Borrower described in Section 6.01(e), (A)
the obligation of each Bank to make Advances to such Borrower shall
automatically be terminated and (B) the Advances to such Borrower, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by such Borrower.Β Β Notwithstanding anything in
the foregoing to the contrary, the fact that an Event of Default exists with
respect to one of the Borrowers hereunder shall not of itself constitute an
Event of Default with respect to any of the other Borrowers, provided, however, that in the
case of CFC, any CFSC Event of Default shall be a CFC Event of
Default.
Β
Β
AGENCY
Β
SECTION
7.01.Β Appointment
and Authority.Β Β Each Bank hereby appoints Citibank to
act on its behalf as the Agent hereunder and authorizes the Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.Β Β The provisions of this Article VII are solely for
the benefit of the Agent and the Banks, and no Borrower shall have any rights as
a third party beneficiary of any of such provisions.
Β
SECTION
7.02.Β Agent
Individually.Β Β
Β
(a)Β Β Β Β The Person serving as
the Agent hereunder shall have the same rights and powers in its capacity as a
Bank as any other Bank and may exercise the same as though it were not the
Agent; and the term βBankβ or βBanksβ shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving
as the Agent hereunder in its individual capacity.Β Β Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrowers or any Subsidiary or other Affiliate thereof as
if such Person were not the Agent hereunder and without any duty to account
therefor to the Banks.
Β
(b)Β Β Β Β Each Bank understands
that the Person serving as Agent, acting in its individual capacity, and its
Affiliates (collectively, the βAgentβs Groupβ) are
engaged in a wide range of financial services and businesses (including
investment management, financing, securities trading, corporate and investment
banking and research) (such services and businesses are collectively referred to
in this Section 7.02 as βActivitiesβ) and may
engage in the Activities with or on behalf of one or more of the Borrowers or
their respective Affiliates.Β Β Furthermore, the Agentβs Group may, in
undertaking the Activities, engage in trading in financial products or undertake
other investment businesses for its own account or on behalf of others
(including the Borrowers and their Affiliates and including holding, for its own
account or on behalf of others, equity, debt and similar positions in the
Borrowers or their respective Affiliates), including trading in or holding long,
short or derivative positions in securities, loans or other financial products
of one or more of the Borrowers or their Affiliates.Β Β Each Bank
understands and agrees that in engaging in the Activities, the Agentβs Group may
receive or otherwise obtain information concerning the Borrowers or their
Affiliates (including information concerning the ability of the Borrowers to
perform their respective obligations hereunder and under the Japan Local
Currency Addendum, if applicable) which information may not be available to any
of the Banks that are not members of the Agentβs Group.Β Β None of the
Agent nor any member of the Agentβs Group shall have any duty to disclose to any
Bank or use on behalf of the Banks, and shall not be liable for the failure to
so disclose or use, any information whatsoever about or derived from the
Activities or otherwise (including any information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any Borrower or any Affiliate of any Borrower) or to account
for any revenue or profits obtained in connection with the Activities, except
that the Agent shall deliver or otherwise make available to each Bank such
documents as are expressly required by this Agreement or the Japan Local
Currency Addendum to be transmitted by the Agent to the Banks.
Β
(c)Β Β Β Β Each Bank further
understands that there may be situations where members of the Agentβs Group or
their respective customers (including the Borrowers and their Affiliates) either
now have or may in the future have interests or take actions that may conflict
with the interests of any one or more of the Banks (including the interests of
the Banks hereunder and under the Japan Local Currency
Addendum).Β Β Each Bank agrees that no member of the Agentβs Group is or
shall be required to restrict its activities as a result of the Person serving
as Agent being a member of the Agentβs Group, and that each member of the
Agentβs Group may undertake any Activities without further consultation with or
notification to any Bank.Β Β None of (i) this Agreement, the Notes or
the Japan Local Currency Addendum, (ii) the receipt by the Agentβs Group of
information (including the Information Memorandum) concerning the Borrowers or
their Affiliates (including information concerning the ability of the Borrowers
to perform their respective obligations hereunder and under the Japan Local
Currency Addendum, if applicable) nor (iii) any other matter shall give rise to
any fiduciary, equitable or contractual duties (including without limitation any
duty of trust or confidence) owing by the Agent or any member of the Agentβs
Group to any Bank including any such duty that would prevent or restrict the
Agentβs Group from acting on behalf of customers (including the Borrowers or
their Affiliates) or for its own account.
Β
SECTION
7.03.Β Duties of
Agent; Exculpatory Provisions.Β Β
Β
(a)Β Β Β Β The Agentβs duties
hereunder and the Japan Local Currency Agentβs duties under the Japan Local
Currency Addendum are solely ministerial and administrative in nature and
neither the Agent nor the Japan Local Currency Agent shall have any duties or
obligations except those expressly set forth herein or in the Japan Local
Currency Addendum.Β Β Without limiting the generality of the foregoing,
neither the Agent nor the Japan Local Currency Agent shall have any duty to take
any discretionary action or exercise any discretionary powers, but shall be
required to act or refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the written direction of the Majority
Banks or the Majority Japan Local Currency Banks, as applicable (or such other
number or percentage of the Banks as shall be expressly provided for herein or
in the Japan Local Currency Addendum, as applicable), provided that neither
the Agent nor the Japan Local Currency Agent shall be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Agent,
the Japan Local Currency Agent or any of their respective Affiliates to
liability or that is contrary to this Agreement, the Japan Local Currency
Addendum or applicable law.
Β
(b)Β Β Β Β Neither the Agent nor
the Japan Local Currency Agent shall be liable for any action taken or not taken
by it (i)Β with the consent or at the request of the Majority Banks or the
Majority Japan Local Currency Banks, as applicable (or as the Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Section 8.01 and 6.01) or (ii)Β in the absence of its own gross negligence
or willful misconduct.Β Β The Agent shall be deemed not to have
knowledge of any Event of Default or the event or events that give or may give
rise to any Event of Default unless and until the Borrowers or any Bank shall
have given notice to the Agent describing such Event of Default and such event
or events.
Β
(c)Β Β Β Β None of the Agent,
any member of the Agentβs Group or the Japan Local Currency Agent shall be
responsible for or have any duty to ascertain or inquire into (i)Β any
statement, warranty, representation or other information made or supplied in or
in connection with this Agreement, the Information Memorandum or the Japan Local
Currency Addendum, (ii)Β the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith or the adequacy, accuracy and/or completeness of the information
contained therein, (iii)Β the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Event of Default or unmatured Event of Default,
(iv)Β the validity, enforceability, effectiveness or genuineness of this
Agreement, the Notes, the Japan Local Currency Addendum or any other agreement,
instrument or document or (v)Β the satisfaction of any condition set forth
in ArticleΒ III or elsewhere herein, other than (but subject to the
foregoing clause (ii)) to confirm receipt of items expressly required to be
delivered to the Agent.
Β
(d)Β Β Β Β Nothing in this
Agreement or the Japan Local Currency Addendum shall require the Agent or any of
its Related Parties to carry out any βknow your customerβ or other checks in
relation to any person on behalf of any Bank and each Bank confirms to the Agent
that it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made by the
Agent or any of its Related Parties.
Β
SECTION
7.04.Β Reliance
by Agent.Β Β Each of the Agent and the Japan Local
Currency Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper
Person.Β Β Each of the Agent and the Japan Local Currency Agent also may
rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper Person, and shall not incur any liability for
relying thereon.Β Β In determining compliance with any condition
hereunder to the making of an Advance that by its terms must be fulfilled to the
satisfaction of a Bank or the Japan Local Currency Bank, the
Agent and the Japan Local Currency Agent may presume that such condition is
satisfactory to such Bank or the Japan Local Currency Bank, as
applicable unless an officer of the Agent or the Japan Local Currency
Agent, as applicable, responsible for the transactions contemplated hereby shall
have received notice to the contrary from such Bank or such Japan Local Currency Bank, as
applicable prior to the making of such Advance, and in the case of a
Borrowing, such Bank or such Japan
Local Currency Bank, as applicable, shall not have made available to the
Agent or the Japan Local Currency Agent, as applicable, such Bankβs or such
Japan Local Currency Bankβs, as
applicable, ratable portion of such Borrowing.Β Β The Agent and
the Japan Local Currency Agent may consult with legal counsel (who may be
counsel for the Borrowers), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or
experts.
Β
SECTION
7.05.Β Delegation
of Duties.Β Β The Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under the Japan Local
Currency Addendum by or through any one or more sub-agents appointed by the
Agent.Β Β The Agent and any such sub-agent may perform any and all of
its duties and exercise its rights and powers by or through their respective
Related Parties.Β Β Each such sub-agent and the Related Parties of the
Agent and each such sub-agent shall be entitled to the benefits of all
provisions of this Article VII and Section 8.04 (as though such sub-agents were
the βAgentβ hereunder or under the Japan Local currency Addendum) as if set
forth in full herein with respect thereto.
Β
SECTION
7.06.Β Resignation
of Agent.Β Β The Agent may at any time give notice of its
resignation to the Banks and the Borrowers.Β Β Upon receipt of any such
notice of resignation, the Majority Banks shall have the right, in consultation
with the Borrowers, to appoint a successor, which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank with an office in New
York, New York.Β Β If no such successor shall have been so appointed by
the Majority Banks and shall have accepted such appointment within 60Β days
after the retiring Agent gives notice of its resignation (such 60-day period,
the βBank Appointment
Periodβ), then the retiring Agent may on behalf of the Banks, appoint a
successor Agent meeting the qualifications set forth above.Β Β In
addition and without any obligation on the part of the retiring Agent to
appoint, on behalf of the Banks, a successor Agent, the retiring Agent may at
any time upon or after the end of the Bank Appointment Period notify the
Borrowers and the Banks that no qualifying Person has accepted appointment as
successor Agent and the effective date of such retiring Agentβs resignation
which effective date shall be no earlier than three business days after the date
of such notice.Β Β Upon the resignation effective date established in
such notice and regardless of whether a successor Agent has been appointed and
accepted such appointment, the retiring Agentβs resignation shall nonetheless
become effective and (i)Β the retiring Agent shall be discharged from its
duties and obligations as Agent hereunder and (ii)Β all payments,
communications and determinations provided to be made by, to or through the
Agent shall instead be made by or to each Bank directly, until such time as the
Majority Banks appoint a successor Agent as provided for above in this
paragraph.Β Β Upon the acceptance of a successorβs appointment as Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties as Agent of the retiring (or retired)
Agent, and the retiring Agent shall be discharged from all of its duties and
obligations as Agent hereunder (if not already discharged therefrom as provided
above in this paragraph).Β Β The fees payable by the Borrowers to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrowers and such successor.Β Β After the
retiring Agentβs resignation hereunder, or any retiring Japan Local Currency
Agentβs resignation or removal under the Japan Local Currency Addendum, the
provisions of this Article VII and Section 8.04 shall continue in effect for the
benefit of such retiring Agent or Japan Local Currency Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Agent was acting as Agent or the
retiring Japan Local Currency Agent was acting as Japan Local Currency
Agent.
Β
SECTION
7.07.Β Non-Reliance
on Agent and Other Banks.Β Β
Β
(a)Β Β Β Β Each Bank confirms to
the Agent, the Japan Local Currency Agent, each other Bank and each of their
respective Related Parties that it (i) possesses (individually or through its
Related Parties) such knowledge and experience in financial and business matters
that it is capable, without reliance on the Agent, the Japan Local Currency
Agent, any other Bank or any of their respective Related Parties, of evaluating
the merits and risks (including tax, legal, regulatory, credit, accounting and
other financial matters) of (x) entering into this Agreement, (y) making
Advances and other extensions of credit hereunder and (z) in taking or not
taking actions hereunder and thereunder, (ii) is financially able to bear such
risks and (iii) has determined that entering into this Agreement and making
Advances and other extensions of credit hereunder is suitable and appropriate
for it.
Β
(b)Β Β Β Β Each Bank
acknowledges that (i) it is solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with
this Agreement and, to the extent such Bank is a party thereto, the Japan Local
Currency Addendum, (ii) that it has, independently and without reliance upon the
Agent, the Japan Local Currency Agent, any other Bank or any of their respective
Related Parties, made its own appraisal and investigation of all risks
associated with, and its own credit analysis and decision to enter into, this
Agreement and, to the extent such Bank is a party thereto, the Japan Local
Currency Addendum, based on such documents and information, as it has deemed
appropriate and (iii) it will, independently and without reliance upon the
Agent, the Japan Local Currency Agent, any other Bank or any of their respective
Related Parties, continue to be solely responsible for making its own appraisal
and investigation of all risks arising under or in connection with, and its own
credit analysis and decision to take or not take action under, this Agreement
and, to the extent such Bank is a party thereto, the Japan Local Currency
Addendum, based on such documents and information as it shall from time to time
deem appropriate, which may include, in each case:
Β
Β Β Β Β (A)Β Β Β Β the financial
condition, status and capitalization of each Borrower;
Β
Β Β Β Β (B)Β Β Β Β the legality,
validity, effectiveness, adequacy or enforceability of this Agreement, the Notes
(with respect to any Bank that has requested a Note), the Japan Local Currency
Addendum (with respect to any Bank party thereto) and any other agreement,
arrangement or document entered into, made or executed in anticipation of, under
or in connection herewith or therewith;
Β
Β Β Β Β (C)Β Β Β Β determining
compliance or non-compliance with any condition hereunder to the making of an
Advance hereunder and, to the extent such Bank is a party thereto, under the
Japan Local Currency Addendum, and the form and substance of all evidence
delivered in connection with establishing the satisfaction of each such
condition subject to confirmation by the Agent of its receipt of items requested
to be delivered as conditions to lending pursuant to Sections 3.01 and 3.02
hereof;
Β
Β Β Β Β (D)Β Β Β Β adequacy, accuracy
and/or completeness of the Information Memorandum and any other information
delivered by the Agent, any other Bank or by any of their respective Related
Parties under or in connection with this Agreement, the transactions
contemplated hereby and thereby or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection
herewith or therewith.
Β
SECTION
7.08.Β No Other
Duties, etc.Β Β Anything herein to the contrary
notwithstanding, none of the Persons acting as Bookrunners or Arrangers listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement, except in its capacity, as applicable, as the Agent or as a Bank
hereunder.
Β
SECTION
7.09.Β Indemnification.Β Β The
Banks agree to indemnify the Agent and the Japan Local Currency Agent (to the
extent not reimbursed by the Borrowers), ratably according to the respective
principal amounts of the Revolving Credit Advances, Japan Local Currency
Advances, or Term Loan Advances, as applicable, then held by each of them (or if
no Revolving Credit Advances or Japan Local Currency Advances are at the time
outstanding, ratably according to the respective amounts of their Commitments or
Japan Local Currency Commitments, as applicable), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent or the Japan Local
Currency Agent in any way relating to or arising out of this Agreement or the
Japan Local Currency Addendum or any action taken or omitted by the Agent or the
Japan Local Currency Agent under this Agreement or the Japan Local Currency
Addendum; provided that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agentβs or the Japan Local Currency Agentβs gross negligence
or willful misconduct.Β Β Without limitation of the foregoing, each Bank
agrees to reimburse the Agent and the Japan Local Currency Agent promptly upon
demand for its ratable share (determined as specified in the first sentence of
this Section
7.09) of any out-of-pocket expenses (including reasonable counsel fees)
incurred by the Agent or the Japan Local Currency Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiation, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement or
the Japan Local Currency Addendum, to the extent that the Agent or the Japan
Local Currency Agent is not reimbursed for such expenses by the
Borrowers.
Β
Β
MISCELLANEOUS
Β
SECTION
8.01.Β Amendments,
Etc.Β Β No amendment or waiver of any provision of this
Agreement, the Japan Local Currency Addendum or the Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Borrowers and the Majority Banks or
the Majority Japan Local Currency Banks, as the case may be, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following:Β Β (a) waive any of the conditions
specified in Section
3.01, 3.02, or 3.03 (if and to the
extent that the Borrowing which is the subject of such waiver would involve an
increase in the aggregate outstanding amount of Advances over the aggregate
amount of Advances outstanding immediately prior to such Borrowing), (b)
increase the Commitments of the Banks (other than pursuant to Section 2.05(c)),
increase the Japan Local Currency Commitments, or subject the Banks to any
additional obligations, (c) reduce or forgive the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, (d) postpone any
date fixed for any payment of principal of, or interest on, the Advances or any
fees or other amounts payable hereunder, (e) change the definition of βMajority
Banksβ or βMajority Japan Local Currency Banks,β or the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances, or the
number of Banks, which shall be required for the Banks, or any of them, to take
any action hereunder or under the Japan Local Currency Addendum, or the
percentage of the Japan Local Currency Commitments or the aggregate unpaid Japan
Local Currency Advances, or the number of Japan Local Currency Banks, which
shall be required for the Japan Local Currency Banks, or any of them, to take
any action hereunder or under the Japan Local Currency Addendum, (f) amend,
modify, or otherwise release CFSC from its obligations under, Article IX hereof or
(g) amend this Section
8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent or
the Japan Local Currency Agent, as applicable, in addition to the Borrower and
the Banks required above to take such action, affect the rights or duties of the
Agent or the Japan Local Currency Agent, as applicable, under this Agreement,
the Japan Local Currency Addendum or any Note.
Β
SECTION
8.02.Β Notices;
Communications, Etc.
Β
(a)Β Β Β Β All notices,
demands, requests, consents and other Communications provided for in this
Agreement shall be given in writing, or by any telecommunication device capable
of creating a written record (including electronic mail, except with respect to
(x) service of process to any party or (y) communications to any Bank that has
previously notified the Agent and the Borrowers that electronic mail is not an
acceptable delivery method), and addressed to the party to be notified as
follows:
Β
Β Β Β Β (i)Β Β Β Β if to
Caterpillar
Β
Β Β Β Β Β Β Β Β Β Β Β Β Caterpillar
Inc.
Β Β Β Β Β Β Β Β Β Β Β Β 000 X.X. Xxxxx
Xxxxxx
Β Β Β Β Β Β Β Β Β Β Β Β Xxxxxx, Xxxxxxxx
00000-0000
Β Β Β Β Β Β Β Β Β Β Β Β Attention of: Manager
- Corporate Finance Services
Β Β Β Β Β Β Β Β Β Β Β Β Telecopier No.:
000-000-0000
Β Β Β Β Β Β Β Β Β Β Β Β E-Mail
Address:Β Β XxXxxxxx_X_Xxxx@xxx.xxx
Β Β Β Β (ii)Β Β Β Β if to CFSC or
CFC
Β
Β Β Β Β Β Β Β Β Β Β Β Β Caterpillar Financial
Services Corporation
Β Β Β Β Β Β Β Β Β Β Β Β 0000 Xxxx Xxx
Xxxxxx
Β Β Β Β Β Β Β Β Β Β Β Β Xxxxxxxxx, Xxxxxxxxx
00000-0000
Β Β Β Β Β Β Β Β Β Β Β Β Attention of:
Treasurer
Β Β Β Β Β Β Β Β Β Β Β Β Telecopier No.:
000-000-0000
Β Β Β Β Β Β Β Β Β Β Β Β E-Mail
Address:Β Β Xxxxx.Xxxxxxxx@xxx.xxx
Β Β Β Β (iii)Β Β Β Β if to the
Agent
Β
Β Β Β Β Β Β Β Β Β Β Β Β Citibank,
N.A.
Β Β Β Β Β Β Β Β Β Β Β Β Bank Loan
Syndications
Β Β Β Β Β Β Β Β Β Β Β Β 0000 Xxxxx
Xx.
Β Β Β Β Β Β Β Β Β Β Β Β Xxx Xxxxxx, Xxxxxxxx
00000
Β Β Β Β Β Β Β Β Β Β Β Β Attention of: Bank
Loan Syndications
Β Β Β Β Β Β Β Β Β Β Β Β Telecopier No.:
000-000-0000
Β Β Β Β Β Β Β Β Β Β Β Β E-Mail Address: Xxxx
Xxxxxx
Β Β Β Β Β Β Β Β Β Β Β Β with a copy
to
Β Β Β Β Β Β Β Β Β Β Β Β Citicorp North
America, Inc.
Β Β Β Β Β Β Β Β Β Β Β Β 000 Xxxxx Xxxxxx
Xxxxx
Β Β Β Β Β Β Β Β Β Β Β Β Xxxxxxx, Xxxxxxxx
00000
Β Β Β Β Β Β Β Β Β Β Β Β Attention
of:Β Β Xxxxxxxx XβXxxxxxx
Β Β Β Β Β Β Β Β Β Β Β Β Telecopier No.:
312-281-9155
Β Β Β Β Β Β Β Β Β Β Β Β E-Mail Address:
xxxxxxxx.xxxxxxxx@xxxx.xxx
Β Β Β Β (iv)Β Β Β Β if to any other
Bank, to its address (or telecopier number or e-mail address) set forth in its
Administrative Questionnaire;
Β
or at such other
address as shall be notified in writing (x)Β in the case of the Borrowers or
the Agent, to the other parties and (y)Β in the case of all other parties,
to the Borrowers and the Agent.
Β
(b)Β Β Β Β Except as otherwise
provided in this Agreement, all notices, demands, requests, consents and other
Communications described in clauseΒ (a) shall be effective (i)Β if
delivered by hand, including any overnight courier service, upon personal
delivery, (ii)Β if delivered by mail, when received by the intended
recipient, (iii)Β if delivered by posting to an Approved Electronic
Platform, an Internet website or a similar telecommunication device requiring
that a user have prior access to such Approved Electronic Platform, website or
other device (to the extent permitted by this Section 8.02Β to be delivered
thereunder), when such notice, demand, request, consent and other communication
shall have been made generally available on such Approved Electronic Platform,
Internet website or similar device to the class of Person being notified
(regardless of whether any such Person must accomplish, and whether or not any
such Person shall have accomplished, any action prior to obtaining access to
such items, including registration, disclosure of contact information,
compliance with a standard user agreement or undertaking a duty of
confidentiality) and such Person has been notified in respect of such posting
that a communication has been posted to the Approved Electronic PlatformΒ and (iv)Β if delivered
by electronic mail or any other telecommunications device, when received by the
intended recipient; provided, however,
that notices and communications to the Agent pursuant to Article II or Article
VII shall not be effective until received by the Agent.Β Β If any
notice, demand, request or other communication related to an Event of Default
(including, without limitation, any notice of a failure to make a required
payment), is delivered by the Agent or any Bank to the Borrower by electronic
mail or any other telecommunications device, the Agent or such Bank, as
applicable, shall promptly deliver a duplicate copy of such notice, demand,
request or other communication to the Borrower by hand (including by overnight
courier service) or by mail.
Β
(c)Β Β Β Β Notwithstanding
clausesΒ (a) and (b) (unless the Agent and the Borrowers agree that the
provisions of clauseΒ (a) and (b) be followed) and any other provision in
this Agreement providing for the delivery of any Approved Electronic
Communication by any other means, the Borrowers shall deliver all Approved
Electronic Communications to the Agent by properly transmitting such Approved
Electronic Communications in an electronic/soft medium in a format reasonably
acceptable to the Agent to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or
such other electronic mail address (or similar means of electronic delivery) as
the Agent may notify to the Borrowers.Β Β Nothing in this
clauseΒ (c) shall prejudice the right of the Agent or any Bank to deliver
any Communication to any Borrower in any manner authorized in this Agreement or
to request that the Borrowers effect delivery in such manner.
Β
(d)Β Β Β Β Each of the Banks
and each Borrower agree that the Agent may, but shall not be obligated to, make
the Approved Electronic Communications available to the Banks by posting such
Approved Electronic Communications on IntraLinksβ’ or a substantially similar
electronic platform chosen by the Agent to be its electronic transmission system
(the βApproved
Electronic Platformβ).
Β
(e)Β Β Β Β Although the
Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified by
the Agent from time to time (including, as of the Closing Date, a dual firewall
and a User ID/Password Authorization System) and the Approved Electronic
Platform is secured through a single-user-per-deal authorization method whereby
each user may access the Approved Electronic Platform only on a deal-by-deal
basis, each of the Banks and each Borrower acknowledges and agrees that the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution.Β Β In consideration for the convenience and other benefits
afforded by such distribution and for the other consideration provided
hereunder, the receipt and sufficiency of which is hereby acknowledged, each of
the Banks and each Borrower hereby approves distribution of the Approved
Electronic Communications through the Approved Electronic Platform and, subject
to subsection (f) below, understands and assumes the risks of such
distribution.
Β
(f)Β Β Β Β THE APPROVED
ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED βAS
ISβ AND βAS AVAILABLEβ.Β Β NONE OF THE AGENT NOR ANY OTHER MEMBER OF THE
AGENTβS GROUP WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED
ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY
DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC
COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM, EXCEPT FOR ERRORS OR
OMISSIONS RESULTING FROM AGENTβS OR AGENT GROUPβS GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT.Β Β NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN
CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.
Β
(g)Β Β Β Β Each of the Banks
and each Borrower agree that the Agent may, but (except as may be required by
applicable law) shall not be obligated to, store the Approved Electronic
Communications on the Approved Electronic Platform in accordance with the
Agentβs generally-applicable document retention procedures and
policies.
Β
SECTION
8.03.Β No
Waiver; Remedies.Β Β No failure on the part of any party
hereto to exercise, and no delay in exercising, any right hereunder, under the
Japan Local Currency Addendum or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right.Β Β The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
Β
SECTION
8.04.Β Costs,
Expenses and Taxes.Β Β
Β
(a)Β Β Β Β Caterpillar agrees to
pay on written demand all reasonable costs and expenses of the Agent and the
Japan Local Currency Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
Japan Local Currency Addendum, the Notes and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Agent and the Japan Local Currency Agent with
respect thereto and with respect to advising the Agent and the Japan Local
Currency Agent as to their rights and responsibilities under this Agreement and
the Japan Local Currency Addendum.Β Β The Borrowers agree to pay all
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses of the Banks), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement, the
Japan Local Currency Addendum, the Notes and the other documents to be delivered
hereunder.Β Β If any such costs or expenses are attributable to a
particular Borrower, such costs or expenses shall be paid by such
Borrower.Β Β In all other cases, such costs or expenses shall be paid by
Caterpillar.
Β
(b)Β Β Β Β If any payment of
principal of any Eurocurrency Rate Advance or a TIBO Rate Advance is made other
than on the last day of the Interest Period for such Advance, as a result of a
payment pursuant to Section 2.09 or
acceleration of the maturity of the Advances pursuant to Section 6.01 or for
any other reason, or if the Banks receive payments from an Added Bank in
connection with the purchase of a participation in Eurocurrency Rate Advances by
such Added Bank pursuant to Section 2.05(d), the
applicable Borrower shall, upon demand by any Bank (with a copy of such demand
to the Agent), pay to the Agent for the account of such Bank any amounts as such
Bank shall reasonably determine in good faith to be required to compensate such
Bank for any additional losses, costs or expenses which it may reasonably incur
as a result of such payment.Β Β Such indemnification shall include,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Bank to
fund or maintain such Advance; provided, however, that any
indemnification for such losses, costs and expenses shall be limited to an
amount equal to (i) the principal amount of the Advance paid by such Borrower or
the amount of the participation purchased by such Added Bank, as the case may
be, times (ii)
the number of days remaining in the Interest Period applicable to such Advance,
divided by 360, times (iii) the
interest differential between the interest rate applicable to such Advance and
the rate of interest which would apply on an Advance to such Borrower of the
same Type requested on the date of such payment by such Borrower for an Interest
Period which most nearly approximates the remaining term of the Interest Period
applicable to the Advance paid by such Borrower.Β Β A certificate
describing in reasonable detail the amount of such losses, costs and expenses,
and specifying therein the Type of loan in reference to which such Bank shall
have made its calculations thereof (the βReference
Investmentβ), submitted to such Borrower and the Agent by such Bank,
shall create a rebuttable presumption of the rate applicable to the Reference
Investment identified therein.Β Β In making any determination under this
Section
8.04(b), each Bank shall use reasonable efforts to minimize the amount
payable by such Borrower hereunder to such Bank, provided that such
action does not result in any additional cost, loss or expense for such Bank and
is not otherwise disadvantageous to such Bank.
Β
(c)Β Β Β Β The Borrowers
severally agree to indemnify and hold harmless each of the Agent, the Japan
Local Currency Agent, each Bank, each Japan Local Currency Bank, and each of
their directors, officers and employees from and against any and all claims,
damages, liabilities and expenses (including, without limitation, reasonable
fees and disbursements of outside counsel and reasonable allocated costs and
expenses of in-house counsel) which may be incurred by or asserted against the
Agent, the Japan Local Currency Agent, such Bank or such Japan Local Currency
Bank, or any such director, officer or employee in connection with or arising
out of any investigation, litigation, or proceeding (i)Β related to any
transaction or proposed transaction (whether or not consummated) in which any
proceeds of any Borrowing are applied or proposed to be applied, directly or
indirectly, by such Borrower, whether or not the Agent, the Japan Local Currency
Agent, such Bank or such Japan Local Currency Bank, or any such director,
officer or employee is a party to such transactions or (ii)Β related to such
Borrowerβs entering into this Agreement or the Japan Local Currency Addendum, or
to any actions or omissions of such Borrower, any of its Subsidiaries or
Affiliates or any of its or their respective officers, directors or employees in
connection therewith.Β Β If any such claims, damages, liabilities and
expenses are attributable to a particular Borrower, such indemnity shall be
provided by such Borrower.Β Β In all other cases, such indemnity shall
be provided by Caterpillar.Β Β No Borrower shall be required to
indemnify any such indemnified Person from or against any portion of such
claims, damages, liabilities or expenses (x) arising out of the gross negligence
or willful misconduct of such indemnified Person or (y) that result from the
violation by such indemnified Person of any law, regulation, ordinance, or
judicial or governmental agency order.
Β
SECTION
8.05.Β Right of
Set-off.Β Β Upon (i) the occurrence and during the
continuance of any Event of Default with respect to a Borrower and (ii) the
making of the request or the granting of the consent specified by Section 6.01 to
authorize the Agent to declare the Advances to such Borrower due and payable
pursuant to the provisions of Section 6.01, each
Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of such Borrower against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement, the Japan Local Currency Addendum, and
any Note of such Borrower held by such Bank, irrespective of whether or not such
Bank shall have made any demand under this Agreement, the Japan Local Currency
Addendum, or such Note and although such obligations may be
unmatured.Β Β Each Bank agrees to immediately notify such Borrower by
telecopy after any such set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.Β Β The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.
Β
SECTION
8.06.Β Binding
Effect.Β Β This Agreement shall be deemed to have become
effective as of September 18, 2008 when it shall have been executed by the
Borrowers, the Japan Local Currency Agent, and the Agent and when the Agent
shall have been notified by each Bank that such Bank has executed it and
thereafter this Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Agent, the Japan Local Currency Agent, and each Bank and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of all the Banks.
Β
SECTION
8.07.Β Assignments
and Participations.
Β
(a)Β Β Β Β (i)Β Β Β Β Each Bank may, upon
not less than one (1) Business Day prior notice to the Agent, assign to one or
more of such Bankβs Affiliates or to one or more other Banks (or to any
Affiliate of such Bank) all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, Revolving Credit Commitment, its Japan Local Currency Commitment, if
applicable, the Advances owing to it and any Note or Notes held by it); provided, however, that (A)
each such assignment shall be of a constant, and not a varying, percentage of
all of the assigning Bankβs rights and obligations under this Agreement, and
shall be in an amount not less than the lesser of (x) $5,000,000 and (y) the
remaining amount of the assigning Bankβs Commitment (calculated as at the date
of such assignment) or outstanding Advances (if such Bankβs Commitment has been
terminated), (B) no such assignment shall result in any Bank having a Commitment
which is more than 20% of the Total Commitment, (C) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance (but not
consent), an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,500, and (D) no
such assignment shall be made to any Borrower or any of such Borrowerβs
Affiliates or Subsidiaries.
Β
Β Β Β Β (ii)Β Β Β Β In addition, each
Bank may, upon not less than one (1) Business Day prior notice to the Agent and
with the prior written consent of Caterpillar and CFSC (which consent shall not
be unreasonably withheld or delayed), provided that no
consent of Caterpillar or CFSC shall be required in connection with any
assignment to an Eligible Financial Institution if an Event of Default has
occurred and is continuing, assign to one or more banks (other than Banks and
their Affiliates, assignments to which shall be governed by Section 8.07(a)(i)
above) or other entities all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, Revolving Credit Commitment, its Japan Local Currency Commitment, if
applicable, the Advances owing to it and the Note or Notes, if any, held by it);
provided further, that (A)
each such assignment shall be of a constant, and not a varying, percentage of
all of the assigning Bankβs rights and obligations under this Agreement, and
shall be in an amount not less than the lesser of (x) $5,000,000 and (y) the
remaining amount of the assigning Bankβs Commitment (calculated as at the date
of such assignment) or outstanding Advances (if such Bankβs Commitment has been
terminated), (B) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance (but not consent), an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,500, and (C) no such assignment shall be
made to any Borrower or any of such Borrowerβs Affiliates or
Subsidiaries.
Β
Β Β Β Β (iii)Β Β Β Β Upon such execution,
delivery and acceptance of any such Assignment and Acceptance, from and after
the effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall, in addition to the rights and obligations hereunder held by it
immediately prior to such effective date (if any), have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and (y) the Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement and the Japan Local Currency Addendum, if
applicable (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bankβs rights and obligations under this
Agreement and the Japan Local Currency Addendum, if applicable, such Bank shall
cease to be a party hereto and thereto).
Β
(b)Β Β Β Β By executing and
delivering an Assignment and Acceptance, the Bank assignor thereunder and the
assignee thereunder confirm to and agree with each other and the other parties
hereto as follows:Β Β (i) other than as provided in such Assignment and
Acceptance, such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the Japan Local Currency
Addendum or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Japan Local Currency Addendum, or
any other instrument or document furnished pursuant hereto or thereto; and (ii)
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto.
Β
(c)Β Β Β Β The Agent, acting
solely for this purpose as an agent of the Borrowers, shall maintain at its
address referred to in Section 8.02 a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments of, and
principal amounts of the Advances owing to, each Bank pursuant to the terms
hereof from time to time (the βRegisterβ).Β Β The
entries in the Register shall be prima facie evidence of such
matters, and the Borrowers, the Agent, the Japan Local Currency Agent and the
Banks may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.Β Β The Register shall be
available for inspection by the Borrowers or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
Β
(d)Β Β Β Β Upon its receipt of
an Assignment and Acceptance executed by an assigning Bank and an assignee,
together with the Notes, if any, subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit
C-1 hereto, (i) accept such Assignment and Acceptance, and (ii) give
prompt notice thereof to the Borrowers.Β Β Within five (5) Business Days
after its receipt of such notice, each Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for any surrendered Note of such
Borrower a new Note, if requested, to the order of such assignee and, if the
assigning Bank has retained a Commitment hereunder and requested a new Note, a
new Note of such Borrower to the order of the assigning Bank.Β Β Such
new Note or Notes, if requested, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A
hereto.
Β
(e)Β Β Β Β Each Bank may sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, Revolving Credit Commitment,
Japan Local Currency Commitment, if applicable, the Advances owing to it and the
Notes, if any, held by it); provided, however, that (i)
such Bankβs obligations under this Agreement (including, without limitation, its
Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Bank
shall remain solely responsible to the Borrowers, the other Banks and the Agent
for the performance of such obligations, (iii) such Bank shall remain the holder
of any such Notes for all purposes of this Agreement, and (iv) the Borrowers,
the Agent and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bankβs rights and obligations under this
Agreement.
Β
(f)Β Β Β Β Notwithstanding the
foregoing, any Bank may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, rights to payments of principal of and/or interest on the Advances)
to secure obligations of such Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, without prior notice to or consent of the
Borrowers or the Agent; provided that no such pledge or assignment shall release
such Bank from any of its obligations hereunder or substitute any such pledgee
or assignee for such Bank as a party hereto.
Β
SECTION
8.08.Β Governing
Law; Submission to Jurisdiction; Service of Process.
Β
(a)Β Β Β Β This Agreement and
the Notes shall be governed by, and construed in accordance with, the laws of
the State of New York (including Sections 5-1401 and 5-1402 of the General
Obligations Laws of the State of New York but otherwise without regard to the
conflict of law principles thereof).
Β
(b)Β Β Β Β Each of the Agent,
the Japan Local Currency Agent, each Bank, each Japan Local Currency Bank and
each Borrower hereby (i) irrevocably submits to the jurisdiction of any New York
State or United States federal court sitting in New York City (and any appellate
court hearing appeals from any such court) in any action or proceeding arising
out of or relating to this Agreement and hereby irrevocably agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or in such federal court; (ii) irrevocably waives, to the
fullest extent that it may effectively do so, the defense of an inconvenient
forum to the maintenance of any such action or proceeding; and (iii) agrees that
a final judgment in any such action or proceeding may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.Β Β Each Borrower irrevocably consents to the service of process of
any of the aforesaid courts in any such action or proceeding by the mailing or
delivery of a copy of such process to The Corporation Trust Company, as its
agent for the purpose of accepting such process, at Corporation Trust Center,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
Β
(c)Β Β Β Β Nothing in this
Section 8.08
shall affect the right of any Borrower, the Agent, the Japan Local Currency
Agent, any Bank or any Japan Local Currency Bank to serve legal process in any
other manner permitted by law or affect the right of any Borrower, the Agent,
the Japan Local Currency Agent, any Bank or any Japan Local Currency Bank to
bring any action or proceeding against any other party hereto or any property of
any other party hereto in the courts of any other jurisdictions.
Β
SECTION
8.09.Β Caterpillar
as Agent for the Borrowers.Β Β CFSC and CFC hereby appoint
Caterpillar as their agent for purposes of giving notice to or otherwise
advising the Agent or the Banks in such instances where this Agreement calls for
notice or advice from the Borrowers rather than from a specific Borrower
(Caterpillar, in such capacity, being referred to herein as the βBorrower
Agentβ).Β Β CFC hereby irrevocably waives, to the fullest possible
extent, any defense of forum non conveniens.
Β
SECTION
8.10.Β Judgment
Currency.Β Β If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due under this Agreement, under the
Japan Local Currency Addendum or under any of the Notes in any currency (the
βOriginal
Currencyβ) into another currency (the βOther Currencyβ), the
parties hereto agree, to the fullest extent permitted by law, that the rate of
exchange used shall be that at which, in accordance with normal banking
procedures, the Agent could purchase the Original Currency with the Other
Currency on the Business Day preceding that on which final judgment is
given.Β Β To the fullest extent permitted by applicable law, the
obligation of any Borrower in respect to any sum due in the Original Currency to
the Agent or any Bank shall, notwithstanding any judgment in an Other Currency,
be discharged only to the extent that on the Business Day following receipt by
the Agent or such Bank, as applicable, of any sum adjudged to be so due in the
Other Currency, the Agent or such Bank, as applicable, may in accordance with
normal banking procedures purchase the Original Currency with the Other
Currency; if the amount of the Original Currency so purchased is less than the
sum originally due to the Agent or such Bank, as applicable, in the Original
Currency, the applicable Borrower or Borrowers agree, as a separate obligation
and notwithstanding any such judgment, to indemnify the Agent or such Bank, as
applicable, against such loss, and if the amount of the Original Currency so
purchased exceeds the sum originally due the Agent or such Bank in the Original
Currency, the Agent or such Bank, as applicable, agrees to remit to the
applicable Borrower or Borrowers such excess.
Β
SECTION
8.11.Β Execution
in Counterparts.Β Β This Agreement 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.
Β
SECTION
8.12.Β Waiver of
Jury Trial.Β Β EACH BORROWER, THE AGENT, THE JAPAN LOCAL
CURRENCY AGENT, EACH BANK AND EACH JAPAN LOCAL CURRENCY BANK IRREVOCABLY WAIVE
ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, AMONG ANY OF THE PARTIES HERETO ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE JAPAN LOCAL CURRENCY ADDENDUM,
OR ANY NOTE.Β Β ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY
JURY.
Β
SECTION
8.13.Β USA
Patriot Act Notification.Β Β The following notification is
provided to the Borrowers pursuant to Section 326 of the USA Patriot
Act:
Β
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT.Β Β To help the
government of the United States of America fight the funding of terrorism and
money laundering activities, Federal law requires all financial institutions to
obtain, verify, and record information that identifies each Person that opens an
account, including any deposit account, treasury management account, loan, other
extension of credit, or other financial services
product.Β Β Accordingly, when any Borrower opens an account, the Agent
and the Banks will ask for the Borrowerβs name, tax identification number (if
applicable), business address, and other information that will allow the Agent
and the Banks to identify such Borrower.Β Β The Agent and the Banks may
also ask to see such Borrowerβs legal organizational documents or other
identifying documents.
Β
SECTION
8.14.Β Confidentiality.Β Β Each
of the Agent, the Japan Local Currency Agent, each Bank and each Japan Local
Currency Bank agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliatesβ respective managers, administrators, trustees,
partners, directors, officers, employees, agents, advisors and other
representatives who are involved in the transactions contemplated hereby or
otherwise have a need to know (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority having jurisdiction over it
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
hereto, (e) in connection with the exercise of any remedies hereunder, under the
Japan Local Currency Addendum or under any other document related to or executed
in connection herewith or therewith or any action or proceeding relating to this
Agreement, the Japan Local Currency Addendum or any other document related to or
executed in connection herewith or therewith or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
party (or its managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors and other representatives), surety, reinsurer,
guarantor or credit liquidity enhancer (or their advisors) to or in connection
with any swap, derivative or other similar transaction under which payments are
to be made by reference to the Borrowers and their respective obligations, or to
this Agreement or payments hereunder, (iii) to any rating agency when required
by it (it being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such Information and instructed to
keep such Information confidential), or (iv) the CUSIP Service Bureau or any
similar organization (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (g) with the
consent of the Borrowers or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Agent, the Japan Local Currency Agent, any Bank, any
Japan Local Currency Bank or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrowers.
Β
For purposes of
this Section, βInformationβ means
all information received from the Borrowers or any of their respective
Subsidiaries relating to the Borrowers or any of their respective Subsidiaries
or any of their respective businesses, other than any such information that is
available to the Agent, the Japan Local Currency Agent, any Bank and any Japan
Local Currency Bank on a nonconfidential basis prior to disclosure by the
Borrowers or any of their respective Subsidiaries, provided that, in the
case of information received from the Borrowers or any of their respective
Subsidiaries after the date hereof, such information is clearly identified at
the time of delivery as confidential.Β Β Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information, but
in no event less than a reasonable degree of care.
SECTION
8.15.Β Treatment
of Information.
Β
(a)Β Β Β Β Certain of the
Banks may enter into this Agreement and/or the Japan Local Currency Addendum and
take or not take action hereunder or thereunder on the basis of information that
does not contain Restricting Information.Β Β Other Banks may enter into
this Agreement and/or the Japan Local Currency Addendum and take or not take
action hereunder or thereunder on the basis of information that may contain
Restricting Information.Β Β Each Bank acknowledges that United States
federal and state securities laws prohibit any person from purchasing or selling
securities on the basis of material, non-public information concerning an issuer
of such securities or, subject to certain limited exceptions, from communicating
such information to any other Person.Β Β Neither the Agent nor any of
its Related Parties shall, by making any Communications (including Restricting
Information) available to a Bank, by participating in any conversations or other
interactions with a Bank or otherwise, make or be deemed to make any statement
with regard to or otherwise warrant that any such information or Communication
does or does not contain Restricting Information nor shall the Agent or any of
its Related Parties be responsible or liable in any way for any decision a Bank
may make to limit or to not limit its access to Restricting
Information.Β Β In particular, none of the Agent nor any of its Related
Parties (i) shall have, and the Agent, on behalf of itself and each of its
Related Parties, hereby disclaims, any duty to ascertain or inquire as to
whether or not a Bank has or has not limited its access to Restricting
Information, such Bankβs policies or procedures regarding the safeguarding of
material, nonpublic information or such Bankβs compliance with applicable laws
related thereto or (ii) shall have, or incur, any liability to any Borrower or
Bank or any of their respective Related Parties arising out of or relating to
the Agent or any of its Related Parties providing or not providing Restricting
Information to any Bank.
Β
(b)Β Β Β Β Each Borrower
agrees that (i) all Communications it provides to the Agent intended for
delivery to the Banks whether by posting to the Approved Electronic Platform or
otherwise shall be clearly and conspicuously marked βPUBLICβ if such
Communications do not contain Restricting Information which, at a minimum, shall
mean that the word βPUBLICβ shall appear prominently on the first page thereof,
(ii) by marking Communications βPUBLIC,β each Borrower shall be deemed to have
authorized the Agent and the Banks to treat such Communications as either
publicly available information or not material information (although, in this
latter case, such Communications may contain sensitive business information and,
therefore, remain subject to the confidentiality undertakings of Section 8.14)
with respect to such Borrower or its securities for purposes of United States
Federal and state securities laws, (iii) all Communications marked βPUBLICβ may
be delivered to all Banks and may be made available through a portion of the
Approved Electronic Platform designated βPublic Side Information,β and (iv) the
Agent shall be entitled to treat any Communications that are not marked βPUBLICβ
as Restricting Information and may post such Communications to a portion of the
Approved Electronic Platform not designated βPublic Side
Information.βΒ Β Neither the Agent nor any of its Affiliates shall be
responsible for any statement or other designation by an Borrower regarding
whether a Communication contains or does not contain material non-public
information with respect to any of the Borrowers or their securities nor shall
the Agent or any of its Affiliates incur any liability to any Borrower, any Bank
or any other Person for any action taken by the Agent or any of its Affiliates
based upon such statement or designation, including any action as a result of
which Restricting Information is provided to a Bank that may decide not to take
access to Restricting Information.Β Β Nothing in this Section 8.15 shall
modify or limit a Bankβs obligations under Section 8.14 with
regard to Communications and the maintenance of the confidentiality of or other
treatment of Information.
Β
(c)Β Β Β Β Each Bank
acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting
Information.Β Β Accordingly, each Bank agrees that it will nominate at
least one designee to receive Communications (including Restricting Information)
on its behalf and identify such designee (including such designeeβs contact
information) on such Bankβs Administrative Questionnaire.Β Β Each Bank
agrees to notify the Agent from time to time of such Bankβs designeeβs e-mail
address to which notice of the availability of Restricting Information may be
sent by electronic transmission.
Β
(d)Β Β Β Β Each Bank
acknowledges that Communications delivered hereunder and under the Japan Local
Currency Addendum may contain Restricting Information and that such
Communications are available to all Banks generally.Β Β Each Bank that
elects not to take access to Restricting Information does so voluntarily and, by
such election, acknowledges and agrees that the Agent and other Banks may have
access to Restricting Information that is not available to such electing
Bank.Β Β None of the Agent nor any Bank with access to Restricting
Information shall have any duty to disclose such Restricting Information to such
electing Bank or to use such Restricting Information on behalf of such electing
Bank, and shall not be liable for the failure to so disclose or use, such
Restricting Information.
Β
(e)Β Β Β Β The provisions of
the foregoing clauses of this Section 8.15 are
designed to assist the Agent, the Banks and the Borrowers, in complying with
their respective contractual obligations and applicable law in circumstances
where certain Banks express a desire not to receive Restricting Information
notwithstanding that certain Communications hereunder or under the Japan Local
Currency Addendum or other information provided to the Banks hereunder or
thereunder may contain Restricting Information.Β Β Neither the Agent nor
any of its Related Parties warrants or makes any other statement with respect to
the adequacy of such provisions to achieve such purpose nor does the Agent or
any of its Related Parties warrant or make any other statement to the effect
that Borrowerβs or Bankβs adherence to such provisions will be sufficient to
ensure compliance by such Borrower or Bank with its contractual obligations or
its duties under applicable law in respect of Restricting Information and each
of the Banks and each Borrower assumes the risks associated
therewith.
Β
SECTION
8.16.Β Termination
of Prior Agreement.Β Β Citibank, as Agent under the Prior
Agreement (the βExisting Agentβ), and
each of the Banks party to the Prior Agreement (the βExisting Banksβ),
hereby confirm that upon the Existing Agentβs receipt of all principal, accrued
interest, fees, expenses, costs and other amounts outstanding under the Prior
Agreement, and the Existing Agentβs distribution of such amounts to the Existing
Banks and any other parties entitled thereto, the Prior Agreement and the
commitments of the Existing Banks thereunder shall be terminated, and all of the
Borrowersβ obligations to the Existing Agent and the Existing Banks under the
Prior Agreement shall be terminated (other than contingent indemnity obligations
and any other obligations which by the terms of the Prior Agreement expressly
survive the termination of the Prior Agreement).Β Β Each of the
Borrowers hereby acknowledges and agrees to the termination of the Prior
Agreement pursuant to this Section
8.16.
Β
Β
CFSC
GUARANTY
Β
SECTION
9.01.Β The
Guaranty.Β Β CFSC hereby unconditionally and irrevocably
guarantees the due and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Advance to
CFC, and the due and punctual payment of all other amounts payable by CFC under
this Agreement and the Japan Local Currency Addendum.Β Β Upon failure by
CFC to pay punctually any such amount, CFSC shall forthwith on demand pay the
amount not so paid at the place, in the manner and with the effect otherwise
specified in Article
II of this Agreement.
Β
SECTION
9.02.Β Guaranty
Unconditional.Β Β The obligations of CFSC under this Article IX shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected
by:
Β
Β Β Β Β (i)Β Β Β Β any extension,
renewal, settlement, compromise, waiver or release in respect of any obligation
of CFC under this Agreement or the Japan Local Currency Addendum, by operation
of law or otherwise, or the exchange, release or non-perfection of any
collateral security therefor;
Β
Β Β Β Β (ii)Β Β Β Β any modification or
amendment of or supplement to this Agreement, the Japan Local Currency Addendum,
or any Note;
Β
Β Β Β Β (iii)Β Β Β Β any change in the
corporate existence, structure or ownership of CFC, including the merger of CFC,
into another entity, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting CFC or its assets, or any resulting release or
discharge of any obligation of CFC under this Agreement or the Japan Local
Currency Addendum, as applicable;
Β
Β Β Β Β (iv)Β Β Β Β the existence of
any claim, set-off or other rights which CFSC may have at any time against CFC,
the Agent, the Japan Local Currency Agent, any Bank or any other Person, whether
in connection herewith or any unrelated transactions, provided that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
Β
Β Β Β Β (v)Β Β Β Β any invalidity or
unenforceability relating to or against CFC for any reason of any provision or
all of this Agreement or the Japan Local Currency Addendum, or any provision of
applicable law or regulation purporting to prohibit the payment by CFC of the
principal of or interest on any Advance or any other amount payable by it under
this Agreement; or
Β
Β Β Β Β (vi)Β Β Β Β any other act or
omission to act or delay of any kind by CFC, the Agent, the Japan Local Currency
Agent, any Bank or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable
discharge of CFSCβs obligations under this Article IX or of
CFCβs obligations under this Agreement or the Japan Local Currency
Addendum.
Β
SECTION
9.03.Β Discharge
Only Upon Payment In Full; Reinstatement in Certain
Circumstances.Β Β CFSCβs obligations under this Article IX shall
remain in full force and effect until the Commitments are terminated and the
principal of and interest on the Advances to CFC and all other amounts payable
by CFSC and CFC under this Agreement and the Japan Local Currency Addendum shall
have been paid in full and shall survive the Current Termination Date, the
Extended Termination Date and the Term Loan Repayment Date, as
applicable.Β Β If at any time any payment of the principal of or
interest on any Advance to CFC or any other amount payable by CFC under this
Agreement or the Japan Local Currency Addendum is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of CFC or
otherwise, CFSCβs obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such
time.
Β
SECTION
9.04.Β Waiver by
CFSC.Β Β CFSC irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any right be exhausted or any action be taken
by the Agent, the Japan Local Currency Agent, any Bank or any other Person
against CFC or any other Person or any collateral security.Β Β CFSC
waives any benefit of the collateral, if any, which may from time to time secure
the Advances to CFC or any of CFCβs other obligations under this Agreement or
the Japan Local Currency Addendum, and authorizes the Agent, the Japan Local
Currency Agent, or the Banks to take any action or exercise any remedy with
respect thereto which the Agent, the Japan Local Currency Agent, or the Banks in
its or their discretion shall determine, without notice to CFSC.Β Β In
the event the Agent, the Japan Local Currency Agent, or the Banks elect to give
notice of any action with respect to any such collateral, ten (10) daysβ written
notice mailed to CFSC by certified mail at its address set forth in Section 8.02 shall be
deemed reasonable notice of any matters contained in such notice.
Β
SECTION
9.05.Β Subrogation.Β Β Upon
making any payment hereunder, CFSC shall be subrogated to the rights of the
Banks against CFC with respect to such payment; provided that CFSC
shall not enforce any right or demand or receive any payment by way of
subrogation until all amounts of principal of and interest on the Advances to
CFC and all other amounts payable by CFC under this Agreement and the Japan
Local Currency Addendum have been paid in full.
Β
SECTION
9.06.Β Stay of
Acceleration.Β Β In the event that acceleration of the
time for payment of any amount payable by CFC under this Agreement or the Japan
Local Currency Addendum is stayed upon the insolvency, bankruptcy or
reorganization of CFC, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable by CFSC hereunder
forthwith on demand by the Agent for the account of the Banks.
Β
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective
officers or representatives thereunto duly authorized, as of the date first
above written.
Β
Β
| Β | Β | Β | Β | ||
| Β | Β | Β | Β | Β | |
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx X.
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Treasurer
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β | Β | ||
| Β | Β | Β | Β |
CATERPILLAR
FINANCIAL
SERVICES
CORPORATION
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx X. Xxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx X.
Xxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Executive
Vice President and Chief Financial Officer
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β | Β | ||
| Β | Β | Β | Β |
CATERPILLAR
FINANCE CORPORATION
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/Β Xxxxx X.
Xxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx X.
Xxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Director
|
| Β | Β | Β | Β | Β | Β |
Β
| Β | Β | Β | Β | Β | |
| Β | Β | Β | Β |
CITIBANK,
N.A., as Agent
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx X. Xxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx
Xxx
|
| Β | Β | Β | Β |
Title:
|
Vice
President
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β | Β | ||
Β
| Β | Β | Β | Β |
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as Japan Local Currency
Agent
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Muneya Taniguchi
|
|
| Β | Β | Β | Β |
Name:
|
Muneya
Taniguchi
|
| Β | Β | Β | Β |
Title:
|
Chief
Manager
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β | Β | ||
Β
Banks
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$230,000,000
|
Β |
Β
$230,000,000
|
Β |
CITIBANK,
N.A.
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx Xxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx
Xxx
|
| Β | Β | Β | Β |
Title:
|
Vice
President
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Citibank,
N.A.
0000 Xxxxx
Xx.
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention:Β Β Xxxx
Xxxxxx
Phone:(000)
000-0000
Fax:(000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Citibank,
N.A.
0000 Xxxxx
Xx.
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention:Β Β Xxxx
Xxxxxx
Phone:(000)
000-0000
Fax:(000)
000-0000
Β
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$213,750,000
|
Β |
Β
$213,750,000
|
Β |
BANK OF
AMERICA, N.A.
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Senior Vice
President
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Bank of
America, N.A.
0000 Xxxxxxx
Xx
Xxxxxxx,
XX
Attention:
Xxxxxx X. Xxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Bank of
America, N.A.
0000 Xxxxxxx
Xx
Xxxxxxx,
XX
Attention:
Xxxxxx X. Xxxx
Phone:Β Β Β (000)
000-0000
Fax:Β Β Β Β Β Β Β (000)
000-0000
Β
|
||
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$213,750,000
|
Β |
Β
$213,750,000
|
Β |
JPMORGAN
CHASE BANK, N.A
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxxx Xxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxxx
Xxxxx
|
| Β | Β | Β | Β |
Title:
|
Executive
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
JPMorgan
Chase Bank, N.A.
0000 Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX
Attention:
Xxxxxx X. Xxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β
(000) 000-0000
Β
Eurocurrency
Lending Office:
Β
JPMorgan
Chase Bank, N.A.
0000 Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX
Attention:
Xxxxxx X. Xxxxxx
Phone:Β Β Β Β (000)
000-0000
Fax:Β Β Β Β Β Β Β Β (000)
000-0000
Β
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$188,750,000
|
Β |
$188,750,000
|
Β |
ABN AMRO BANK
N.V.
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
W. Xxxxxxx Xxxxx
|
|
| Β | Β | Β | Β |
Name:
|
W. Xxxxxxx
Xxxxx
|
| Β | Β | Β | Β |
Title:
|
Managing
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxx
|
| Β | Β | Β | Β |
Title:
|
Β Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Β
Domestic
Lending Office:
Β
ABN AMRO Bank
N.V.
000 X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Credit Administration/Loan Administration
Fax: (000)
000-0000
Β Β Β Β Β Β Β (000)
000-0000
Β
with copies
to:
Β
ABN AMRO Bank
N.V.
000 X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XxxxxxxxΒ Β 00000
Attention:Β Β Β Xxxxxxx
Xxxx
Fax:Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Same as
above.
Β
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$182,500,000
|
Β |
Β
$182,500,000
|
Β |
Β
BARCLAYS BANK
PLC
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxx Xxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxx
Xxxxx
|
| Β | Β | Β | Β |
Title:
|
Manager
|
|
Β
Β
|
Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Barclays Bank
PLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxx Xxxxxxxxx
Phone:Β (000)
000 0000
Fax:Β Β Β Β Β (000)
000 0000
Β
Eurocurrency
Lending Office:
Β
Barclays Bank
PLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxx Xxxxxxxxx
Phone:Β (000)
000 0000
Fax:Β Β Β Β Β (000)
000-0000
Β
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$168,750,000
|
Β |
Β
$168,750,000
|
Β |
Β
SOCIETE
GENERALE
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxxx X. Xxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxxx X.
Xxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
SociΓ©tΓ©
GΓ©nΓ©rale, Chicago Branch
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX
00000
Attention:
Xxxxxxxx Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
SociΓ©tΓ©
GΓ©nΓ©rale, Chicago Branch
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX
00000
Attention:
Xxxxxxxx Xxxxxxx
Phone:Β
(000) 000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
|
||
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$140,000,000
|
Β |
Β
$140,000,000
|
Β |
Β
XXXXXXX XXXXX
BANK USA
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx Xxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx
Xxxxx
|
| Β | Β | Β | Β |
Title:
|
First Vice
President
|
|
Β
Β
|
Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Xxxxxxx Xxxxx
Bank USA
000 Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Xxxxxxx Xxxxx
Bank USA
000 Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
|
||
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$115,000,000
|
Β |
Β
$115,000,000
|
Β |
Β
XXXXXXX
STREET LLC
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Authorized
Signatory
|
|
Β
Β
|
Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Xxxxxxx
Street LLC
00 Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxx Xxxx,
XX 00000
Attention:Β Β Xxxxxxxx
Xxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β
(000) 000-0000
Β
Eurocurrency
Lending Office:
Β
Xxxxxxx
Street LLC
00 Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxx Xxxx,
XX 00000
Attention:Β Β Xxxxxxxx
Xxxx
Phone:Β Β Β Β Β Β Β (000)
000-0000
Fax:Β Β Β Β Β Β Β Β Β Β Β (000)
000-0000
Β
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$85,000,000
|
Β |
Β
$10,000,000
|
Β |
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD.
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Authorized
Signatory
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.
0000 Xxxxxx
xx xxx Xxxxxxxx
Xxx Xxxx,
XXΒ Β 00000-0000
Attention: US
Corporate Banking
Xxxx
Xxx
Phone:Β Β Β (000)
000-0000
Fax:Β Β Β Β Β Β Β (000)
000-0000 with a copyΒ Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β to (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.
0000 Xxxxxx
xx xxx Xxxxxxxx
Xxx Xxxx,
XXΒ Β 00000-0000
Attention: US
Corporate Banking -Β Xxxx
Xxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000 with a copy
Β Β Β Β Β Β Β Β Β Β Β Β to (000)
000-0000
Β
|
||
| Β | Β | Β | Β | ||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$85,000,000
|
Β |
Β
$85,000,000
|
Β |
Β
LLOYDS TSB
BANK PLC
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Managing
Director, Corporate Banking - USA
Β
|
| Β | Β | Β |
By:
|
/s/
Mario Del Duca
|
|
| Β | Β | Β | Β |
Name:
|
Mario Del
Duca
|
| Β | Β | Β | Β |
Title:
|
Managing
Director, Corporate Banking - USA
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Lloyds TSB
Bank plc
0000 Xxxxxx
xx xxx Xxxxxxxxβ00xx
Xxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxxxx Xxxxxx
Phone:(000)
000-0000
Fax:Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Lloyds TSB
Bank plc
1251 Avenue
of the Americasβ39th
Floor
New York,
NYΒ Β 10020
Attention:
Xxx Xxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$85,000,000
|
Β |
Β
$85,000,000
|
Β |
Β
ROYAL BANK OF
CANADA
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxxx Majesty
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxxx
Majesty
|
| Β | Β | Β | Β |
Title:
|
Authorized
Signatory
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Royal Bank of
Canada, New York Branch
Xxx Xxxxxxx
Xxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:Β Β GLA
Administrator
Phone:Β Β Β Β Β (000)
000-0000/(000) 000-0000
Fax:Β Β Β Β Β Β Β Β Β (000)
000-0000/(000) 000-0000
Β
Eurocurrency
Lending Office:
Β
Royal Bank of
Canada, New York Branch
Xxx Xxxxxxx
Xxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:Β GLA
Administrator
Phone:Β Β Β (000)
000-0000/(000) 000-0000
Fax:Β Β Β Β Β Β Β (000)
000-0000/(000) 000-0000
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$85,000,000
|
Β |
Β
$85,000,000
|
Β |
Β
STANDARD
CHARTERED BANK
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx Xxxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx
Xxxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Associate
Director
|
|
Β
Β
|
Β | Β | Β | Β | Β |
| Β | Β | Β |
By:
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxx X.
Xxxxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
AVP/Credit
Documentation Credit Risk Control
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Standard
Chartered Bank
Xxx Xxxxxxx
Xxxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxx X. Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β
(000) 000-0000
Β
Eurocurrency
Lending Office:
Β
Standard
Chartered Bank
Xxx Xxxxxxx
Xxxxxx
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxx X. Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
$85,000,000
|
Β |
$85,000,000
|
Β |
Β
TORONTO
DOMINION
(NEW YORK)
LLC
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx X. Xxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx X.
Xxxxx
|
| Β | Β | Β | Β |
Title:
|
Authorized
Signatory
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Toronto
Dominion Bank
Royal Trust
Tower
00 Xxxx
Xxxxxx Xxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:Β Β Xxxx
Xxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
TD
Securities
Royal Trust
Tower
00 Xxxx
Xxxxxx Xxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:Β Β Xxxx
Xxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$75,000,000
|
Β |
Β
$75,000,000
|
Β |
Β
THE NORTHERN
TRUST COMPANY
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Vice
President
|
|
Β
Β
|
Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
The Northern
Trust Company
00 X. XxXxxxx
Xxxxxx
Xxxxxxx,
XXΒ Β 00000
Attention:
Xxxxxx Xxxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
The Northern
Trust Company
00 X. XxXxxxx
Xxxxxx
Xxxxxxx,
XXΒ Β 00000
Attention:
Xxxxxx Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$62,500,000
|
Β |
Β
$62,500,000
|
Β |
Β
U.S. BANK
NATIONAL ASSOCIATION
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Vice
President
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
U.S. Bank
National Association
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XXΒ Β 00000
Attention:Β Β Xxxxxxx
Xxxxxx
Phone:Β Β Β Β (000)
000-0000
Fax:Β Β Β Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
U.S. Bank
National Association
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XXΒ Β 00000
Attention:Β Β Xxxxxxx
Xxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
Β
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$60,000,000
|
Β |
Β
$60,000,000
|
Β |
Β
COMMERZBANK
AG, NEW YORK AND GRAND CAYMAN BRANCHES
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Vice
President
|
|
Β
Β
|
Β | Β | Β | Β | Β |
| Β | Β | Β |
By:
|
/s/Xxxx
Xxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxx
Xxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Senior Vice
President
|
| Β | Β |
Β
Β
|
Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Commerzbank
AG, New York and
Grand Cayman
Branches
Two World
Financial Center
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxxxxx Xxxxxxx
Phone:Β Β Β (000)
000-0000
Fax:Β Β Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Commerzbank
AG, New York and
Grand Cayman
Branches
Two World
Financial Center
Xxx Xxxx,
XXΒ Β 00000
Attention:
Xxxxxxxx Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β Β (000)
000-0000
Β
|
||
Β
Β
|
Β
Β
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$50,000,000
|
Β |
Β
$50,000,000
|
Β |
Β
WESTPAC
BANKING CORPORATION
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Head of
Corporate and Institutional Banking Americas
|
| Β | Β |
Β
Β
|
Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
Westpac
Banking Corporation
000 Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX
Attention:
Xxxxx Xxxx
Phone: (000)
000-0000Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Fax:Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
Westpac
Banking Corporation
000 Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX
Attention:
Xxxxx Xxxx
Phone: (000)
000-0000Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Fax:Β Β Β Β Β (000)
000-0000
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$42,500,000
|
Β |
Β
$42,500,000
|
Β |
Β
ING BANK
N.V., DUBLIN BRANCH
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxxx Xxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxxx
Xxxxx
|
| Β | Β | Β | Β |
Title:
|
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
By:
|
/s/
Xxxx Xxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxx
Xxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
ING Bank
N.V., Dublin Branch
00 Xx.
Xxxxxxxβx Xxxxx
Xxxxxx
0
Ireland
Attention:
Xxxx Xxxxxx
Phone:Β Β Β 000-0-000-0000
Fax:Β Β Β Β Β Β Β 000-0-000-0000
Β
Eurocurrency
Lending Office:
Β
ING Bank
N.V., Dublin Branch
00 Xx.
Xxxxxxxβx Xxxxx
Xxxxxx
0
Ireland
Attention:
Xxxx Xxxxxx
Phone:Β Β Β 000-0-000-0000
Fax:Β Β Β Β Β Β Β 000-0-000-0000
|
||
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$30,000,000
|
Β |
Β
$30,000,000
|
Β |
Β
BNP
PARIBAS
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Jo Xxxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Jo Xxxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Managing
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
By:
|
/s/
Xxxx Xxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxx
Xxxxxx
|
| Β | Β | Β | Β |
Title:
|
Managing
Director
|
| Β | Β |
Β
Β
|
Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
BNP
Paribas
000 Xxxxx
XxXxxxx Xxxxxx
Xxxxx
000
Xxxxxxx, XX
00000
Attention: Jo
Xxxxx Xxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
BNP
Paribas
000 Xxxxx
XxXxxxx Xxxxxx
Xxxxx
000
Xxxxxxx, XX
00000
Attention: Jo
Xxxxx Xxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$30,000,000
|
Β |
Β
$30,000,000
|
Β |
Β
KBC BANK
N.V.
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxx X.
Xxxxxxx
|
| Β | Β | Β | Β |
Title:
|
First Vice
President
|
| Β | Β | Β | Β |
Β
Β
|
Β |
| Β | Β | Β |
By:
|
/s/
Xxxxxx Xxxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxx
Xxxxxxxx
|
| Β | Β | Β | Β |
Title:
|
Managing
Director
|
| Β | Β | Β | Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
KBC Bank
N.V.
1177 Avenue
of the Americas
Xxx Xxxx,
XXΒ Β 00000
Attention:Β Β Xxxxxxx
Xxxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
Eurocurrency
Lending Office:
Β
KBC Bank
N.V.
1177 Avenue
of the Americas
Xxx Xxxx,
XXΒ Β 00000
Attention:Β Β Xxxxxxx
Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β
(000) 000-0000
Β
|
||
Β
Β
|
COMMITMENT
|
Β |
REVOLVING CREDIT
COMMITMENT
|
Β | Β | |
|
Β
$25,000,000
|
Β |
Β
$25,000,000
|
Β |
Β
THE BANK OF
NEW YORK MELLON
|
|
| Β | Β | Β | Β | Β | |
| Β | Β | Β |
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
| Β | Β | Β | Β |
Name:
|
Xxxxxx X.
Xxxxxxx
|
| Β | Β | Β | Β |
Title:
|
First Vice
President
|
| Β | Β |
Β
Β
|
Β | Β | Β |
| Β | Β | Β |
Domestic
Lending Office:
Β
The Bank of
New York Mellon
000 Xxxxx
Xxxxxx
0 Xxxxxx
Xxxxxx β Room 3600
Xxxxxxxxxx,
XX 00000-0000
Attention:Β Β Xxxxxx
X. Xxxxxxx
Phone:Β (000)
000-0000
Fax:Β Β Β Β
(000) 000-0000
Β
Eurocurrency
Lending Office:
Β
The Bank of
New York Mellon
000 Xxxxx
Xxxxxx
0 Xxxxxx
Xxxxxx β Room 3600
Xxxxxxxxxx,
XX 00000-0000
Attention:Β Β Xxxxxx
X. Xxxxxxx
Phone:Β Β (000)
000-0000
Fax:Β Β Β Β Β Β (000)
000-0000
Β
|
||
TOTAL
COMMITMENTΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β TOTAL REVOLVING CREDIT COMMITMENT:
Β
$2,252,
500,000Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β $2,177,500,000
Β
Β
Β
Β
Β
FORM
OF NOTE
Β
Dated:Β Β __________,
200_
Β
Β
FOR VALUE RECEIVED,
the undersigned, [Caterpillar Inc./Caterpillar Financial Services Corporation]
(the βBorrowerβ), HEREBY PROMISES TO PAY to the order of ____________________________
(the βBankβ) for the account of its Applicable Lending Office (as defined in the
Credit Agreement referred to below) the principal amount of each Advance (as
defined below) made by the Bank to the Borrower pursuant to the Credit Agreement
(as defined below) on the last day of the Interest Period (as defined in the
Credit Agreement) occurring on or prior to the Term Loan Effective Date (as
defined in the Credit Agreement) for such Advance, and on the Term Loan
Repayment Date (as defined in the Credit Agreement) if the Term Loan Election
(as defined in the Credit Agreement) is made.
Β
The Borrower
promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Β
Both principal and
interest are payable in the currency and to the office of the Agent specified
pursuant to the Credit Agreement, in same day funds.Β Β Each Advance
made by the Bank to the Borrower and the maturity thereof, and all payments made
on account of principal thereof, shall be recorded by the Bank and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
Β
This Promissory
Note is one of the Notes referred to in, and is entitled to the benefits of, the
Credit Agreement (364-Day Facility) dated as of September 18, 2008, as the same
may be amended, restated, supplemented or otherwise modified from time to time
(the βCredit Agreementβ) among the Borrower, [names of the other Borrowers under
the Credit Agreement] (together with the Borrower, the βBorrowersβ) the Bank and
certain other banks parties thereto, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as
Japan Local Currency Agent, and Citibank, N.A., as Agent for the Bank and such
other banks.Β Β The Credit Agreement, among other things, (i) provides
for the making of advances (the βAdvancesβ) by the Bank to the Borrowers from
time to time in an aggregate amount not to exceed at any time outstanding such
Bankβs Commitment (as defined in the Credit Agreement) at such time, the
indebtedness of the Borrower resulting from each such Advance to the Borrower
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
Β
The Borrower hereby
waives presentment, demand, protest and notice of any kind.Β Β No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
Β
This Promissory
Note shall be governed by, and construed in accordance with, the laws of the
State of New York, United States (including Sections 5-1401 and 5-1402 of the
General Obligations Laws of the State of New York but otherwise without regard
to the conflict of law principles thereof).
Β
[CATERPILLAR
INC./CATERPILLAR
FINANCIAL SERVICES
CORPORATION]
ByΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Title:
ADVANCES,
MATURITIES, AND PAYMENTS OF PRINCIPAL
Β
|
Date
|
Type of
Advance |
Currency
and
Amount of Advance |
Maturity
of
Advance
|
Amount
of
Principal
Paid
or
Prepaid
|
Unpaid
Principal Balance |
Notation
Made By |
|
Β
Β
|
Β | Β | Β | Β | Β | Β |
NOTICE
OF REVOLVING CREDIT BORROWING
Β
Citibank, N.A., as
Agent
for the Banks
parties
to the Credit
Agreement
referred to
below
0000 Xxxxx
Xx.
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention: Bank
Loan Syndications
Β
Citicorp North
America, Inc.
000 Xxxxx Xxxxxx
Xxxxx
Xxxxxxx, Xxxxxxxx
00000
Attention:Β Β Xxxxxxxx
XβXxxxxxx
Β
Ladies and
Gentlemen:
Β
The undersigned,
[Caterpillar Inc./Caterpillar Financial Services Corporation], refers to the
Credit Agreement (364-Day Facility) dated as of September 18, 2008, as the same
may be amended, restated, supplemented or otherwise modified from time to time
(the βCredit Agreement,β the terms defined therein being used herein as therein
defined), among the undersigned, [names of the other Borrowers under the Credit
Agreement], certain Banks parties thereto, The Bank of Tokyo-Mitsubishi UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for said
Banks, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby requests a Revolving Credit
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Revolving Credit Borrowing (the βProposed
Revolving Credit Borrowingβ) as required by Section 2.02(a) of
the Credit Agreement:
Β
Β Β Β Β Β Β Β Β (i)Β Β Β Β The Business Day of
the Proposed Revolving Credit Borrowing is __________, 200_.
Β
Β Β Β Β Β Β Β Β (ii)Β Β Β The Type of
Revolving Credit Advances comprising the Proposed Revolving Credit Borrowing is
[Base Rate Advances] [Eurocurrency Rate Advances].
Β
Β Β Β Β Β Β Β Β (iii)Β Β Β Β The currency of the
Proposed Revolving Credit Borrowing is ______.
Β
Β Β Β Β Β Β Β Β (iv)Β Β Β Β The aggregate
amount of the Proposed Revolving Credit Borrowing is $__________.
Β
Β Β Β Β Β Β Β Β (v)Β Β Β Β The Interest Period
for each Advance made as part of the Proposed Revolving Credit Borrowing is [30
days] [_____ month[s]].
Β
Β Β Β Β Β Β Β Β (vi)Β Β Β Β The proceeds of the
Proposed Revolving Credit Borrowing should be remitted in same day funds to
[Account Number, Bank Name, Account Name, ______].
Β
The undersigned
hereby certifies that the following statements are true on the date hereof, and
will be true on the date of the Proposed Revolving Credit
Borrowing:
Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (A)Β Β Β Β the representations
and warranties contained in Section 4.01
[(excluding those contained in the second sentence of subsection (e) and in
subsection (f) thereof)]1 [(excluding those contained in the second
sentence of subsection (e) thereof)]2 [and Section 4.02]3 are correct, before and after giving effect to
the Proposed Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (B)Β Β Β Β no event has
occurred and is continuing, or would result from such Proposed Revolving Credit
Borrowing or from the application of the proceeds therefrom, which constitutes
an Event of Default [or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both].2
Β
Very truly
yours,
[CATERPILLAR
INC./CATERPILLAR
FINANCIAL SERVICES
CORPORATION]
ByΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Title:
Β
1Β Β Β Β Β Β Β Β Β Β Β To
be included in Notices of Revolving Credit Borrowing pursuant to Section 3.02,
unless Section 3.03 shall apply.Β
2Β Β Β Β Β Β Β Β Β Β Β To
be included in Notices of Revolving Credit Borrowing pursuant to Section
3.03.Β
3Β Β Β Β Β Β Β Β Β Β Β To
be included in Notices of Revolving Credit Borrowing from CFSC.
Β
Β
Β
NOTICE
OF JAPAN LOCAL CURRENCY BORROWING
Β
Β
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
Β Β as
Japan Local Currency Agent
Corporate Banking
Division No. 3, Corporate Banking Group
0-0, Xxxxxxxxxx
0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
Attention:Β Β Xx.
Xxx Xxxxxx
Citibank, N.A., as
Agent
for the Banks
parties
to
the Credit Agreement
referred to
below
0000 Xxxxx
Xx.
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention:Β Β Bank
Loan Syndications
Β
Citicorp North
America, Inc.
000 Xxxxx Xxxxxx
Xxxxx
Xxxxxxx, Xxxxxxxx
00000
Β
Attention:Β Β Xxxxxxxx
XβXxxxxxx
Β
Ladies and
Gentlemen:
Β
The undersigned,
Caterpillar Finance Corporation, refers to (1) the Credit Agreement (364-Day
Facility) dated as of September 18, 2008, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the βCredit Agreement,β
the terms defined therein being used herein as therein defined), among the
undersigned, Caterpillar Inc., Caterpillar Financial Services Corporation
(βCFSCβ), certain Banks parties thereto, The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
as Japan Local Currency Agent, and Citibank, N.A., as Agent for said Banks, and
(2) the Japan Local Currency Addendum dated as of September 18, 2008, among the
undersigned, CFSC, the Japan Local Currency Banks party thereto, and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent (the
βAddendumβ).Β Β The undersigned hereby gives you notice, irrevocably,
pursuant to Section
2.03B of the Credit Agreement and the Addendum that the undersigned
hereby requests a Japan Local Currency Borrowing under the Credit Agreement and
the Addendum, and in that connection sets forth below the information relating
to such Japan Local Currency Borrowing (the βProposed Borrowingβ) as required by
Section 2.03B
of the Credit Agreement:
Β
Β Β Β Β (i)Β Β Β Β The Business Day of
the Proposed Borrowing is __________, 200_.Β Β This [is] [is not] a
same-day Borrowing request.
Β
Β Β Β Β (ii)Β Β Β Β The Type of Japan
Local Currency Advances comprising the Proposed Borrowing is [Japan Base Rate
Advances] [TIBO Rate Advances].
Β
Β Β Β Β (iii)Β Β Β Β The aggregate
amount of the Proposed Borrowing is $_____________.
Β
Β Β Β Β (iv)Β Β Β Β The Interest Period
for each Advance made as part of the Proposed Borrowing is [30 days] [_____
month[s]].
Β
The undersigned
hereby certifies that the following statements are true on the date hereof, and
will be true on the date of the Proposed Borrowing:
Β
Β Β Β Β Β Β Β Β Β Β Β Β (A)Β Β Β Β the representations
and warranties contained in Section 4.01
[(excluding those contained in the second sentence of subsection (e) and in
subsection (f) thereof)]4 [(excluding those contained in the second
sentence of subsection (e) thereof)]5 and Section 4.02 are
correct, before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
and
Β
Β Β Β Β Β Β Β Β Β Β Β Β (B)Β Β Β Β no event has
occurred and is continuing, or would result from such Proposed Borrowing or from
the application of the proceeds therefrom, which constitutes an Event of Default
[or would constitute an Event of Default but for the requirement that notice be
given or time elapse or both].5
Β
Very truly
yours,
CATERPILLAR FINANCE
CORPORATION
ByΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Title:
Β
4Β Β Β Β Β Β Β Β Β Β Β To
be included in Notices of Borrowing pursuant to Section 3.02, unless Section
3.03 shall apply.Β
5Β Β Β Β Β Β Β Β Β Β Β To
be included in Notices of Borrowing pursuant to Section 3.03.
Β
Β
NOTICE
OF ALLOCATION
Β
Citibank, N.A., as
Agent
for the Banks
parties
to
the Credit Agreement
referred to
below
0000 Xxxxx
Xx.
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention: Bank
Loan Syndications
Β
Citicorp North
America, Inc.
000 Xxxxx Xxxxxx
Xxxxx
Xxxxxxx, Xxxxxxxx
00000
Attention:Β Β Xxxxxxxx
XβXxxxxxx
Β
Ladies and
Gentlemen:
Β
The undersigned,
Caterpillar Inc., as Borrower Agent on behalf of itself, Caterpillar Financial
Services Corporation and Caterpillar Finance Corporation (the βBorrowersβ),
refers to the Credit Agreement (364-Day Facility) dated as of September 18,
2008, as the same may be amended, restated, supplemented or otherwise modified
from time to time (the βCredit Agreement,β the terms defined therein being used
herein as therein defined), among the Borrowers, certain Banks parties thereto,
The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Bank, and
Citibank, N.A., as Agent for said Banks, and hereby gives you notice, pursuant
to Section
2.01(b) of the Credit Agreement that the Borrowers request a
re-allocation of the Total Commitment, and in that connection sets forth below
the information relating to such re-allocation as required by Section 2.01(b) of
the Credit Agreement:
Β
(v)Β The Business Day of
the proposed re-allocation is ________, 200_.
Β
(vi)Β The Allocation for
each of Caterpillar Inc. and Caterpillar Financial Services Corporation after
giving effect to such re-allocation is as follows:
Β
|
Borrower
|
Allocation
|
|
|
Caterpillar
Inc.
|
$
|
Β |
|
Caterpillar
Financial Services Corporation
|
$
|
Β |
| Β | Β | Β |
Β
Β
Very truly
yours,
CATERPILLAR
INC.
By:
______________________________
Β Β Β Β Β Β Β Title:
Β
Β
NOTICE
OF BANK ADDITION
Β
Citibank, N.A., as
Agent
for the Banks
parties
to the Credit
Agreement
referred to
below
0000 Xxxxx
Xx.
Xxx Xxxxxx,
Xxxxxxxx 00000
Attention: Bank
Loan Syndications
Β
Citicorp North
America, Inc.
000 Xxxxx Xxxxxx
Xxxxx
Xxxxxxx, Xxxxxxxx
00000
Attention:Β Β Xxxxxxxx
XβXxxxxxx
Β
Ladies and
Gentlemen:
Β
The undersigned,
Caterpillar Inc., Caterpillar Financial Services Corporation and Caterpillar
Finance Corporation (the βBorrowersβ), refer to the Credit Agreement (364-Day
Facility) dated as of September 18, 2008, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the βCredit Agreement,β
the terms defined therein being used herein as therein defined), among the
Borrowers, certain Banks parties thereto, The Bank of Tokyo-Mitsubishi UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for said
Banks, and hereby give you notice, pursuant to Section 2.05(c) of
the Credit Agreement that the Borrowers request a Bank Addition, and in that
connection set forth below the information relating to such proposed Bank
Addition (the βProposed Bank Additionβ) as required by Section 2.05(c) of
the Credit Agreement:
Β
Β Β Β Β Β Β Β Β (i)Β Β Β Β The Business Day of
the Proposed Bank Addition is ________, 200_.
Β
Β Β Β Β Β Β Β Β (ii)Β Β Β Β The name and
address of the proposed Added Bank are as follows:
Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ______________________________
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ______________________________
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ______________________________
Β Β Β Β Β Β Β Β (iii)Β Β Β Β The amount of the
Commitment of the proposed Added Bank, after giving effect to the Proposed Bank
Addition, would be $__________.
Β
Β
Very truly
yours,
CATERPILLAR
INC.
Β
By:
______________________________
Β Β Β Β Β Β Β Title:
Β
Β
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:
______________________________
Β Β Β Β Β Β Β Title:
Β
CATERPILLAR FINANCE
CORPORATION
By:
______________________________
Β Β Β Β Β Β Β Title:
Β
Β
Β
ASSIGNMENT
AND ACCEPTANCE
Β
Dated
_______________, 200_
Β
Β
Reference is made
to the Credit Agreement (364-Day Facility) dated as of September 18, 2008, as
the same may be amended, restated, supplemented or otherwise modified from time
to time (the βCredit Agreementβ) among Caterpillar Inc., Caterpillar Financial
Services Corporation, and Caterpillar Finance Corporation (the βBorrowersβ), the
Banks (as defined in the Credit Agreement), The Bank of Tokyo-Mitsubishi UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for the Banks
(the βAgentβ).Β Β Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein with the same meaning.
Β
_____________ (the
βAssignorβ) and ___________________ (the βAssigneeβ) agree as
follows:
Β
1.Β Β Β Β The Assignor hereby
sells and assigns to the Assignee, and the Assignee hereby purchases and assumes
from the Assignor, the percentage interest specified on Schedule 1 hereto in
and to all of the Assignorβs rights and obligations under the Credit Agreement
as of the date hereof (after giving effect to any other assignments thereof made
prior to the date hereof, whether or not such assignments have become effective,
but without giving effect to any other assignments thereof also made on the date
hereof), including, without limitation, such percentage interest in (i) the
Assignorβs Commitment and Revolving Credit Commitment, which on the date hereof
(after giving effect to any other assignments thereof made prior to the date
hereof, whether or not such assignments have become effective, but without
giving effect to any other assignments thereof also made on the date hereof) are
in the dollar amounts specified as the Assignorβs Commitment and Revolving
Credit Commitment on Schedule 1 hereto,
which Commitment is allocated between Caterpillar and CFSC, the Assignorβs
Allocated Commitment for each such Borrower as of the date hereof being set
forth on Schedule
1 hereto; [(ii) the Assignorβs Japan Local Currency Commitment, which on
the date hereof (after giving effect to any other assignments thereof made prior
to the date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof also made on the date
hereof) is in the dollar amount specified as the Assignorβs Japan Local Currency
Commitment on Schedule
1 hereto; (ii)/(iii)]6 the aggregate outstanding principal amount of
Advances owing to the Assignor by each Borrower, which on the date hereof (after
giving effect to any other assignments thereof made prior to the date hereof,
whether or not such assignments have become effective, but without giving effect
to any other assignments thereof also made on the date hereof) is in the dollar
amount specified as the aggregate outstanding principal amount of Advances owing
to the Assignor from such Borrower on Schedule 1 hereto;
and (iii)/(iv) the Notes, if any, held by the Assignor.
Β
2.Β Β Β Β The Assignor (i)
represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, the Japan Local Currency
Addendum or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the Japan Local Currency Addendum
or any other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by any
Borrower of any of its obligations under the Credit Agreement, the Japan Local
Currency Addendum or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Notes, if any, referred to in paragraph 1 above
and requests that the Agent exchange each such Note from each Borrower for a new
Note executed by such Borrower payable to the order of the Assignee or new Notes
executed by such Borrower payable to the order of the Assignee and the Assignor,
as applicable.
Β
3.Β Β Β Β Following the
execution of this Assignment and Acceptance by the Assignor and the Assignee, it
will be delivered to the Agent for acceptance by the Agent.Β Β The
effective date of this Assignment and Acceptance shall be the date of acceptance
thereof by the Agent, unless a later date therefor is specified on Schedule 1 hereto
(the βEffective Dateβ).
Β
4.Β Β Β Β Upon such
acceptance by the Agent, as of the Effective Date, (i) the Assignee shall, in
addition to the rights and obligations under the Credit Agreement [and the Japan
Local Currency Addendum]7 held by it immediately prior to the Effective
Date, have the rights and obligations under the Credit Agreement [and the Japan
Local Currency Addendum]8 that have been assigned to it pursuant to this
Assignment and Acceptance and (ii) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement [and the Japan Local Currency
Addendum]9.
Β
5.Β Β Β Β Upon such
acceptance by the Agent, from and after the Effective Date, the Agent [and the
Japan Local Currency Agent]10 shall make all payments under the Credit
AgreementΒ Β [,the Japan Local Currency Addendum]11 and the Notes, if any, in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest, and Facility Fees with respect thereto) to the
Assignee.Β Β The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement [,Β the Japan Local
Currency Addendum]12 and the Notes, if any, for periods prior to
the Effective Date directly between themselves.
Β
6.Β Β Β Β This Assignment and
Acceptance shall be governed by, and construed in accordance with, the laws of
the State of New York (including Sections 5-1401 and 5-1402 of the General
Obligations Laws of the State of New York but otherwise without regard to the
conflict of law principles thereof).
Β
IN WITNESS WHEREOF,
the parties hereto have caused this Assignment and Acceptance to be executed by
their respective officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1
hereto.
Β
6Β Β Β Β Applicable if
Assignor is a Japan Local Currency Bank.Β
7Β Β Β Β Applicable if
Assignor is a Japan Local Currency Bank.Β
8Β Β Β Β Applicable if
Assignor is a Japan Local Currency Bank.Β
9Β Β Β Β Applicable if
Assignor is a Japan Local Currency Bank.Β
10Β Β Β Applicable if
Assignor is a Japan Local Currency Bank.Β
11Β Β Β Applicable if
Assignor is a Japan Local Currency Bank.Β
12Β Β Applicable
if Assignor is a Japan Local Currency Bank.
Β
Schedule
1
to
Assignment
and Acceptance
Dated __________,
200_
Β
Β
|
SectionΒ Β 1.
|
Β | Β | Β | Β | Β | |||
| Β |
Percentage
Interest:
|
Β | Β | Β | Β |
%
|
||
| Β |
Assignorβs
Commitment:
|
Β | Β |
$
|
Β | Β | ||
| Β |
Assignorβs
Revolving Credit Commitment:
|
Β | Β |
$
|
Β | Β | ||
| Β |
[Assignorβs
Japan Local Currency Commitment:]
|
Β | Β |
$
|
Β | Β | ||
| Β | Β | Β | Β | Β | Β | Β | ||
|
(a)
|
Allocated
Commitment to Caterpillar
|
Β | Β |
$
|
Β | Β | ||
|
(b)
|
Allocated
Commitment to CFSC
|
Β | Β |
$
|
Β | Β | ||
| Β | Β | Β | Β | Β | Β | Β | ||
| Β |
Aggregate
Outstanding Principal
|
Β | Β | Β | Β | Β | ||
| Β | Β | Β | Β | Β | Β | Β | Β | |
| Β |
Amount of
Revolving Credit Advances owing to the Assignor by:
|
Β | Β | Β | Β | Β | ||
| Β |
(a)
|
Caterpillar
|
Β | Β |
$
|
Β | Β | |
| Β |
(b)
|
CFSC
|
Β | Β |
$
|
Β | Β | |
| Β | Β | Β | Β | Β | Β | Β | ||
| Β |
[Amount of
Japan Local Currency Advances owing to the Assignor]
|
Β | Β | Β | Β | Β | ||
|
Β
SectionΒ Β 2.
|
Β | Β | Β | Β | Β | |||
| Β |
Notes, if
any,Β Β payable to the order of the Assignee
|
Β | Β | Β | Β | Β | ||
| Β |
(a)
|
Borrower:Β Β Caterpillar
Dated:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β _____________,
200_
|
Β | Β | Β | Β | Β | |
| Β |
(b)
|
Borrower:Β Β CFSC
Dated:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β _____________,
200_
|
Β | Β | Β | Β | Β | |
| Β | Β | Β | Β | Β | Β | Β | ||
| Β |
Notes, if
any, payable to the order of the Assignor
|
Β | Β | Β | Β | Β | ||
| Β |
(a)
|
Borrower:Β Β Caterpillar
Dated:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β _____________,
200_
|
Β | Β | Β | Β | Β | |
| Β |
(b)
|
Borrower:Β Β CFSC
Dated:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β _____________,
200_
|
Β | Β | Β | Β | Β | |
Β
|
SectionΒ Β 3.
|
Β | Β | Β | Β | Β | |
| Β |
Effective
Date 13:
|
Β | Β | Β |
________,
200_
|
|
|
Β
SectionΒ Β 4.
|
Β | Β | Β | Β | Β | |
| Β |
Domestic
Lending Office
|
Β | Β | Β | Β | |
| Β |
Eurocurrency
Lending Office
|
Β | Β | Β | Β | |
Β
13Β This date
should be no earlier than the date of acceptance by the Agent.
Β
Β
[NAME OF
ASSIGNOR]
By:___________________________
Β Β Β Β Β Β Title:
[NAME OF
ASSIGNEE]
By:___________________________
Β Β Β Β Β Title:
Β
Β
Accepted this _____
day
Β
of
_________________, 200_
Β
Β
[NAME OF AGENT], as
Agent
Β
By:___________________________
Β
Β Β Β Β Β Β Title:
Β
Β
[NAME OF JAPAN
LOCAL CURRENCY AGENT], as Japan Local Currency Agent
Β
By:___________________________
Β
Β Β Β Β Β Title:
Β
Agreed to
thisΒ _____ day of _____________,
200_ 14
Β
Β
CATERPILLAR
INC.
Β
By:___________________________
Β
Β Β Β Β Β Β Title:
Β
CATERPILLAR
FINANCIAL SERVICES CORPORATION
Β
By:___________________________
Β
Β Β Β Β Β Title:
Β
14Β To be included when consent of the Borrowers is required pursuant to Section 8.07(a)(ii).
Β
Β
Β
ASSUMPTION
AND ACCEPTANCE
Β
Dated
_______________, 200_
Β
Reference is made
to the Credit Agreement (364-Day Facility) dated as of September 18, 2008, as
the same may be amended, restated, supplemented or otherwise modified from time
to time (the βCredit Agreementβ) among Caterpillar Inc., Caterpillar Financial
Services Corporation, and Caterpillar Finance Corporation (the βBorrowersβ), the
Banks (as defined in the Credit Agreement), The Bank of Tokyo-Mitsubishi UFJ,
Ltd., as Japan Local Currency Bank and Citibank, N.A., as Agent for the Banks
(the βAgentβ).Β Β Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein with the same meaning.
Β
The Borrowers and
___________________ (the βAdded Bankβ) agree as follows:
Β
1.Β The Borrowers have
requested the Added Bank to [become a Bank under the Credit Agreement and to
accept and make a Commitment and Revolving Credit Commitment [and Japan Local
Currency Commitment] under the Credit Agreement in the amounts set forth on
Schedule 1
hereto]15 [increase its Commitment and Revolving Credit
Commitment [and Japan Local Currency Commitment] under the Credit Agreement to
the amounts set forth on Schedule 1
hereto]16 and the Added Bank has agreed to so [become a
Bank and accept and make a Commitment and Revolving Credit Commitment [and Japan
Local Currency Commitment] under the Credit Agreement in such amounts]17 [increase its Commitment and Revolving Credit
Commitment [and Japan Local Currency Commitment] under the Credit Agreement to
such amounts].18Β Β The Added Bank agrees, upon the
Effective Date of this Assumption and Acceptance, to purchase a participation in
any Revolving Credit Advances [Japan Local Currency Advances] which are
outstanding on the Effective Date in the amount determined pursuant to Section 2.05(d) of
the Credit Agreement.
Β
2.Β The Added Bank
hereby acknowledges and agrees that neither the Agent nor any Bank (i) has made
any representation or warranty, nor assumed any responsibility, with respect to
any statements, warranties or representations made in or in connection with the
Credit Agreement, the Japan Local Currency Addendum, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Japan Local Currency Addendum or any other instrument or document
furnished pursuant thereto; or (ii) has made any representation or warranty, nor
assumed any responsibility, with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under the Credit Agreement, the Japan Local Currency Addendum or any
other instrument or document furnished pursuant thereto.
Β
3.Β Following the
execution of this Assumption and Acceptance by the Added Bank and the Borrowers,
it will be delivered to the Agent for acceptance by the Agent.Β Β The
effective date of this Assumption and Acceptance shall be the date of acceptance
thereof by the Agent, unless a later date therefor is specified on Schedule 1 hereto
(the βEffective Dateβ).
Β
4.Β Upon such
acceptance by the Agent, as of the Effective Date, (i) the Added Bank shall, in
addition to the rights and obligations under the Credit Agreement held by it
immediately prior to the Effective Date, if any, have the rights and obligations
under the Credit Agreement that have been assumed by it pursuant to this
Assumption and Acceptance.
Β
5.Β Upon such
acceptance by the Agent, from and after the Effective Date, the Agent shall make
all payments under the Credit Agreement and the Notes, if any, in respect of the
Commitment and Revolving Credit Commitment [and Japan Local Currency Commitment]
assumed hereby (including, without limitation, all payments of principal,
interest and Facility Fees with respect thereto) to the Added Bank.
Β
6.Β This Assumption and
Acceptance shall be governed by, and construed in accordance with, the laws of
the State of New York (including Sections 5-1401 and 5-1402 of the General
Obligations Laws of the State of New York but otherwise without regard to the
conflict of law principles thereof).
Β
IN
WITNESS WHEREOF, the Added Bank and the Borrowers have caused this Assumption
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1
hereto.
Β
15Β Β Β Β Β Β Β Β Β Β Β To
be used if the Added Bank is not already a Bank under the Credit
Agreement.Β
16Β Β Β Β Β Β Β Β Β Β Β To
be used if the Added Bank is already a Bank under the Credit Agreement.Β
17Β Β Β Β Β Β Β Β Β Β Β To
be used if the Added Bank is not already a Bank under the Credit
Agreement.Β
18Β Β Β Β Β Β Β Β Β Β Β To
be used if the Added Bank is already a Bank under the Credit
Agreement.
Β
Β
Schedule
1
to
Assumption
and Acceptance
Dated __________,
200_
Β
|
SectionΒ Β 1.
|
Β | Β | Β | ||
| Β |
Added Bankβs
Commitment after giving effect to this Assumption and
Acceptance:
|
$
|
Β | Β | |
| Β |
Added Bankβs
Revolving Credit Commitment after giving effect to this Assumption and
Acceptance:
|
$
|
Β | Β | |
| Β |
[Added Bankβs
Japan Local Currency Commitment after giving effect to this Assumption and
Acceptance:
|
$
|
Β |
]
|
|
| Β | Β | Β | Β | Β | |
|
SectionΒ Β 2.
|
Β | Β | Β | ||
| Β |
Effective
Date 19:
|
Β |
________,
200_
|
||
| Β | Β | Β | Β | Β | |
|
SectionΒ Β 3.
|
Β | Β | Β | ||
| Β |
Domestic
Lending Office
|
Β | Β | Β | |
| Β |
Eurocurrency
Lending Office
|
Β | Β | Β | |
| Β |
[Japan Local
Currency Lending Office
|
Β | Β |
]
|
|
| Β | Β | Β | Β | Β | Β |
CATERPILLAR
INC.
By:___________________________
Β Β Β Β Β Β Title:
CATERPILLAR
FINANCIAL
SERVICES
CORPORATION
By:___________________________
Β Β Β Β Β Β Title:
CATERPILLAR FINANCE
CORPORATION
By:___________________________
Β Β Β Β Β Β Title:
Β
[NAME OF ADDED
BANK]
By:___________________________
Β Β Β Β Β Β Title:
Β
Β
Accepted this _____
day
Β
of
_________________, 200_
Β
[NAME OF
AGENT]
Β
By:___________________________
Β
Β Β Β Β Β Title:
Β
Β
Β
FORM
OF OPINION OF COUNSEL
FOR
EACH OF CATERPILLAR AND CFSC
Β
[Closing
Date]
Β
Β
To
each of the Banks parties
to
the Credit Agreement
(364-Day Facility)
dated as of
September 18, 2008,
among
Caterpillar Inc.,
Caterpillar
Financial Services
Corporation,
Caterpillar Finance
Corporation,
said Banks,
Citibank, N.A., as Agent,
and The Bank
of
Tokyo-Mitsubishi
UFJ, Ltd., as Japan
Local Currency
Agent
Β
Β
Re:Β Β [Name
of Applicable Borrower]
Ladies and
Gentlemen:
Β
I
am [General Counsel/General Attorney] of [Name of Applicable Borrower], a [Type
of Organization] (the βBorrowerβ), and give this opinion pursuant to Section 3.01(d) of
the Credit Agreement (364-Day Facility) dated as of September 18, 2008 (the
βCredit Agreementβ), among the Borrower, [names of other Borrowers under the
Credit Agreement], the Banks parties thereto, The Bank of Tokyo-Mitsubishi UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for said
Banks.Β Β Terms defined in the Credit Agreement are used herein as
therein defined.
Β
I
have examined the Credit Agreement; [the Japan Local Currency Addendum;] the
documents furnished by the Borrower pursuant to Article III of the
Credit Agreement; the [Certificate of Incorporation] of the Borrower and all
amendments thereto (the βCharterβ); and the [bylaws] of the Borrower and all
amendments thereto (the βBylawsβ).Β Β In addition, I have examined the
originals, or copies certified to my satisfaction, of such other corporate
records of the Borrower, certificates of public officials, and agreements,
instruments and other documents, and have conducted such other investigations of
fact and law, as I have deemed necessary or advisable for purposes of this
opinion.
Β
In
rendering my opinion, I have assumed the due authorization, execution and
delivery of each document referred to herein by all parties to such document
other than the Borrower.
Β
Based upon the
foregoing, and subject to the comments and qualifications set forth below, it is
my opinion that:
Β
1.Β The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the [INSERT APPROPRIATE JURISDICTION] and is duly qualified to transact
business and is in good standing as a foreign corporation in every jurisdiction
in which failure to qualify may materially adversely affect (i) the financial
condition or operations of the Borrower and its consolidated Subsidiaries taken
as a whole or (ii) the ability of the Borrower to perform its obligations under
the Credit Agreement [, the Japan Local Currency Addendum]20 and its Notes.
Β
2.Β The execution,
delivery and performance by the Borrower of the Credit Agreement [,the Japan
Local Currency Addendum]21 and the Notes to be executed by it are within
the Borrowerβs corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene, or constitute a default under (i) the
Charter or the Bylaws or (ii) in any material respect, any law, rule or
regulation applicable to the Borrower or (iii) any material agreement, judgment,
injunction, order, decree or other material instrument binding upon the
Borrower.
Β
3.Β No authorization,
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by the Borrower of the Credit Agreement [, the Japan Local Currency
Addendum]22 and the Notes to be executed by
it.
Β
4.Β The Credit
Agreement [, the Japan Local Currency Addendum]23 and its Notes have been duly executed and
delivered by a duly authorized officer of the Borrower.Β Β Assuming that
the Agent, the Japan Local Currency Agent, and each Bank party to the Credit
Agreement as of the date hereof have duly executed and delivered the Credit
Agreement and that each such Bank has notified the Agent that such Bank has
executed the Credit Agreement, [, and assuming that the Japan Local Currency
Agent and each Japan Local Currency Bank party to the Japan Local Currency
Addendum as of the date hereof have duly executed and delivered the Japan Local
Currency Addendum and that each such Japan Local Currency Bank has notified the
Agent that such Japan Local Currency Bank has executed the Japan Local Currency
Addendum] the Credit Agreement is, [the Japan Local Currency Addendum is,] the
Notes executed and delivered by the Borrower on or prior to the date hereof are,
and any other Notes when executed and delivered by the Borrower pursuant to the
terms of the Credit Agreement will be, the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their
respective terms, except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting creditorsβ rights generally and by the effect of general principles
of equity.
Β
5.Β There is no pending
or, to the best of my knowledge, threatened action or proceeding affecting the
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator, which purports to affect the legality, validity or enforceability of
the Credit Agreement [,the Japan Local Currency Addendum,] or any Note or which
is reasonably likely to materially adversely affect (i) the financial condition
or operations of the Borrower and its consolidated Subsidiaries taken as a whole
or (ii) the ability of the Borrower to perform its obligations under the Credit
Agreement [,the Japan Local Currency Addendum] and the Notes to be executed by
it.
Β
I
express no opinion as to (i) Sections 2.13 and
8.05 of the
Credit Agreement, insofar as they provide that any Bank purchasing a
participation from another Bank pursuant thereto to may exercise set-off or
similar rights with respect to such participation or that any Affiliate of a
Bank may exercise set-off or similar rights with respect to such Bankβs claims
under the Credit Agreement or the Notes or (ii) Section 2.12(c),
7.09 or 8.04(c), to the
extent that any such section may be construed as requiring indemnification with
respect to a claim, damage, liability or expense incurred as a result of any
violation of law by a Bank, the Agent [or the Japan Local Currency
Agent].
Β
I
am qualified to practice law in the State of [_______] and do not purport to be
an expert on, or to express any opinion concerning, any laws other than the law
of the State of [_______], the General Corporation Law of the State of Delaware
and the federal law of the United States.Β Β Insofar as the opinions
expressed in paragraphs 2, 3 and 4 above relate to matters which are governed by
the laws of the State of New York, I have assumed for purposes of rendering such
opinions that the applicable laws of the State of New York are substantially
identical to the laws of the State of [_______].
Β
This opinion is
limited to the matters expressly set forth herein, and no opinion is implied or
may be inferred beyond the matters expressly set forth herein.Β Β The
opinions expressed herein are being delivered to you as of the date hereof in
connection with the transactions described hereinabove and are solely for your
benefit in connection with the transactions described hereinabove and may not be
relied on in any manner or for any purpose by any other Person, nor any copies
published, communicated or otherwise made available in whole or in part to any
other Person without my specific prior written consent, except that you may
furnish copies thereof (i) to any of your permitted successors and assigns in
respect of the Credit Agreement, the Japan Local Currency Addendum and the
Notes, (ii) to your independent auditors and attorneys, (iii) upon the request
of any state or federal authority or official having regulatory jurisdiction
over you, and (iv) pursuant to order or legal process of any court or
governmental agency.
Β
Very truly
yours,
Β
21Β Β For
CFSC opinion.Β
22Β Β For
CFSC opinion.Β
23Β Β For
CFSC opinion.
Β
Β
Β
OPINION
OF SPECIAL NEW YORK COUNSEL
TO
THE AGENT
[Closing
Date]
Β
To
the Banks listed on Exhibit A
hereto and to
Citibank, N.A.,
as
Agent, and The
Bank of
Tokyo-Mitsubishi UFJ, Ltd., as
Japan Local
Currency Agent
Β
Β
|
Β
|
Re:
|
Caterpillar
Inc., Caterpillar Financial Services Corporation and Caterpillar Finance
CorporationΒ Β (collectively, the βBorrowersβ and individually a
βBorrowerβ)
|
Β
Ladies and
Gentlemen:
Β
We
have acted as special New York counsel to Citibank, N.A. (βCitibankβ),
individually and as Agent, in connection with the preparation, execution and
delivery of the Credit Agreement (364-Day Facility) dated as of September 18,
2008 (βCredit Agreementβ), among the Borrowers, the Banks party thereto, The
Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank,
as Agent for the Banks.Β Β Terms defined in the Credit Agreement are
used herein as therein defined.
Β
In
that connection, we have examined the following documents:
Β
(1)Β Β Β Β Counterparts of the
Credit Agreement and the Japan Local Currency Addendum, executed by each of the
parties thereto.
Β
(2)Β Β Β Β The opinion of Xxxxxx
X. Xxxxxx, internal counsel for Caterpillar Inc. (βCaterpillar), dated as of the
date hereof.
Β
(3)Β Β Β Β The opinion of
Xxxxxxx X. Xxxxxxx, internal counsel for Caterpillar Financial Services
Corporation (βCFSCβ), dated as of the date hereof.
Β
In
our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the genuineness
of all signatures, the due authority of the parties executing such documents,
and the conformity to the originals of all such documents submitted to us as
copies.Β Β We have also assumed that each of the Banks, the Japan Local
Currency AgentΒ Β and the Agent have duly executed and delivered the
Credit Agreement and the Japan Local Currency Addendum, as applicable, with all
necessary power and authority (corporate and otherwise).
Β
To
the extent that our opinion expressed below involves conclusions as to the
matters set forth in the opinions of counsel referred to in items (2) and (3)
above, we have assumed without independent investigation the correctness of the
matters set forth therein.
Β
Based upon the
foregoing examination of documents and assumptions, and subject to the
qualifications contained herein, and upon such other investigation as we have
deemed necessary, we are of the opinion that (a) the Credit Agreement is, and
the Notes executed by each of Caterpillar and CFSC and delivered on or prior to
the date hereof are, the legal, valid and binding obligations of each of
Caterpillar and CFSC, respectively, enforceable against such Borrower in
accordance with their respective terms; and (b) the Japan Local Currency
Addendum is the legal, valid and binding obligation of CFSC, enforceable against
CFSC in accordance with its terms.
Β
Our opinion above
is subject to the following qualifications:
Β
(a)Β Our opinion above
is subject to the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing.Β Β In applying such principles, a court, among other things,
might not allow a creditor to accelerate maturity of a debt upon the occurrence
of a default deemed immaterial or might decline to order a debtor to perform
covenants.Β Β Such principles applied by a court include a requirement
that a creditor act with reasonableness and in good faith.
Β
(b)Β Our opinion above
is also subject (i) to the effect of any applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar law affecting
creditorsβ rights generally and (ii) to the effect of any federal or state law,
rule or regulation (including any federal or state securities law, rule or
regulation) or public policy, to the extent that such law, rule, regulation or
public policy limits rights to indemnification.
Β
(c)Β Our opinion above
is limited to the law of the State of New York and the federal law of the United
States, and we do not express any opinion herein concerning any other
law.Β Β Without limiting the generality of the foregoing, we express no
opinion as to (i) the effect of the law of any jurisdiction, other than the
State of New York, wherein any Bank may be located or wherein enforcement of the
Credit Agreement, the Japan Local Currency AddendumΒ Β or the Notes may
be sought which limits the rates of interest legally chargeable or collectible,
or (ii) whether any of the Banks is βdoing businessβ in the State of New
York.
Β
(d)Β We express no
opinion as to the effect of the compliance or noncompliance of the Agent, the
Japan Local Currency AgentΒ Β or any of the Banks with any state or
federal laws or regulations applicable to any such party because of such partyβs
legal or regulatory status, the nature of such partyβs business or the authority
of any party to conduct business in any jurisdiction.
Β
(e)Β We express no
opinion as to (i)Β SectionsΒ 2.13 or 8.05 of the Credit Agreement, or
any comparable provisions under the Japan Local Currency Addendum, insofar as
they provide that any Bank purchasing a participation from another Bank pursuant
thereto may exercise set-off or similar rights with respect to such
participation or that any Affiliate of a Bank may exercise set-off or similar
rights with respect to such Bankβs claims under the Credit Agreement, the Japan
Local Currency Addendum or the Notes; (ii) Sections 2.12(c) or 8.04(c) of the
Credit Agreement or any comparable provisions of the Japan Local Currency
Addendum, to the extent that any such section or provision may be construed as
requiring indemnification with respect to a claim, damage, liability or expense
incurred as a result of any violation of law by a Bank or the Agent; (iii) the
first sentence of Section 8.08(b) of the Credit Agreement, or any comparable
provisions of the Japan Local Currency Addendum, insofar as any such provision
relates to the subject matter jurisdiction of the United States District Court
to adjudicate any controversy related to the Credit Agreement; or (iv) Sections
8.10Β Β or 8.12, the last sentence of Section 8.08(b) of the Credit
Agreement or any comparable provisions of the Japan Local Currency
Addendum.
Β
(f)Β We express no
opinion as to the legality, validity or enforceability of any of the Credit
Agreement or the Japan Local Currency Addendum with regard to or as against
Caterpillar Finance Corporation (βCFCβ), nor shall any of the opinions contained
herein be construed to apply to CFC.
Β
This opinion is
limited to the matters expressly set forth herein, and no opinion is implied or
may be inferred beyond the matters expressly set forth herein.Β Β The
opinion expressed herein is being delivered to you as of the date hereof in
connection with the transactions described hereinabove and is solely for your
benefit in connection with the transactions described hereinabove and may not be
relied on in any manner for any other purpose and may not be relied on for any
purposeΒ Β by any other person, nor any copies published, communicated
or otherwise made available in whole or in part to any other person or entity
without our specific prior written consent, except that you may furnish copies
thereof (i) to any of your permitted successors and assigns in respect of the
Credit Agreement, the Japan Local Currency Addendum and the Notes, (ii) to your
independent auditors and attorneys, (iii) upon the request of any state or
federal authority or official having regulatory jurisdiction over you, and (iv)
pursuant to order or legal process of any court or governmental
agency.Β Β The opinion expressed herein is based solely on factual
matters in existence as of the date hereof and laws and regulations in effect on
the date hereof, and we assume no obligation to revise or supplement this
opinion letter to reflect any matters which may hereafter come to our attention,
or should such factual matters change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or
otherwise.
Β
Very truly
yours,
Β
EXHIBIT
A
to
the Opinion
of
Sidley Austin LLP
Β
Banks
Β
Citibank,
N.A.
[Banks]
Β
Β
COMPLIANCE
CERTIFICATE
CATERPILLAR
INC.
Β
To:Β Β Β Β Β The Banks
which are parties to the
Credit Agreement
described below
Β
This Compliance
Certificate is furnished pursuant to that certain Credit Agreement (364-Day
Facility) dated as of September 18, 2008, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the βAgreementβ) among
Caterpillar Inc., Caterpillar Financial Services Corporation and Caterpillar
Finance Corporation (collectively, the βBorrowersβ), the Banks party thereto,
The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent and
Citibank, N.A., as agent for the Banks.Β Β Capitalized terms used and
not otherwise defined herein shall have the meanings attributed to such terms in
the Agreement.
Β
THE UNDERSIGNED
HEREBY CERTIFIES THAT:
Β
1.Β Β Β Β I am the duly
elected ______________ of Caterpillar Inc. (the βBorrowerβ).
Β
2.Β Β Β Β I have reviewed the
terms of the Agreement and I have made, or have caused to be made under my
supervision, a detailed review of the transactions and conditions of the
Borrower and its Subsidiaries during the accounting period covered by the
attached financial statements.
Β
3.Β Β Β Β The examinations
described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or event which constitutes an Event of Default with
respect to the Borrower during or at the end of the accounting period covered by
the attached financial statements or as of the date hereof.
Β
4.Β Β Β Β As required
pursuant to Section
5.03 of the Agreement, the Borrowerβs Consolidated Net Worth, as of the
end of the accounting period covered by the attached financial statements, is
not less than an amount equal to 75% of the Borrowerβs Consolidated Net Worth as
of the end of the last fiscal year, as shown below.
Β
|
a.
|
Consolidated
Net Worth
|
$
|
Β |
|
b.
|
75% of
Consolidated Net Worth as of the end of
the last fiscal year
|
$
|
Β |
| Β | Β | Β | Β |
| Β | Β | Β | Β |
Β
The foregoing
certifications and the financial statements delivered with this Certificate in
support hereof, are made and delivered this _____ day of __________,
200_.
Β
CATERPILLAR
INC.
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
Β
Β
Β
COMPLIANCE
CERTIFICATE
CATERPILLAR
FINANCIAL SERVICES CORPORATION
Β
To:Β Β Β Β The Banks which are
parties to the
Β Β Β Β Β Β Β Β Credit Agreement
described below
Β
This Compliance
Certificate is furnished pursuant to that certain Credit Agreement (364-Day
Facility) dated as of September 18, 2008, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the βAgreementβ) among
Caterpillar Inc., Caterpillar Financial Services Corporation and Caterpillar
Finance Corporation (collectively, the βBorrowersβ), the Banks party thereto,
and The Bank of Tokyo-Mitsubishi UFJ Ltd., as Japan Local Currency Agent,
Citibank, N.A., as agent for the Banks.Β Β Capitalized terms used and
not otherwise defined herein shall have the meanings attributed to such terms in
the Agreement.
Β
THE UNDERSIGNED
HEREBY CERTIFIES THAT:
Β
1.Β Β Β Β I am the duly
elected ______________ of Caterpillar Financial Services Corporation (the
βBorrowerβ).
Β
2.Β Β Β Β I have reviewed the
terms of the Agreement and I have made, or have caused to be made under my
supervision, a detailed review of the transactions and conditions of the
Borrower and its Subsidiaries during the accounting period covered by the
attached financial statements.
Β
3.Β Β Β Β The examinations
described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or event which constitutes an Event of Default with
respect to the Borrower during or at the end of the accounting period covered by
the attached financial statements or as of the date hereof.
Β
4.Β Β Β Β As required
pursuant to Section
5.04(a) of the Agreement, the Borrowerβs Leverage Ratio as of the end of
the accounting period covered by the attached financial statements, is not
greater than 10.0 to 1, as shown below.
Β
|
(a)
|
CFSC
Consolidated Debt
|
$
|
Β | |
|
(b)
|
CFSCβs
Consolidated Net Worth
|
$
|
Β | |
| Β |
(i)
|
Stockholdersβ
equity
|
$
|
Β |
| Β |
(ii)
|
Accumulated
Other Comprehensive Income
|
$
|
Β |
|
(c)
|
Leverage
Ratio (aΓ·b)
|
$
|
Β | |
Β
5.Β Β Β Β As required
pursuant to Section
5.04(b) of the Agreement, the ratio of (1) the Borrowerβs net earnings
before provision for income taxes and Interest Expense to (2) Interest Expense,
computed as of the end of the accounting period covered by the attached
financial statements, is not less than 1.15 to 1, as shown below.
Β
|
(a)
|
Net earnings
before income taxes and Interest Expense
|
$
|
Β |
|
(b)
|
Interest
Expense
|
$
|
Β |
|
(c)
|
Ratio of net
earnings before income taxes and Interest Expense to Interest Expenses
(aΓ·b)
|
$
|
Β |
Β
The foregoing
certifications and the financial statements delivered with this Certificate in
support hereof, are made and delivered this _____ day of __________,
200_.
Β
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
Β
CATERPILLAR
FINANCE CORPORATION
JAPAN
LOCAL CURRENCY ADDENDUM
Β
JAPAN LOCAL
CURRENCY ADDENDUM, dated as of September 18, 2008, 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.
Β
ARTICLE
I
Definitions
Β
SECTION 1.01.Β Β Defined
Terms.Β Β As used in this Addendum, the following terms
shall have the meanings specified below:
Β
βCredit Agreementβ
means the Credit Agreement (364-Day Facility), dated as of September 18, 2008,
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.
Β
βJapan Local Currency
Advanceβ means any Advance, denominated in Japanese Yen, made to CFC
pursuant to SectionsΒ 2.03A
and 2.03B of
the Credit Agreement and this Addendum.Β Β A Japan Local Currency
Advance shall bear interest at the rate specified in ScheduleΒ II.
Β
βJapan Local Currency
Bankβ 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.
Β
SECTION 1.02.Β Β Terms
Generally.Β Β Unless otherwise defined herein, terms
defined in the Credit Agreement shall have the same meanings in this
Addendum.Β Β Wherever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms.Β Β The words
βincludeβ, βincludesβ and βincludingβ shall be deemed to be followed by the
phrase βwithout limitationβ.Β Β 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.
Β
ARTICLE
II
The
Credits
Β
SECTION 2.01.Β Β Japan
Local Currency Advances.Β
Β
(a)Β Β This
Addendum (as the same may be amended, waived, modified or restated from time to
time) is the βJapan Local Currency Addendumβ 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.
Β
(b)Β Β 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 ScheduleΒ II.Β Β If
Schedule II
states βNoneβ or βSame as Credit Agreementβ 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.
Β
(c)Β Β 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 ScheduleΒ III.Β Β 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.
Β
SECTION 2.02.Β Β Maximum
Borrowing Amounts.Β Β (a)Β Β 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.
Β
(b)Β Β Upon
at least five (5) Business Days prior irrevocable written notice to the Agent,
the JapanΒ Β 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
JapanΒ Β 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.Β Β 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.
Β
ARTICLE
III
Representations
and Warranties
Β
Each of CFSC and
CFC makes and confirms each representation and warranty applicable to it or any
of its Subsidiaries contained in ArticleΒ IV of
the Credit Agreement.Β Β 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.
Β
ARTICLE
IV
Miscellaneous
Provisions
Β
SECTION 4.01.Β Β Amendment;
Termination.Β Β (a)Β Β 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 SectionΒ 8.01 of
the Credit Agreement.
Β
(b)Β Β 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
JapanΒ Β 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.
Β
SECTION 4.02.Β Β Assignments.Β Β SectionΒ 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.
Β
SECTION 4.03.Β Β Notices,
Etc.Β Β Except as otherwise provided herein, all notices,
demands, requests, consents and other communications provided for hereunder
shall be given in writing or by any telecommunication device capable of creating
a written record (including electronic mail), and addressed to the party to be
notified as follows:
Β
(a)Β Β Β Β if to CFC, at
Caterpillar Finance Corporation, SBS Tower 00X, 0-00-0 Xxxx, Xxxxxxxx-xx, Xxxxx
158-0097, Japan, Attention:Β Β Managing Director (Facsimile
No.Β Β 000-0000-0000, with a copy to CFSC at its address and telecopy
number referenced in SectionΒ 8.02 of
the Credit Agreement;
Β
(b)Β Β Β Β if to CFSC, at its
address and telecopy number referenced in Section 8.02 of the
Credit Agreement;
Β
(c)Β Β Β Β 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:Β Β Xx. Xxx Xxxxxx (Telecopy
No.:Β Β 00-0000-0000 / 00-0-0000-0000) with a copy to the Agent at its
address and telecopy number referenced in SectionΒ 8.02 of
the Credit Agreement;
Β
(d)Β Β Β Β if to a Japan Local
Currency Bank, at its address (and telecopy number) set forth in ScheduleΒ I or in
the Assignment and Acceptance or Assumption and Acceptance pursuant to which
such Japan Local Currency Bank became a party hereto;
Β
(e)Β Β Β Β if to the Agent, at
its address at Bank Loan Syndications, 0000 Xxxxx Xx., Xxx Xxxxxx, Xxxxxxxx
00000, Attention:Β Β Bank Loan Syndications, Telecopier No.
000-000-0000, with a copy to Citicorp North America, Inc., 000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:Β Β Xxxxxxxx
XβXxxxxxx;
Β
or
as to each party, at such other address as shall be designated by such party in
a written notice to the other parties.
Β
All notices,
demands, requests, consents and other communications described in this Section 4.03 shall be
effective (i)Β if delivered by hand, including any overnight courier
service, upon personal delivery, (ii)Β if delivered by mail, when deposited
in the mails and (iii)Β if delivered by electronic mail or any other
telecommunications device, when transmitted to an electronic mail address (or by
another means of electronic delivery) as provided in this Section 4.03; provided, however,
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.
Β
SECTION 4.04.Β Β Ratification
of Guaranty.Β Β 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.
Β
SECTION 4.05.Β Β Sharing
of Payments, Etc.Β Β 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 Bankβs ratable share (according to the proportion of (i) the
amount of such other Japan Local Currency Bankβs 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.Β Β 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.
Β
SECTION 4.06.Β Β Applicable
Law.Β Β THIS ADDENDUM SHALL BE GOVERNED BY AND INTERPRETED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW
YORK BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
Β
SECTION 4.07Β Β Execution
in Counterparts.Β Β 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.
Β
ARTICLE
V
The
Japan Local Currency Agent
Β
SECTION 5.01Β Β Appointment;
Nature of Relationship.Β Β 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.Β Β The Japan Local
Currency Agent agrees to act as such contractual representative upon the express
conditions contained in this Article
V.Β Β Notwithstanding the use of the defined term βJapan Local
Currency Agent,β 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 BankΒ Β 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.Β Β In its capacity as the Japan Local
Currency Banksβ contractual representative, the Japan Local Currency Agent (i)
does not assume any fiduciary duties to any of the Banks, (ii) is a
βrepresentativeβ 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.Β Β 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.
Β
SECTION 5.02Β Β Powers.Β Β 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.Β Β 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.
Β
SECTION 5.03Β Β General
Immunity.Β Β 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.
Β
SECTION 5.04Β Β No
Responsibility for Advances, Creditworthiness, Collateral, Recitals,
Etc.Β Β [Intentionally Omitted. See Sections 7.03 and
7.04 of the
Credit Agreement for these provisions.]
Β
SECTION 5.05Β Β Action on
Instructions of Japan Local Currency Banks.Β Β 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.Β Β 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.
Β
SECTION 5.06Β Β Employment
of Agents and Counsel.Β Β 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.Β Β 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.
Β
SECTION 5.07Β Β Reliance
on Documents; Counsel.Β Β [Intentionally Omitted. See
Section 7.03 of
the Credit Agreement for these provisions.]
Β
SECTION 5.08Β Β Other
Transactions.Β Β 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.
Β
SECTION 5.09 Bank
Credit Decision.Β Β [Intentionally Omitted. See Section 7.07 of the
Credit Agreement for these provisions.]
Β
SECTION 5.10Β Β Successor
Japan Local Currency Agent.Β Β 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.Β Β 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
resigningΒ Β 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.Β Β 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 Agentβs giving notice of resignation or the
Majority Japan Local Currency Banksβ 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.Β Β 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.Β Β Such successor Japan Local Currency Agent shall be a
commercial bank having capital and retained earnings of at least
$500,000,000.Β Β 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.Β Β After any retiring Japan Local Currency Agentβs
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.
Β
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.
Β
CATERPILLAR FINANCE
CORPORATION
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
Β
CITIBANK, N.A., as
the Agent
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
Β
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Agent
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
Β
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Bank
By:___________________________
Β Β Β Β Β Β Name:
Β Β Β Β Β Β Title:
Β
SCHEDULE
I
to
Japan Local Currency Addendum
Β
Japan Local
Currency Banks
Japan Local
Currency Commitments
Total Japan Local
Currency Commitment
Applicable Lending
Office
Β
|
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:Β Β Xx.
Xxx Xxxxxx
(Telephone
No.:Β Β 00-0000-0000 / 00-0-0000-0000)
(Facsimile
No.:Β Β 00-0000-0000 /
00-0-0000-0000)
|
Β
SCHEDULE
II
to
Japan Local Currency Addendum
Β
MODIFICATIONS
Β
1.Β Β Β Β Business Day
Definition:Β βBusiness
Dayβ:Β Β Same as Credit Agreement.
Β
2.Β Β Β Β Interest Payment
Dates:Β Β Same as Credit Agreement.Β Β (See Section 2.07 of
Credit Agreement).
Β
3.Β Β Β Β Interest
Periods:Β Β Same as Credit Agreement.Β Β (See definition
of βInterest Periodβ, Section 1.01,
and
Section 2.07(d)
of Credit Agreement).
Β
4.Β Β Β Β Interest
Rates:
Β
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 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.Β Β 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 sum of (i) the Japan Base Rate
plus (ii) the
Applicable Margin in effect from time to time during such Interest
Period.Β Β 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.
Β
5.Β Β Β Β Other:
Β
Additional
Conditions Precedent:Β Β None
Β
Current Termination
Date for Addendum:Β Β The βCurrent Termination Dateβ under the Credit
Agreement.
Β
Extended
Termination Date for Addendum: The βExtended Termination Dateβ under the Credit
Agreement.
Β
Term Loan Repayment
Date: The βTerm Loan Repayment Dateβ under the Credit Agreement.
Β
Prepayment
Notices:Β Β 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.
Β
SCHEDULE
III
to
Japan Local Currency Addendum
Β
OTHER
PROVISIONS
Β
1.Β Β Β Β Borrowing
Procedures:
Β
Β Β Β Β (a)Β Β Β Β 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),Β Β and the Japan Local Currency Agent shall give each Japan
Local Currency Bank prompt notice thereof in accordance with Section
4.03.
Β
Β Β Β Β (b)Β Β Β Β 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.
Β
2.Β Β Β Β Funding
Arrangements:
Β
Minimum
amounts/increments for Japan Local Currency Borrowings, repayments and
prepayments:
Β
Same as Credit
Agreement.
Β
3.Β Β Β Β Promissory
Notes:Β Β None required.
Β
Β
