CATERPILLAR FINANCE CORPORATION JAPAN LOCAL CURRENCY ADDENDUM
EXHIBIT
99.2
CATERPILLAR
FINANCE CORPORATION
JAPAN
LOCAL CURRENCY ADDENDUM
JAPAN LOCAL
CURRENCY ADDENDUM, dated as of September 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.
ARTICLE
I
Definitions
SECTION 1.01. Defined
Terms. As used in this Addendum, the following terms
shall have the meanings specified below:
“Credit Agreement”
means the Credit Agreement (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.
“Japan Local Currency
Advance” means any Advance, denominated in Japanese Yen, made to CFC
pursuant to Sections 2.03A
and 2.03B of
the Credit Agreement and this Addendum. A Japan Local Currency
Advance shall bear interest at the rate specified in Schedule II.
“Japan Local Currency
Bank” means each Bank listed on the signature pages of this Addendum or
which becomes a party hereto pursuant to an Assignment and Acceptance or an
Assumption and Acceptance.
SECTION 1.02. Terms
Generally. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have the same meanings in this
Addendum. Wherever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. All references herein to Sections and
Schedules shall be deemed references to Sections of and Schedules to this
Addendum unless the context shall otherwise require.
ARTICLE
II
The
Credits
SECTION 2.01. Japan
Local Currency Advances.
(a) This Addendum (as the
same may be amended, waived, modified or restated from time to time) is the
“Japan Local Currency Addendum” as defined in the Credit Agreement and is,
together with the borrowings made hereunder, subject in all respects to the
terms and provisions of the Credit Agreement except to the extent that the terms
and provisions of the Credit Agreement are modified by or are inconsistent with
this Addendum, in which case this Addendum shall control.
(b) Any modifications to
the interest payment dates, Interest Periods, interest rates and any other
special provisions applicable to Japan Local Currency Advances under this
Addendum are set forth on Schedule II. If
Schedule II
states “None” or “Same as Credit Agreement” with respect to any item listed
thereon, then the corresponding provisions of the Credit Agreement, without
modification, shall govern this Addendum and the Japan Local Currency Advances
made pursuant to this Addendum.
(c) Any special borrowing
procedures or funding arrangements for Japan Local Currency Advances under this
Addendum, any provisions for the issuance of promissory notes to evidence the
Japan Local Currency Advances made hereunder and any additional information
requirements applicable to Japan Local Currency Advances under this Addendum are
set forth on Schedule III. If
no such special procedures, funding arrangements, provisions or additional
requirements are set forth on Schedule III, then
the corresponding procedures, funding arrangements, provisions and information
requirements set forth in the Credit Agreement shall govern this
Addendum.
SECTION 2.02. Maximum
Borrowing Amounts.
(a) The Total Japan Local
Currency Commitment, and the Japan Local Currency Commitment for each Japan
Local Currency Bank party to this Addendum as of the date hereof, are set forth
on Schedule
I.
(b) Upon at least five
(5) Business Days prior irrevocable written notice to the Agent, the
Japan Local Currency Agent and the Japan Local Currency Banks, CFC
may from time to time permanently reduce the Total Japan Local Currency
Commitment under this Addendum in whole, or in part ratably among the
Japan Local Currency Banks, in an aggregate minimum Dollar Amount of
$1,000,000, and integral multiples of $1,000,000 in excess thereof; provided, however, that the
amount of the Total Japan Local Currency Commitment may not be reduced below the
aggregate principal amount of the outstanding Japan Local Currency Advances with
respect thereto. Any such reduction shall be allocated pro rata among
all the Japan Local Currency Banks party to this Addendum by reference to their
Japan Local Currency Commitments.
ARTICLE
III
Representations
and Warranties
Each of CFSC and
CFC makes and confirms each representation and warranty applicable to it or any
of its Subsidiaries contained in Article IV of
the Credit Agreement. Each of CFSC and CFC represents and warrants to
each of the Japan Local Currency Banks party to this Addendum that no Event of
Default, or event which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, has occurred and is
continuing, and no Event of Default, or event which would constitute an Event of
Default but for the requirement that notice be given or time elapse or both,
shall arise as a result of the making of Japan Local Currency Advances hereunder
or any other transaction contemplated hereby.
ARTICLE
IV
Miscellaneous
Provisions
SECTION 4.01. Amendment;
Termination.
(a) This Addendum
(including the Schedules hereto) may not be amended without the prior written
consent of the Majority Japan Local Currency Banks hereunder and subject to the
provisions of Section 8.01 of
the Credit Agreement.
(b) This Addendum may not
be terminated without the prior written consent of each Japan Local Currency
Bank party hereto, CFSC and CFC unless there are no Japan Local
Currency Advances outstanding hereunder, in which case no such consent of any
Japan Local Currency Bank shall be required; provided, however, that this
Addendum shall terminate on the date that the Credit Agreement terminates in
accordance with its terms.
SECTION 4.02. Assignments. Section 8.07 of
the Credit Agreement shall apply to assignments by Japan Local Currency Banks of
obligations, Japan Local Currency Commitments and Japan Local Currency Advances
hereunder; provided, however, that a Japan
Local Currency Bank may not assign any obligations, Japan Local Currency
Commitments or rights hereunder to any Person which is not (or does not
simultaneously become) a Bank under the Credit Agreement.
SECTION 4.03. Notices,
Etc. 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:
(a) if to CFC, at
Caterpillar Finance Corporation, SBS Tower 00X, 0-00-0 Xxxx, Xxxxxxxx-xx, Xxxxx
158-0097, Japan, Attention: Managing Director (Facsimile
No. 000-0000-0000, with a copy to CFSC at its address and telecopy
number referenced in Section 8.02 of
the Credit Agreement;
(b) if to CFSC, at its
address and telecopy number referenced in Section 8.02 of the
Credit Agreement;
(c) if to the Japan Local
Currency Agent, at The Bank of Tokyo-Mitsubishi UFJ, Ltd., Corporate Banking
Division No. 3, Corporate Banking Group, 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxx, Xxxxx, Xxxxxxxxx: Xx. Xxx Xxxxxx (Telecopy
No.: 00-0000-0000 / 00-0-0000-0000) with a copy to the Agent at its
address and telecopy number referenced in Section 8.02 of
the Credit Agreement;
(d) if to a Japan Local
Currency Bank, at its address (and telecopy number) set forth in Schedule I or in
the Assignment and Acceptance or Assumption and Acceptance pursuant to which
such Japan Local Currency Bank became a party hereto;
(e) if to the Agent, at
its address at Bank Loan Syndications, 0000 Xxxxx Xx., Xxx Xxxxxx, Xxxxxxxx
00000, Attention: Bank Loan Syndications, Telecopier No.
000-000-0000, with a copy to Citicorp North America, Inc., 000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx
X’Xxxxxxx;
or
as to each party, at such other address as shall be designated by such party in
a written notice to the other parties.
All notices,
demands, requests, consents and other communications described in this Section 4.03 shall be
effective (i) if delivered by hand, including any overnight courier
service, upon personal delivery, (ii) if delivered by mail, when deposited
in the mails and (iii) 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.
SECTION 4.04. Ratification
of Guaranty. By its execution of this Addendum, CFSC
ratifies and confirms its guaranty contained in Article IX of the
Credit Agreement with respect to the Japan Local Currency Advances made pursuant
to this Addendum which Guaranty remains in full force and effect.
SECTION 4.05. Sharing
of Payments, Etc. If any Japan Local Currency Bank
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Japan Local Currency
Advances made by it (other than pursuant to Section 2.02(c),
2.05(d), 2.10, 2.12 or 8.04 of the Credit
Agreement) in excess of its ratable share of payments on account of the Japan
Local Currency Advances obtained by all the Japan Local Currency Banks, such
Japan Local Currency Bank shall forthwith purchase from the other Japan Local
Currency Banks such participations in the Japan Local Currency Advances made by
them as shall be necessary to cause such purchasing Japan Local Currency Bank to
share the excess payment ratably with each of them, provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Japan Local Currency Bank, such purchase from each other Japan Local
Currency Bank shall be rescinded and each such other Japan Local Currency Bank
shall repay to the purchasing Japan Local Currency Bank the purchase price to
the extent of such recovery together with an amount equal to such other Japan
Local Currency Bank’s ratable share (according to the proportion of (i) the
amount of such other Japan Local Currency Bank’s required repayment to (ii) the
total amount so recovered from the purchasing Japan Local Currency Bank) of any
interest or other amount paid or payable by the purchasing Japan Local Currency
Bank in respect of the total amount so recovered. CFC agrees that any
Japan Local Currency Bank so purchasing a participation from another Japan Local
Currency Bank pursuant to this Section 4.05 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Japan Local Currency Bank were the direct creditor of CFC in the amount
of such participation.
SECTION 4.06. Applicable
Law. THIS ADDENDUM SHALL BE GOVERNED BY AND INTERPRETED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (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).
SECTION 4.07 Execution
in Counterparts. This Addendum may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
ARTICLE
V
The
Japan Local Currency Agent
SECTION 5.01 Appointment;
Nature of Relationship. The Bank of Tokyo-Mitsubishi
UFJ, Ltd. is appointed by the Japan Local Currency Banks as the Japan Local
Currency Agent hereunder and under the Credit Agreement, and each of the Japan
Local Currency Banks irrevocably authorizes the Japan Local Currency Agent to
act as the contractual representative of such Japan Local Currency Bank with the
rights and duties expressly set forth herein and in the Credit Agreement
applicable to the Japan Local Currency Agent. The Japan Local
Currency Agent agrees to act as such contractual representative upon the express
conditions contained in this Article
V. Notwithstanding the use of the defined term “Japan Local
Currency Agent,” it is expressly understood and agreed that the Japan Local
Currency Agent shall not have any fiduciary responsibilities to any Japan Local
Currency Bank or other Bank by reason of this Addendum and that the
Japan Local Currency Agent is merely acting as the representative of the Japan
Local Currency Banks with only those duties as are expressly set forth in this
Addendum and the Credit Agreement. In its capacity as the Japan Local
Currency Banks’ contractual representative, the Japan Local Currency Agent (i)
does not assume any fiduciary duties to any of the Banks, (ii) is a
“representative” of the Japan Local Currency Banks within the meaning of Section
9-102 of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Addendum and the Credit Agreement. Each of the Japan
Local Currency Banks agrees to assert no claim against the Japan Local Currency
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Bank waives.
SECTION 5.02 Powers. The
Japan Local Currency Agent shall have and may exercise such powers under this
Addendum and the Credit Agreement as are specifically delegated to the Japan
Local Currency Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Japan Local Currency Agent
shall have neither any implied duties or fiduciary duties to the Japan Local
Currency Banks or the Banks, nor any obligation to the Japan Local Currency
Banks or the Banks to take any action hereunder or under the Credit Agreement
except any action specifically provided by this Addendum or the Credit Agreement
required to be taken by the Japan Local Currency Agent.
SECTION 5.03 General
Immunity. Neither the Japan Local Currency Agent nor
any of its respective directors, officers, agents or employees shall be liable
to any of the Borrowers or any Bank for any action taken or omitted to be taken
by it or them hereunder or under the Credit Agreement or in connection herewith
or therewith except to the extent such action or inaction is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
SECTION 5.04 No
Responsibility for Advances, Creditworthiness, Collateral, Recitals,
Etc. [Intentionally Omitted. See Sections 7.03 and
7.04 of the Credit Agreement for these provisions.]
SECTION 5.05 Action on
Instructions of Japan Local Currency Banks. The Japan
Local Currency Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under the Credit Agreement in accordance
with written instructions signed by Majority Japan Local Currency Banks (except
with respect to actions that require the consent of all of the Banks as provided
in the Credit Agreement, including, without limitation, Section 8.01
thereof), and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Japan Local Currency
Banks. The Japan Local Currency Agent shall be fully justified in
failing or refusing to take any action hereunder and under the Credit Agreement
unless it shall first be indemnified to its satisfaction by the Japan Local
Currency Banks pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such
action.
SECTION 5.06 Employment
of Agents and Counsel. The Japan Local Currency Agent
may execute any of its duties hereunder and under the Credit Agreement by or
through employees, agents, and attorneys-in-fact, and shall not be answerable to
the Banks or the Japan Local Currency Banks, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable
care. The Japan Local Currency Agent shall be entitled to advice of
counsel concerning the contractual arrangement among the Japan Local Currency
Agent and the Japan Local Currency Banks, as the case may be, and all matters
pertaining to its duties hereunder and under the Credit Agreement.
SECTION 5.07 Reliance
on Documents; Counsel. [Intentionally Omitted. See
Section 7.03 of
the Credit Agreement for these provisions.]
SECTION 5.08 Other
Transactions. The Japan Local Currency Agent may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this Addendum
or the Credit Agreement, with CFSC, CFC or any of their respective Subsidiaries
in which the Japan Local Currency Agent is not prohibited hereby from engaging
with any other Person.
SECTION 5.09 Bank
Credit Decision. [Intentionally Omitted. See Section 7.07 of the
Credit Agreement for these provisions.]
SECTION 5.10 Successor
Japan Local Currency Agent. The Japan Local Currency
Agent (i) may resign at any time by giving written notice thereof to the Agent,
the Japan Local Currency Banks and the Borrowers, and may appoint one of its
Affiliates as successor Japan Local Currency Agent and (ii) may be removed at
any time with or without cause by the Majority Japan Local Currency
Banks. Upon any such resignation or removal, the Majority Japan Local
Currency Banks, with the consent of the Agent, shall have the right to appoint
(unless, in the case of the resignation of the Japan Local Currency Agent, the
resigning Japan Local Currency Agent has appointed one of its
Affiliates as successor Japan Local Currency Agent), on behalf of the Borrowers
and the Japan Local Currency Banks, a successor Japan Local Currency
Agent. If no successor Japan Local Currency Agent shall have been so
appointed and shall have accepted such appointment within thirty days after the
retiring Japan Local Currency Agent’s giving notice of resignation or the
Majority Japan Local Currency Banks’ removal of the retiring Japan Local
Currency Agent, then the retiring Japan Local Currency Agent may appoint, on
behalf of the Borrowers and the Japan Local Currency Banks, a successor Japan
Local Currency Agent, which need not be one of its
Affiliates. Notwithstanding anything herein to the contrary, so long
as no Event of Default, or event which would constitute an Event of Default but
for the requirement that notice be given, time elapse or both, has occurred and
is continuing, each such successor Japan Local Currency Agent shall be subject
to written approval by CFSC and CFC, which approval shall not be unreasonably
withheld. Such successor Japan Local Currency Agent shall be a
commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as the Japan
Local Currency Agent hereunder by a successor Japan Local Currency Agent, such
successor Japan Local Currency Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Japan
Local Currency Agent, and the retiring Japan Local Currency Agent shall be
discharged from its duties and obligations hereunder and under the Credit
Agreement. After any retiring Japan Local Currency Agent’s
resignation hereunder as Japan Local Currency Agent, the provisions of this
Article V shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Japan Local Currency Agent hereunder
and under the Credit Agreement.
IN WITNESS WHEREOF,
the parties hereto have caused this Addendum to be duly executed as a deed by
their duly authorized officers, all as of the date and year first above
written.
CATERPILLAR
FINANCE CORPORATION
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title: Director
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title: Executive
Vice President and Chief
Financial
Officer
CITIBANK,
N.A., as the Agent
By: /s/ Xxxxx X
Xxx
Name: Xxxxx
X Xxx
Title: Vice
President
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency
Agent
By: /s/ Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency
Bank
By: /s/ Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
SCHEDULE
I
to
Japan Local Currency Addendum
Japan Local
Currency Banks
Japan Local
Currency Commitments
Total Japan Local
Currency Commitment
Applicable Lending
Office
|
Japan
Local Currency Bank Name
|
Japan
Local Currency Commitment
|
|
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
US
$75,000,000
|
|
Total
Japan Local Currency Commitment:
|
US
$75,000,000
|
|
Japan Local Currency
Bank Name
|
Applicable Japan Local
Currency Lending Office
|
|
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
Corporate
Banking Division No. 3, Corporate Banking Group
0-0,
Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
Attention: Xx.
Xxx Xxxxxx
(Telephone
No.: 00-0000-0000 / 00-0-0000-0000)
(Facsimile
No.: 00-0000-0000 /
00-0-0000-0000)
|
SCHEDULE
II
to
Japan Local Currency Addendum
MODIFICATIONS
1. Business Day
Definition: “Business
Day”: Same as Credit Agreement.
2. Interest Payment
Dates: Same as Credit Agreement. (See Section 2.07 of
Credit Agreement).
3. Interest
Periods: Same as Credit Agreement. (See definition
of “Interest Period”, Section 1.01,
and
Section 2.07(d)
of Credit Agreement).
4. Interest
Rates:
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. 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. 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.
5. Other:
Additional
Conditions Precedent: None
Current Termination
Date for Addendum: The “Current Termination Date” under the Credit
Agreement.
Extended
Termination Date for Addendum: The “Extended Termination Date” under the Credit
Agreement.
Term Loan Repayment
Date: The “Term Loan Repayment Date” under the Credit Agreement.
Prepayment
Notices: CFC shall be permitted to prepay a Japan Local Currency
Advance subject to the provisions of Section 8.04(b) of
the Credit Agreement, on any Business Day, provided, in the case of any
prepayment, notice thereof is given to the Japan Local Currency Agent not later
than 10:00 a.m. (Tokyo time) at least three (3) Business Days prior to the date
of such prepayment.
SCHEDULE
III
to
Japan Local Currency Addendum
OTHER
PROVISIONS
1. Borrowing
Procedures:
(a) Notice of Japan Local
Currency Borrowing shall be given by CFC to the Japan Local Currency Agent not
later than 10:00 a.m. (Tokyo time) on the third Business Day prior to the date
of the proposed Japan Local Currency Borrowing (or not later than 10:00 a.m.
(Tokyo time) on the Business Day of the proposed Japan Local Currency Borrowing
if such proposed Japan Local Currency Borrowing is requested on a same-day
basis), and the Japan Local Currency Agent shall give each Japan
Local Currency Bank prompt notice thereof in accordance with Section
4.03.
(b) Each Notice of Japan
Local Currency Borrowing shall be addressed to the Japan Local Currency Agent at
its address set forth in Section 4.03 and
shall specify the bank account to which the Japan Local Currency Advances are to
be made.
2. Funding
Arrangements:
Minimum
amounts/increments for Japan Local Currency Borrowings, repayments and
prepayments:
Same as Credit
Agreement.
3. Promissory
Notes: None required.
