CREDIT AGREEMENT (Five-Year Facility) Dated as of September 21, 2006 Among CATERPILLAR INC., CATERPILLAR FINANCIAL SERVICES CORPORATION, CATERPILLAR INTERNATIONAL FINANCE p.l.c. and CATERPILLAR FINANCE CORPORATION, as Borrowers THE FINANCIAL...
EXHIBIT
99.1
(Five-Year
Facility)
Dated
as of September 21,
2006
Among
CATERPILLAR
FINANCIAL
SERVICES CORPORATION,
CATERPILLAR
INTERNATIONAL
FINANCE p.l.c.
and
CATERPILLAR
FINANCE
CORPORATION,
as
Borrowers
THE
FINANCIAL INSTITUTIONS
NAMED HEREIN
as
Agent,
CITIBANK
INTERNATIONAL
plc,
as
Local Currendcy
Agent
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD.,
as
Japan Local Currency
Agent
ABN
AMRO BANK
N.V.,
BANK
OF AMERICA,
N.A.,
BARCLAYS
BANK
PLC,
X.X.
XXXXXX SECURITIES,
INC.
and
SOCIÉTÉ
GÉNÉRALE,
as
Arrangers
and
CITIGROUP
GLOBAL MARKETS
INC.,
as
Lead Arranger and
Sole Book Manager
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS AND ACCOUNTING TERMS
SECTION
1.01.
Certain Defined Terms
SECTION
1.02.
Computation of Time Periods
SECTION
1.03.
Accounting Terms
ARTICLE
II AMOUNTS
AND TERMS OF THE ADVANCES 16
SECTION
2.01. The
Revolving Credit Advances; Allocation of Commitments
SECTION
2.02.
Making the Revolving Credit Advances
SECTION
2.03. Terms
of Local Currency Facility
SECTION
2.03A. Making
the Local
Currency Advances
SECTION
2.03B. Terms
of Japan
Local Currency Facility
SECTION
2.03C. Making
the Japan
Local Currency Advances
SECTION
2.04.
Fees
SECTION
2.05.
Reduction of the Commitments; Bank Additions
SECTION
2.06.
Repayment of Advances
SECTION
2.07.
Interest on Advances
SECTION
2.08.
Interest Rate Determination
SECTION
2.09.
Prepayments of Advances
SECTION
2.10.
Increased Costs; Capital Adequacy; Illegality
SECTION
2.11.
Payments and Computations.
SECTION
2.12.
Taxes
SECTION
2.13.
Sharing of Payments, Etc
SECTION
2.14. Tax
Forms
SECTION
2.15.
Market Disruption; Denomination of Amounts in Dollars
ARTICLE
III
CONDITIONS OF LENDING
SECTION
3.01.
Conditions Precedent to Initial Advances
SECTION
3.02.
Conditions Precedent to Each Borrowing
SECTION
3.03.
Conditions Precedent to Certain Borrowings
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES
SECTION
4.01.
Representations and Warranties of the Borrowers
SECTION
4.02.
Additional Representations and Warranties of CFSC, CFC and CIF
ARTICLE
V COVENANTS
OF THE BORROWERS
SECTION
5.01.
Affirmative Covenants
SECTION
5.02.
Negative Covenants
SECTION
5.03.
Financial Covenant of Caterpillar
SECTION
5.04.
Financial and Other Covenants of CFSC
ARTICLE
VI EVENTS
OF DEFAULT
SECTION
6.01.
Events of Default
ARTICLE
VII THE
AGENT
SECTION
7.01.
Authorization and Action
SECTION
7.02.
Agent’s Reliance, Etc
SECTION
7.03.
Citibank and Affiliates
SECTION
7.04. Bank
Credit Decision
SECTION
7.05.
Indemnification
SECTION
7.06.
Successor Agent
SECTION
7.07. The
Arrangers
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01.
Amendments, Etc
SECTION
8.02.
Notices, Etc
SECTION
8.03. No
Waiver; Remedies
SECTION
8.04.
Costs, Expenses and Taxes
SECTION
8.05. Right
of Set-off
SECTION
8.06.
Binding Effect
SECTION
8.07.
Assignments and Participations
SECTION
8.08.
Governing Law; Submission to Jurisdiction; Service of Process
SECTION
8.09.
Caterpillar as Agent for the Borrowers; CFSC as Service of Process Agent
for CIF
and CFC
SECTION
8.10.
Judgment Currency
SECTION
8.11.
Execution in Counterparts
SECTION
8.12.
Waiver of Jury Trial
SECTION
8.13. USA
Patriot Act Notification
SECTION
8.14.
Termination of Prior Agreement
ARTICLE
IX CFSC
GUARANTY
SECTION
9.01. The
Guaranty
SECTION
9.02.
Guaranty Unconditional
SECTION
9.03.
Discharge Only Upon Payment In Full; Reinstatement in Certain
Circumstances
SECTION
9.04.
Waiver by CFSC
SECTION
9.05.
Subrogation
SECTION
9.06. Stay
of Acceleration
EXHIBITS
Exhibit
A Form
of
Note
Exhibit
B-1 Notice
of Revolving
Credit Borrowing
Exhibit
B-2 Notice
of Local
Currency Borrowing
Exhibit
B-3 Notice
of Japan
Local Currency Borrowing
Exhibit
B-4 Notice
of
Allocation
Exhibit
B-5 Notice
of Bank
Addition
Exhibit
C Form
of Assignment
and Acceptance
Exhibit
C-1 Form
of Assumption
and Acceptance
Exhibit
D Form
of Opinion of
Counsel for each of Caterpillar and CFSC
Exhibit
E Form
of Opinion of
Special New York Counsel to the Agent
Exhibit
F-1 Form
of Compliance
Certificate (Caterpillar)
Exhibit
F-2 Form
of Compliance
Certificate (CFSC)
Exhibit
G-1 Form
of Local
Currency Addendum
Exhibit
G-2 Form
of Japan Local
Currency Addendum
Exhibit A Form of Note
Exhibit
B-1 Notice
of Revolving
Credit Borrowing
Exhibit
B-2 Notice
of Local
Currency Borrowing
Exhibit
B-3 Notice
of Japan
Local Currency Borrowing
Exhibit
B-4 Notice
of
Allocation
Exhibit
B-5 Notice
of Bank
Addition
Exhibit
C Form
of Assignment
and Acceptance
Exhibit
C-1 Form
of Assumption
and Acceptance
Exhibit
D Form
of Opinion of
Counsel for each of Caterpillar and CFSC
Exhibit
E Form
of Opinion of
Special New York Counsel to the Agent
Exhibit
F-1 Form
of Compliance
Certificate (Caterpillar)
Exhibit
F-2 Form
of Compliance
Certificate (CFSC)
Exhibit
G-1 Form
of Local
Currency Addendum
Exhibit
G-2 Form
of Japan Local
Currency Addendum
(Five-Year
Facility)
Dated
as of
September 21, 2006
Caterpillar
Inc., a
Delaware corporation (“Caterpillar”),
Caterpillar
Financial Services Corporation, a Delaware corporation (“CFSC”),
Caterpillar
International Finance p.l.c., a corporation organized under the laws of Ireland
(“CIF”),
Caterpillar
Finance Corporation, an entity organized under the laws of Japan (“CFC”),
the financial
institutions listed on the signature pages hereof and those financial
institutions that become “Added Banks” pursuant to Section
2.05(c),
in each case
together with their respective successors and assigns (the “Banks”),
Citibank, N.A.
(“Citibank”),
as agent (the
“Agent”)
for the Banks
hereunder, Citibank International plc, as the Local Currency Agent, and The
Bank
of Tokyo-Mitsubishi UFJ, Ltd., as the Japan Local Currency Agent, agree as
follows:
ARTICLE
I
DEFINITIONS
AND
ACCOUNTING TERMS
SECTION
1.01.
Certain
Defined
Terms.
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):
“Accumulated
Other Comprehensive Income”
means
for CFSC on
any date of determination the aggregate amount, as such amount appears in CFSC’s
financial statements, compiled in accordance with generally accepted accounting
principles, of (x) CFSC’s translation adjustments related to its foreign
currency transactions and (y) adjustments to the market value of CFSC’s
derivative instruments, as such amounts are required to appear in CFSC’s
financial statements pursuant to FASB 133.
“Added
Bank”
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).
“Advance”
means
a Revolving
Credit Advance, a Local Currency Advance or a Japan Local Currency
Advance.
“Agreed
Currencies”
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.
“Agreement”
means
this Credit
Agreement (Five-Year Facility) as it may from time to time be further amended,
restated, supplemented or otherwise modified from time to time.
“Allocated
Commitment”
has
the meaning
specified in Section 2.01(b).
“Allocation”
has
the meaning
specified in Section 2.01(b).
“Allocation
Percentage”
means,
with
respect to Caterpillar or CFSC at any time, such Borrower’s Allocation at such
time divided by the Total Commitment at such time.
“Applicable
Eurocurrency Margin”
has
the meaning
specified in Section
2.07(b).
“Applicable
Lending Office”
means,
with
respect to each Bank, such Bank’s Domestic Lending Office in the case of a Base
Rate Advance, such Bank’s Eurocurrency Lending Office in the case of a
Eurocurrency Rate Advance, such Bank’s (or its Affiliate’s) branch or agency, as
specified by such Bank in the Local Currency Addendum, in the case of a Local
Currency Advance, and such Bank’s (or its Affiliate’s) branch or agency, as
specified by such Bank in the Japan Local Currency Addendum, in the case of
a
Japan Local Currency Advance.
“Applicable
TIBOR
Margin”
has
the meaning
specified in Section
2.07(c).
“Arrangers”
means
ABN AMRO
Bank N.V., Bank of America, N.A., Barclays Bank PLC, X.X. Xxxxxx Securities,
Inc., Société Générale and Citigroup Global Markets Inc.
“Assignment
and
Acceptance”
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
hereto.
“Associated
Costs
Rate”
has
the meaning
specified in the Local Currency Addendum.
“Assumption
and
Acceptance”
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-1
hereto.
“Available
Revolving Credit Commitment”
means,
as to any
Bank at any time, such Bank’s Revolving Credit Commitment at such time
minus
the sum of the
aggregate Dollar Amount of such Bank’s outstanding Revolving Credit Advances
and, if such Bank is a Local Currency Bank, its Non-Same Day Local Currency
Advances.
“Bank”
has
the meaning
specified in the introductory paragraph hereof. To the extent applicable, any
reference to a Bank or the Banks includes a reference to a Local Currency Bank,
the Local Currency Banks, 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 Local Currency Bank
or
a Japan Local Currency Bank.
“Bank
Addition”
has
the meaning
specified in Section
2.05(c).
“Base
Rate”
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:
(a) the
rate of
interest announced publicly by Citibank in New York, New York, from time to
time, as Citibank’s base rate; or
(b) 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
(c) 1/2
of one percent
above the Federal Funds Rate as in effect from time to time.
“Base
Rate
Advance”
means
an Advance
in Dollars which bears interest as provided in Section
2.07(a).
“Board
of
Directors”
means
either the
board of directors of a Borrower or any duly authorized committee of that
board.
“Borrower”
means
each of
Caterpillar, CFSC, CFC and CIF, and “Borrowers”
means
all of the
foregoing.
“Borrower
Agent”
has
the meaning
specified in Section
8.09.
“Borrowing”
means
a Revolving
Credit Borrowing, a Local Currency Borrowing or a Japan Local Currency
Borrowing.
“BOTM”
means
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.
“Business
Day”
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.
“Capitalization”
means,
as at any
date, the sum of (i) Caterpillar Consolidated Debt at such date, plus
(ii) stockholders’
equity (including preferred stock) of Caterpillar at such date.
“Caterpillar
Consolidated Debt”
means,
as at any
date, the aggregate Debt of Caterpillar and its Subsidiaries (other than CFSC)
at such date.
“Caterpillar
Event of Default”
means
an Event of
Default with respect to Caterpillar.
“Caterpillar
Purchase Claims”
means
the
outstanding liens on or claims against or in respect of Caterpillar’s accounts
receivable arising out of the sale or securitization by Caterpillar of its
accounts receivable.
“CFC
Event of
Default”
means
an Event of
Default with respect to CFC.
“CFSC
Consolidated Debt”
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 CFSC’s total assets
at such date) pursuant to guaranties of dealers’ obligations to the Dealer
Capital Access Trust.
“CFSC
Event of
Default”
means
an Event of
Default with respect to CFSC.
“CFSC
Guaranty”
means
the
guaranty by CFSC of the obligations of (a) CIF under this Agreement and the
Local Currency Addendum, and (b) CFC under this Agreement and the Japan Local
Currency Addendum, which guaranty is contained in Article
IX.
“CFSC
Purchase
Claims”
means
the
outstanding liens on or claims against or in respect of CFSC’s accounts
receivable arising out of the sale or securitization by CFSC of its accounts
receivable.
“Change
of
Control”
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, (b) with respect to
CIF, that CFSC shall cease to own, free and clear of all liens, claims, security
interests or other encumbrances, directly or indirectly through a wholly-owned
Subsidiary of CFSC, 100% of the outstanding shares of voting stock of CIF on
a
fully diluted basis; provided, that 6 shares of CIF may be held by nominal
owners so long as the beneficial ownership of such shares is held by CFSC
directly or through one or more wholly-owned Subsidiaries of CFSC, and (c)
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.
“CIF
Event of
Default”
means
an Event of
Default with respect to CIF.
“Closing
Date”
means
September
21, 2006.
“Code”
means
the
Internal Revenue Code of 1986, as amended from time to time, and any successor
statute.
“Commitment”
means,
for each
Bank, the obligation of such Bank to make (a) Revolving Credit Advances,
(b) if it is a Local Currency Bank, Local Currency Advances and (c) 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 Bank’s name under the
“Commitment” 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.
“Consolidated
Net
Tangible Assets”
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.
“Consolidated
Net
Worth”
means
as at any
date, (i) for Caterpillar, the stockholders’ equity (including preferred stock)
of Caterpillar at such date, and (ii) for CFSC, the stockholders’ equity
(including preferred stock but excluding Accumulated Other Comprehensive Income)
of CFSC on such date.
“Credit
Rating”
means,
at any
time, with respect to Caterpillar or CFSC, the credit rating on such Borrower’s
long-term senior unsecured debt then most recently publicly announced by either
Xxxxx’x or S&P, and “Credit
Ratings”
means
with
respect to each such Borrower, such credit ratings from both Xxxxx’x and
S&P. In the case of each of CFC and CIF, “Credit Rating” and “Credit
Ratings” mean, at any time, the Credit Rating and Credit Ratings of CFSC at such
time, as determined pursuant to the preceding sentence.
“Debt”
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 Borrower’s 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.
“Defaulting
Bank”
has
the meaning
specified in Section
2.02(c).
“Dollar
Amount”
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.
“Dollars”
and
the sign
“$”
each
means lawful
money of the United States of America.
“Domestic
Lending
Office”
means,
with
respect to any Bank, the office of such Bank specified as its “Domestic
Lending
Office”
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.
“Eligible
Currency”
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. If, after the designation
by the Banks of any currency as an Agreed Currency or Local 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 “Disqualifying
Event”),
then the Agent
shall promptly notify the Banks and the Borrowers, and such currency shall
no
longer be an Agreed Currency or Local 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.
“Equivalent
Amount”
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, the
Local Currency Agent or the Japan Local Currency Agent, as applicable, in the
London interbank market (or other market where the Agent’s or Local Currency
Agent’s, as applicable, 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 (x) the making of a Local
Currency Advance in Pounds Sterling, such amount shall be determined at or
about
11:00 a.m. (London time) on the date of such Local Currency Advance or (y)
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, the Local Currency 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 Local Currency Agent (or the Japan Local Currency
Agent, if 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.
“ERISA”
means
the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any successor statute.
“ERISA
Affiliate”
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 employer” within the
meaning of Section 4001 of ERISA.
“ERISA
Termination Event”
means
(i) a
“Reportable Event” described in Section 4043 of ERISA and the regulations issued
thereunder (other than a “Reportable Event” 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 “single employer” Plan during a
plan year in which it was a “substantial employer”, 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 “multiemployer
plan” as defined in Section 4001(a) of ERISA.
“euro”
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.
“Eurocurrency
Base Rate”
means,
with
respect to a Eurocurrency Rate Advance for the relevant Interest
Period:
(a) for
any
Eurocurrency Rate Advance in any Agreed Currency other than euro: the applicable
British Bankers’ Association Interest Settlement Rate for deposits in the Agreed
Currency appearing on Telerate Page 3740 or Telerate Page 3750, as applicable
(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
(or
on the first day of such Interest Period, in the case of a Same Day Local
Currency Advance or any Local Currency Advance made in Pounds Sterling), and
having a maturity equal to such Interest Period; provided,
that (i) if
Telerate Page 3740 or Telerate Page 3750 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 Bankers’ 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 (or on the first
day of such Interest Period, in the case of a Same Day Local Currency Advance
or
any Local Currency Advance made in Pounds Sterling), and having a maturity
equal
to such Interest Period, and (ii) if no such British Bankers’ 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 (or on the first day of such Interest
Period, in the case of a Same Day Local Currency Advance or any Local Currency
Advance made in Pounds Sterling), in the approximate amount of such Reference
Bank’s relevant Eurocurrency Rate Advance and having a maturity equal to such
Interest Period. 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.
(b) for
any
Eurocurrency Rate Advance in euro: the interest rate per annum equal to the
rate
determined by the Agent or the Local Currency Agent, as applicable, to be the
rate at which deposits in euro appear on the Telerate Page 248 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 (or on the first day of such Interest
Period, in the case of a Same Day Local Currency Advance); provided,
that if such rate
does not appear on the Telerate Page 248, then an interest rate per annum equal
to the arithmetic average (rounded upwards to the nearest .01%) determined
by
the Agent or the Local Currency Agent, as applicable, of the rates per annum
reported to the Agent or the Local Currency 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 (or on the
first
day of such Interest Period, in the case of a Same Day Local Currency Advance)
to other leading banks in the euro-zone interbank market. For purposes of this
Agreement, “TARGET Settlement Day” means any Business Day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open.
Any
Eurocurrency
Base Rate determined on the basis of the rate displayed on a Telerate Page
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.
“Eurocurrency
Lending Office”
means,
with
respect to any Bank, the office of such Bank specified as its “Eurocurrency
Lending Office” 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. A Bank
may specify different offices for its Advances denominated in Dollars and its
Advances denominated in Agreed Currencies, respectively, and the term
“Eurocurrency Lending Office” shall refer to any or all such offices,
collectively, as the context may require when used in respect of such
Bank.
“Eurocurrency
Liabilities”
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.
“Eurocurrency
Rate”
means,
with
respect to (a) a Revolving Credit Advance for the relevant Interest Period,
an
interest rate obtained by dividing (i) the Eurocurrency Base Rate applicable
to
such Interest Period by (ii) 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, and (b) a Local Currency Advance, for the relevant Interest Period,
an interest rate equal to the sum of (i) the Eurocurrency Base Rate applicable
to such period plus
(ii) the
Associated Costs Rate, as provided in the Local Currency Addendum.
“Eurocurrency
Rate Advance”
means
a Revolving
Credit Advance denominated in Dollars or in an Agreed Currency which bears
interest as provided in Section
2.07(b),
or a Local
Currency Advance which bears interest as provided in Section
2.07(b)
and the Local
Currency Addendum.
“Eurocurrency
Rate Reserve Percentage”
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).
“Events
of
Default”
has
the meaning
specified in Section
6.01.
“Facility
Fee”
has
the meaning
specified in Section
2.04(b).
“Facility
Fee
Rate”
has
the meaning
specified in Section
2.04(b).
“Federal
Funds
Rate”
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.
“Interest
Expense”
has
the meaning
specified in Section
5.04(b).
“Interest
Period”
means
for each
Advance comprising part of the same Borrowing, the period commencing on the
date
of such Advance and ending on the last day of the period selected by a Borrower
pursuant to the provisions below. 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
representing such advance, select; provided,
however,
that:
(i)
the duration of
any Interest Period which would otherwise end after the Termination Date shall
end on the Termination Date;
(ii)
Interest
Periods commencing on the same date for Advances comprising part of the same
Borrowing shall be of the same duration; and
(iii)
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.
“Japan
Base
Rate”
means,
for any
Interest Period or any other period, a fluctuating interest rate per annum
equal
to the rate of interest announced publicly by BOTM in Tokyo, Japan, from time
to
time, as BOTM’s short-term base rate.
“Japan
Base Rate
Advance”
means
a Japan
Local Currency Advance which bears interest as provided in Section
2.07(a).
“Japan
Local
Currency Addendum”
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-2.
“Japan
Local
Currency Advance”
means
any Advance
in Japanese Yen, made to CFC pursuant to Sections
2.03B
and 2.03C
and the Japan
Local Currency Addendum.
“Japan
Local
Currency Agent”
means
BOTM, as
agent under the Japan Local Currency Addendum, or any successor agent under
the
Japan Local Currency Addendum.
“Japan
Local
Currency Bank”
means
each Bank
(or any affiliate, branch or agency thereof) party to the Japan Local Currency
Addendum. 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.
“Japan
Local
Currency Borrowing”
means
a borrowing
comprised of simultaneous Japan Local Currency Advances made to CFC by each
of
the Japan Local Currency Banks pursuant to Sections
2.03B
and 2.03C
and the Japan
Local Currency Addendum.
“Japan
Local
Currency Commitment”
has
the meaning
specified in Section
2.03B(a).
“Japanese
Yen”
means
the lawful
currency of Japan.
“Leverage
Ratio”
has
the meaning
specified in Section
5.04(a).
“Local
Currency”
means
(i) only so
long as such currency remains an Eligible Currency, Pounds Sterling or euro
and
(ii) any other Agreed Currency which CIF requests the applicable Local Currency
Banks to include as a Local Currency hereunder and which is reasonably
acceptable to each such Local Currency Bank.
“Local
Currency
Addendum”
means
the local
currency addendum dated as of the date hereof among CIF, CFSC, the Local
Currency Banks named therein, the Local Currency Agent and the Agent,
substantially in the form of Exhibit
G-1.
“Local
Currency
Advance”
means
any Advance
in a Local Currency, made to CIF pursuant to Sections
2.03
and 2.03A
and the Local
Currency Addendum.
“Local
Currency
Agent”
means
Citibank
International plc, as agent under the Local Currency Addendum, or any successor
agent under the Local Currency Addendum.
“Local
Currency
Bank”
means
each Bank
(or any affiliate, branch or agency thereof) party to the Local Currency
Addendum. In the event any agency, branch or affiliate of a Bank shall be party
to the 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.
“Local
Currency
Borrowing”
means
a borrowing
comprised of simultaneous Local Currency Advances made to CIF by each of the
Local Currency Banks pursuant to Sections
2.03
and 2.03A
and the Local
Currency Addendum.
“Local
Currency
Commitment”
has
the meaning
specified in Section
2.03(a).
“Majority
Banks”
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.
“Majority
Japan
Local Currency Banks”
means
Japan Local
Currency Banks holding more than 50% of the Japan Local Currency
Commitments.
“Majority
Local
Currency Banks”
means
Local
Currency Banks holding more than 50% of the Local Currency
Commitments.
“Moody’s”
means
Xxxxx’x
Investors Service, Inc. or any successor thereto, and if Moody’s 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.
“Non-Same
Day
Local Currency Advances”
means
Local
Currency Advances other than Same Day Local Currency Advances.
“Note”
has
the meaning
specified in Section
2.02(f).
“Notice
of
Allocation”
has
the meaning
specified in Section
2.01(b).
“Notice
of
Borrowing”
means
a Notice of
Local Currency Borrowing, a Notice of Japan Local Currency Borrowing or a Notice
of Revolving Credit Borrowing, as applicable.
“Notice
of Japan
Local Currency Borrowing”
has
the meaning
specified in Section
2.03C(a).
“Notice
of Local
Currency Borrowing”
has
the meaning
specified in Section
2.03A(a).
“Notice
of
Revolving Credit Borrowing”
has
the meaning
specified in Section
2.02(a).
“Payment
Office”
means
(a) with
respect to Advances other than Local Currency Advances and 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 Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000; (b) with respect to
any
Local Currency Advance, the office of the Local Currency Agent set forth in
the
Local Currency Addendum; and (c) 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, the
Local Currency 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.
“PBGC”
means
the Pension
Benefit Guaranty Corporation, or any successor thereto.
“Person”
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.
“Plan”
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.
“Pounds
Sterling”
means
the lawful
currency of the United Kingdom.
“Prior
Agreement”
means
that
certain Credit Agreement (Five Year Facility) dated as of September 23, 2004,
among Caterpillar, CFSC, CFC, CIF, certain financial institutions party thereto,
BOTM, as Japan Local Currency Agent, Citibank International plc, as Local
Currency Agent, and Citibank, as agent for such financial institutions, as
amended from time to time prior to the date hereof.
“Purchase
Claims”
means
Caterpillar
Purchase Claims or CFSC Purchase Claims, or both, as applicable.
“Reference
Banks”
means
Citibank
and Société Générale.
“Register”
has
the meaning
specified in Section
8.07(c).
“Revolving
Credit
Advance”
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
“Type”
of
Advance.
“Revolving
Credit
Borrowing”
means
a borrowing
consisting of simultaneous Advances of the same Type made to a Borrower by
each
of the Banks pursuant to Section
2.01.
“Revolving
Credit
Commitment”
means,
for each
Bank, the obligation of such Bank to make Revolving Credit Advances and, if
such
Bank is a Local Currency Bank, Non-Same Day Local Currency Advances in an
aggregate amount not to exceed the amount set forth opposite such Bank’s name
under the “Revolving Credit Commitment” 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
Bank’s Same Day Local Currency Commitment or Japan Local Currency Commitment is
terminated in whole or in part without a corresponding reduction or termination
of the Commitments, then such Bank’s Revolving Credit Commitment shall equal the
sum of (x) the amount set forth as such Bank’s Revolving Credit Commitment on
such Bank’s signature page to this Agreement, its Assignment and Acceptance or
its Assumption and Acceptance, as applicable, plus
(y) the amount of
such Bank’s terminated Same Day Local Currency Commitment or Japan Local
Currency Commitment, as applicable. No such change shall result in a Bank’s
Revolving Credit Commitment exceeding its Commitment. For each Bank that is
not
a Local Currency Bank or a Japan Local Currency Bank, such Bank’s Revolving
Credit Commitment will be equal to its Commitment. For each Bank that is a
Local
Currency Bank or a Japan Local Currency Bank, such Bank’s Revolving Credit
Commitment will be equal to its Commitment minus
the sum of its
Same Day Local Currency Commitment and its Japan Local Currency
Commitment.
“Revolving
Credit
Obligations”
means,
at any
time, the aggregate outstanding Advances at such time minus
the sum of the
outstanding Same Day Local Currency Advances and the outstanding Japan Local
Currency Advances at such time.
“S&P”
means
Standard
& Poor’s 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.
“Same
Day Local
Currency Advances”
means
any
Advances under the Same Day Local Currency Subfacility.
“Same
Day Local
Currency Commitment”
has
the meaning
specified in Section
2.03(a).
“Same
Day Local
Currency Subfacility”
means
the
subfacility under the Local Currency Addendum which provides for the Local
Currency Banks to make Local Currency Advances available to CIF under the Local
Currency Addendum on a same day notice basis in an amount outstanding at any
time not to exceed the Dollar Amount of $250,000,000.
“Stated
Termination Date”
means
September
21, 2011.
“Subsidiary”
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.
For the purposes of this definition, “voting stock” 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.
“Support
Agreement”
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.
“Swiss
Francs”
means
the lawful
currency of Switzerland.
“Termination
Date”
means
the earlier
to occur of (i) the Stated Termination Date and (ii) the date of termination
in
whole of the Commitments pursuant to Section
2.05(a)
or 6.01.
“364-Day
Credit
Agreement”
means
that
certain Credit Agreement (364-Day Facility) dated as of September 21, 2006,
among Caterpillar, CFSC, CFC, certain financial institutions party thereto,
BOTM, as the Japan Local Currency Agent thereunder, and Citibank, as agent
for
such financial institutions, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
“TIBO
Rate”
means,
with
respect to a TIBO Rate Advance for the relevant Interest Period, the applicable
Japanese Xxx XXXXX interest rate displayed by the Japan Bankers’ Association on
Telerate Page 23070 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 Telerate
Page 23070 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 Bank’s relevant TIBO Rate Advance and having a maturity equal to
such Interest Period.
“TIBO
Rate
Advance”
means
a Japan
Local Currency Advance which bears interest at a rate based on the TIBO Rate
as
provided in Section
2.07
(c).
“Total
Commitment”
means,
at any
time, the sum of all of the Banks’ Commitments at such time.
“Total
Japan
Local Currency Commitment”
has
the meaning
specified in Section
2.03B(a).
“Total
Local
Currency Commitment”
has
the meaning
specified in Section
2.03(a).
“Total
Revolving
Credit Commitment”
means,
at any
time, the sum of all of the Banks’ Revolving Credit Commitments at such time
(which shall be an amount equal to the Total Commitment at such time
minus
the sum of the
aggregate Dollar Amount of the Same Day Local Currency Subfacility at such
time
and the aggregate Dollar Amount of the Total Japan Local Currency Commitment
at
such time).
“2005
Five-Year
Credit Agreement”
means
that
certain Credit Agreement (Five-Year Facility), dated as of September 22, 2005,
among Caterpillar, CFSC and CFC, as Borrowers thereunder, certain financial
institutions party thereto, BOTM, as Japan Local Currency Agent thereunder,
and
Citibank, as agent for such financial institutions, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
“Type”,
when used in
reference to any Revolving Credit Advance, has the meaning specified in the
definition of “Revolving Credit Advance”, 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 “Type” of Advance.
“USA
Patriot
Act”
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.
SECTION
1.02.
Computation
of
Time Periods.
In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and the words “to” and “until”
each means “to but excluding”.
SECTION
1.03.
Accounting
Terms.
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.
ARTICLE
II
AMOUNTS
AND TERMS
OF THE ADVANCES
SECTION
2.01.
The
Revolving
Credit Advances; Allocation of Commitments.
(a) 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
Termination Date in a Dollar Amount not to exceed such Bank’s 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 Bank’s Revolving Credit Advances, Local Currency
Advances and Japan Local Currency Advances exceed such Bank’s Commitment, (iv)
all Revolving Credit Advances to Caterpillar exceed Caterpillar’s Allocation at
such time, (v) all Revolving Credit Advances to CFSC plus
the Dollar Amount
of all Local Currency Advances and Japan Local Currency Advances exceed CFSC’s
Allocation at such time, (vi) any Bank’s Revolving Credit Advances to
Caterpillar exceed such Bank’s Allocated Commitment for Caterpillar at such
time, or (vii) any Bank’s Revolving Credit Advances to CFSC plus
such Bank’s Local
Currency Advances and Japan Local Currency Advances at such time exceed such
Bank’s Allocated Commitment for CFSC at such time. 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. Within the limits of each Bank’s
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.
(b) 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 Borrower’s
allocated portion of the Total Commitment at any time being such Borrower’s
“Allocation”),
in such a
manner that (i) the sum of the Allocations at any time shall equal the Total
Commitment at such time, (ii) each Bank’s Commitment allocable to Caterpillar
and CFSC at any time (such Bank’s “Allocated
Commitment”
with
respect to
such Borrower) shall be an amount equal to the product of such Bank’s Commitment
at such time multiplied
by
the Allocation Percentage for such Borrower at such time, and (iii) CFSC’s
Allocation at any time shall be in an amount equal to or greater than the sum
of
the Total Local Currency Commitment and the Total Japan Local Currency
Commitment at such time. Each such allocation or re-allocation shall be made
on
notice, given not later than 10:00 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. Each
such notice of an allocation or re-allocation of the Total Commitment (a
“Notice
of
Allocation”)
shall be by
telex or telecopy, confirmed immediately in writing, in substantially the form
of Exhibit B-4
hereto, specifying
therein the requested (i) effective date of such allocation or re-allocation
of
the Total Commitment, and (ii) Allocation for each Borrower. Each Borrower’s
Allocation, and each Bank’s 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. Notwithstanding any of the foregoing or any Notice
of Allocation to the contrary:
(1) from
and after the
occurrence of a CFSC Event of Default, a CIF Event of Default or a CFC Event
of
Default, CFSC’s Allocation shall not be increased, but may be decreased to an
amount not less than the outstanding Advances to CFSC, CIF and CFC at the time
of such decrease; and
(2) 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.
(c) The
Borrowers and
the Agent shall furnish to the Local Currency Agent and 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 Local
Currency Agent or the Japan Local Currency Agent, a statement setting forth
the
outstanding Revolving Credit Advances.
SECTION
2.02.
Making
the
Revolving Credit Advances.
(a) 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. Each
such notice of a Revolving Credit Borrowing (a “Notice
of
Revolving Credit Borrowing”)
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. In the case of each proposed Revolving Credit
Borrowing, the Agent shall promptly notify each Bank of such Bank’s 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).
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 Bank’s ratable portion of such
Revolving Credit Borrowing. After the Agent’s 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.
(b) Each
Notice of a
Revolving Credit Borrowing shall be irrevocable and binding on the Borrower
submitting such Notice. 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. 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. 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 be
conclusive and binding for all purposes, absent manifest error.
(c) 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 Bank’s
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. If and to the extent that such Bank shall
not
have so made such ratable portion available to the Agent, such Bank (the
“Defaulting
Bank”)
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. 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 Bank’s 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. 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 Bank’s obligations hereunder. 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 Bank’s
portion of such Revolving Credit Borrowing.
(d) 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. 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
Bank’s failure to make the Revolving Credit Advance to be made by it as part of
such Revolving Credit Borrowing.
(e) 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.
(f) 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, the Local Currency Agent, or the Japan Local
Currency Agent, as applicable, hereunder from the applicable Borrower and each
Bank’s share thereof. Entries recorded pursuant to the foregoing shall be
prima facie
evidence of the
existence and amounts of the Borrowers’ 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. Any Bank may request
that
its Revolving Credit Advances be evidenced by a promissory note in substantially
the form of Exhibit A (a “Note”).
In such event,
the applicable Borrower shall prepare, execute and deliver to such Bank such
Note payable to the order of such Bank. 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.
SECTION
2.03.
Terms
of Local
Currency Facility.
(a) The
Local Currency
Addendum sets forth (i) the maximum amount (expressed in Dollar Amount)
available to be borrowed from all Local Currency Banks under the Local Currency
Addendum (the “Total
Local
Currency Commitment”),
which shall not
exceed $1,000,000,000, (ii) with respect to each Local Currency Bank, the
maximum amount (expressed in Dollar Amount) available to be borrowed from such
Local Currency Bank thereunder (such Bank’s “Local
Currency
Commitment”),
and (iii) with
respect to each Local Currency Bank, the maximum amount (expressed in Dollar
Amount) available to be borrowed from such Local Currency Bank under the Local
Currency Same Day Subfacility (such Bank’s “Same
Day Local
Currency Commitment”).
In no event
shall a Local Currency Bank’s Local Currency Commitment (or, if such Local
Currency Bank is also a Japan Local Currency Bank, the sum of its Local Currency
Commitment and its Japan Local Currency Commitment) at any time exceed such
Bank’s Commitment.
(b) No
Local Currency
Advance may be made if the Dollar Amount of (i) outstanding Local Currency
Advances would exceed the Total Local Currency Commitment, (ii) any Local
Currency Bank’s Local Currency Advances would exceed its 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 Bank’s Revolving Credit Advances, Local Currency Advances
and Japan Local Currency Advances would exceed such Bank’s Commitment, (vi) all
Revolving Credit Advances to CFSC plus
the Dollar Amount
of all Local Currency Advances and Japan Local Currency Advances would exceed
CFSC’s Allocation at such time, (vii) any Bank’s Revolving Credit Advances to
CFSC plus
such Bank’s Local
Currency Advances and Japan Local Currency Advances at such time would exceed
such Bank’s Allocated Commitment for CFSC at such time, or (viii) the
outstanding Same Day Local Currency Advances would exceed the Dollar Amount
of
the Same Day Local Currency Subfacility.
(c) CIF
and the Local
Currency Agent shall furnish to the Agent, promptly following the making,
payment or prepayment of each Local Currency Advance, and at any other time
at
the reasonable request of the Agent, a statement setting forth the outstanding
Local Currency Advances made under the Local Currency Addendum which statement
shall also indicate the amount of the Local Currency Advances that are Same
Day
Local Currency Advances.
(d) CIF
and the Local
Currency Agent shall furnish to the Agent copies of any amendment, supplement
or
other modification to the terms of any Local Currency Addendum promptly after
the effectiveness thereof.
(e) CFSC
and CIF may
terminate the Local Currency Addendum in their sole discretion if there are
not
any Advances outstanding thereunder, by written notice to the Agent, the Local
Currency Agent and the Local Currency Banks, which notice shall be executed
by
CFSC, CIF and, if such consent is required, each Local Currency
Bank.
SECTION
2.03A. Making
the Local
Currency Advances.
(a) Each Local
Currency Borrowing shall be made on a Business Day upon notice given by CIF
to
the Local Currency Agent, with a copy to the Agent, such notice to be given
at
the time specified in the Local Currency Addendum. Each Local Currency 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 Local Currency
Advances of the same Local Currency made on the same day to CIF by the Local
Currency Banks ratably according to their respective Local Currency Commitments.
The Local Currency Agent shall give each Local Currency Bank prompt notice
thereof by telecopy. Each such notice of a Local Currency Borrowing (a
“Notice
of Local
Currency Borrowing”)
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) Local Currency of such
Borrowing, (iii) Interest Period for such Borrowing and (iv) aggregate amount
of
such Borrowing.
(b) Subject
to any
alternative procedures set forth in the Local Currency Addendum, each Local
Currency Bank, for the account of its Applicable Lending Office, shall make
such
Local Currency Bank’s ratable portion of such Local Currency Borrowing on the
proposed date thereof by wire transfer of immediately available funds to the
Local Currency Agent by the time specified in the Local Currency Addendum or
Notice of Local Currency Borrowing, and the Local Currency Agent shall make
such
funds available to CIF at the applicable Payment Office.
(c) Each
Notice of
Local Currency Borrowing shall be irrevocable and binding on CFSC and CIF.
CFSC
and CIF, jointly and severally, shall indemnify each Local Currency Bank against
any loss, cost or expense reasonably incurred by such Local Currency Bank as
a
result of any failure to fulfill on or before the date specified in such Notice
of Local Currency Borrowing for such 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 Local
Currency Bank to fund the Local Currency Advance to be made by such Local
Currency Bank as part of such Local Currency Borrowing when such Local Currency
Advance, as a result of such failure, is not made on such date.
(d) Unless
the Local
Currency Agent shall have received notice from a Local Currency Bank prior
to
the date of any Local Currency Borrowing that such Local Currency Bank will
not
make available to the Local Currency Agent such Local Currency Bank’s ratable
portion of such Local Currency Borrowing, the Local Currency Agent may assume
that such Local Currency Bank has made such portion available to it on the
date
of such Local Currency Borrowing in accordance with subsection
(b)
of this
Section
2.03A
and it may, in
reliance upon such assumption, make (but shall not be required to make)
available to CIF on such date a corresponding amount. If and to the extent
that
such Local Currency Bank shall not have so made such ratable portion available
to the Local Currency Agent, such Local Currency Bank and CIF severally agree
to
repay to the 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 CIF until the date such amount is repaid to the Local Currency
Agent at (i) in the case of CIF, the interest rate applicable at the time to
Local Currency Advances comprising such Local Currency Borrowing and (ii) in
the
case of such Local Currency Bank, the Federal Funds Rate or the Local Currency
Agent’s overdraft cost, if higher. If such Local Currency Bank shall repay to
the Local Currency Agent such corresponding amount, such amount so repaid shall
constitute such Local Currency Bank’s Local Currency Advance as part of such
Local Currency Borrowing for purposes of this Agreement.
(e) The
failure of any
Local Currency Bank to make the Local Currency Advance to be made by it as
part
of any Local Currency Borrowing shall not relieve any other Local Currency
Bank
of its obligation hereunder to make its Local Currency Advance on the date
of
such Local Currency Borrowing, but no Local Currency Bank shall be responsible
for the failure of any other Local Currency Bank to make the Local Currency
Advance to be made by such other Local Currency Bank on the date of any Local
Currency Borrowing.
SECTION
2.03B. Terms
of Japan
Local Currency Facility.
(a) 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 “Total
Japan
Local Currency Commitment”),
which shall not
exceed $100,000,000 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 Bank’s “Japan
Local
Currency Commitment”).
In no event
shall a Japan Local Currency Bank’s Japan Local Currency Commitment (or, if such
Japan Local Currency Bank is also a Local Currency Bank, the sum of its Japan
Local Currency Commitment and its Local Currency Commitment) at any time exceed
such Bank’s Commitment.
(b) 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 Bank’s 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 Bank’s Revolving Credit Advances, Local
Currency Advances and Japan Local Currency Advances would exceed such Bank’s
Commitment, (vi) all Revolving Credit Advances to CFSC plus
the Dollar Amount
of all Local Currency Advances and Japan
Local
Currency
Advances would exceed CFSC’s Allocation at such time, or (vii) any Bank’s
Revolving Credit Advances to CFSC plus
such Bank’s Local
Currency Advances and Japan Local Currency Advances at such time would exceed
such Bank’s Allocated Commitment for CFSC at such time.
(c) 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.
(d) 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.
(e) 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.
SECTION
2.03C. Making
the Japan
Local Currency Advances.
(a) 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. 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. The Japan Local
Currency Agent shall give each Japan Local Currency Bank prompt notice thereof
by telecopy. Each such notice of a Japan Local Currency Borrowing (a
“Notice
of Japan
Local Currency Borrowing”)
shall be by
telecopy, confirmed immediately in writing, in substantially the form of
Exhibit
B-3
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.
(b) 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 Bank’s 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.
(c) Each
Notice of
Japan Local Currency Borrowing shall be irrevocable and binding on CFSC and
CFC.
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.
(d) 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 Bank’s 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
2.03C
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. 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 Agent’s overdraft cost,
if higher. 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 Bank’s Japan Local Currency Advance as part of such
Japan Local Currency Borrowing for purposes of this Agreement.
(e) 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.
SECTION
2.04.
Fees.
(a) Caterpillar
and CFSC jointly and severally agree to pay to each Bank on the Closing Date
a
closing fee equal to the sum of (a) 0.05% of the amount, if any, by which such
Bank’s Commitment exceeds such Bank’s Commitment under and as defined in the
Prior Agreement plus
(b) 0.02% of the
remaining portion of such Bank’s Commitment.
(b) Each
of Caterpillar
and CFSC shall pay to the Agent, for the account of each Bank, a fee (each
a
“Facility
Fee”
and
collectively,
the “Facility
Fees”)
calculated on a
daily basis by multiplying the Facility Fee Rate in effect on each day by the
amount of such Bank’s Allocated Commitment for such Borrower as in effect on
such day (without regard to the actual or deemed usage of such Allocated
Commitment) and payable quarterly in arrears, commencing on January 2, 2007,
for
the period commencing on the Closing Date and ending on December 31, 2006,
inclusive, on the first Business Day of each calendar quarter thereafter for
the
period of the immediately preceding calendar quarter, and on the Termination
Date for the period since the last payment of Facility Fees. The “Facility
Fee
Rate”
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:
|
Credit
Rating
|
Facility
Fee
Rate
(rate
per
annum)
|
|
AA-
or better
(S&P) or
Aa3
or better
(Xxxxx’x)
|
0.05%
|
|
Below
AA-
(S&P) and Aa3 (Xxxxx’x)
but
A-
or better
(S&P) or
A3
or better
(Xxxxx’x)
|
0.06%
|
|
Below
A-
(S&P) and A3 (Xxxxx’x)
but
BBB+
or
better (S&P) or
Baa1
or
better (Xxxxx’x)
|
0.08%
|
|
Below
BBB+
(S&P) and Baa1 (Xxxxx’x)
but
BBB
or better
(S&P) or
Baa2
or
better (Xxxxx’x)
|
0.10%
|
|
Below
BBB
(S&P) and Baa2 (Xxxxx’x)
or
unrated
|
0.125%
|
The
Facility Fees
allocable to each of Caterpillar and CFSC shall be the several obligation of
each.
(c) 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 18, 2006, among Caterpillar, CFSC, the Agent and Citigroup
Global Markets Inc., on the dates specified therein. No Person other than the
Agent and Citigroup Global Markets Inc. shall have any interest in such
fees.
SECTION
2.05.
Reduction
of the
Commitments; Bank Additions.
(a) The Borrowers
shall have the right, upon at least three (3) Business Days’ 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 Local Currency Advances and 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.
Any such reduction
of each Bank’s Commitment will be an automatic reduction of such Bank’s
Revolving Credit Commitment in an identical amount.
(b) 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 “Combination”
and
each Bank
which is a party to such Combination being hereinafter referred to as a
“Combined
Bank”),
the Borrowers
may notify the Agent that they desire to reduce the Commitment of the Bank
surviving such Combination (the “Surviving
Bank”)
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 “Surviving
Commitment”
and
the
Commitments of the other Combined Banks being hereinafter referred to,
collectively, as the “Retired
Commitments”).
If the Majority
Banks (determined as set forth below) and the Agent agree to such reduction
in
the Surviving Bank’s 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.
If such reduction is to be a temporary reduction, then the Borrowers shall
be
responsible for finding one or more financial institutions (each, a
“Replacement
Bank”),
acceptable to
the Agent, willing to assume the obligations of a Bank hereunder with aggregate
Commitments up to the amount of the Retired Commitments. 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 Banks’
agreement to become parties hereunder. 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).
(c) The
Borrowers shall
have the right, upon at least five (5) Business Days’ 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 Bank’s 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 “Bank
Addition”);
provided
that (i) such
proposed Bank, in the case of a bank not already a Bank hereunder, is acceptable
to the Agent (the consent of the Agent not to be unreasonably withheld); (ii)
after giving effect to the proposed Bank Addition, no Bank’s 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 the Closing Date. Each notice of a proposed Bank Addition (a
“Notice
of Bank
Addition”)
shall be by
telecopy, confirmed immediately in writing, in substantially the form of
Exhibit
B-5
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. 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.
The
Added Bank shall, upon such execution, return the executed Assumption and
Acceptance to the Agent, for the Agent’s acceptance thereof, together with a
processing and recordation fee of $3,500.
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.
By
executing and
delivering an Assumption and Acceptance, each Added Bank confirms to and agrees
with each party hereto as follows: (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.
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. 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.
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-1
hereto, (i) accept
such Assumption and Acceptance, and (ii) give prompt notice thereof to the
Borrowers. 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. 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.
(d) 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 Bank’s
Revolving Credit Commitment bears to the Total Revolving Credit Commitment
after
giving effect to the Bank Addition) in each such Revolving Credit Advance.
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 Bank’s ratable portion (based
on the proportion that such Added Bank’s Revolving Credit Commitment (or the
increase in such Added Bank’s 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 Agent’s 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 Bank’s ratable portion of such payment by the Added
Bank. In addition, if such Added Bank acquires a Japan Local Currency Commitment
or a 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 Local Currency Advances or Japan Local
Currency Advances, as applicable, with such ratable risk participation based
on
such Added Bank’s Local Currency Commitment or Japan Local Currency Commitment
as a fraction of the aggregate of all Local Currency Commitments or Japan Local
Currency Commitments, as applicable.
SECTION
2.06.
Repayment
of
Advances.
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 on the last day of the Interest Period for such
Advance.
SECTION
2.07.
Interest
on
Advances.
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:
(a) Base
Rate
Advances.
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 Base Rate in effect from time to time 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 Japan Base Rate in
effect from time to time 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).
(b) Eurocurrency
Rate Advances.
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
Eurocurrency 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. “Applicable
Eurocurrency Margin”
means,
in respect
of any Eurocurrency Rate Advance, a rate per annum determined as of the first
day of the Interest Period for such Eurocurrency Rate Advance in reference
to
the table set forth below on the basis of the Credit Ratings of the applicable
Borrower at such time; provided,
however,
that for any
period during any Interest Period when the aggregate outstanding Dollar Amount
of Advances for any Bank exceeds 50% of the amount of such Bank’s Commitment,
the “Applicable
Eurocurrency Margin”
for
such Bank
shall be a rate per annum determined with reference to the credit ratings in
effect as of the first day of such Interest Period in reference to the rates
under the column “Applicable Eurocurrency Margin: > 50% Usage” set forth
below:
|
Credit
Rating
|
Applicable
Eurocurrency Margin
(rate
per
annum)
|
Applicable
Eurocurrency Margin: > 50% Usage
(rate
per
annum)
|
|
AA-
or better
(S&P) or
Aa3
or better
(Xxxxx’x)
|
0.10%
|
0.15%
|
|
Below
AA-
(S&P) and Aa3 (Xxxxx’x)
but
A-
or better
(S&P) or
A3
or better
(Xxxxx’x)
|
0.19%
|
0.24%
|
|
Below
A-
(S&P) and A3 (Xxxxx’x)
but
BBB+
or
better (S&P) or
Baa1
or
better (Xxxxx’x)
|
0.27%
|
0.37%
|
|
Below
BBB+
(S&P) and Baa1 (Xxxxx’x)
but
BBB
or better
(S&P) or
Baa2
or
better (Xxxxx’x)
|
0.35%
|
0.45%
|
|
Below
BBB
(S&P) and Baa2
(Xxxxx’x)
or
unrated
|
0.50%
|
0.625%
|
(c) TIBO
Rate
Advances.
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
TIBOR 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. “Applicable
TIBOR
Margin”
means,
in respect
of any TIBO Rate Advance, a rate per annum determined as of the first day of
the
Interest Period for such TIBO Rate Advance in reference to the table set forth
below on the basis of the Credit Ratings of the applicable Borrower at such
time; provided,
however,
that for any
period during any Interest Period when the aggregate outstanding Dollar Amount
of Advances for any Bank exceeds 50% of the amount of such Bank’s Commitment,
the “Applicable
TIBOR
Margin”
for
such Bank
shall be a rate per annum determined with reference to the credit ratings in
effect as of the first day of such Interest Period in reference to the rates
under the column “Applicable TIBOR Margin: > 50% Usage” set forth
below:
|
Credit
Rating
|
Applicable
TIBOR Margin
(rate
per
annum)
|
Applicable
TIBOR Margin: > 50% Usage
(rate
per
annum)
|
|
AA-
or better
(S&P) or
Aa3
or better
(Xxxxx’x)
|
0.10%
|
0.15%
|
|
Below
AA-
(S&P) and Aa3 (Xxxxx’x)
but
A-
or better
(S&P) or
A3
or better
(Xxxxx’x)
|
0.19%
|
0.24%
|
|
Below
A-
(S&P) and A3 (Xxxxx’x)
but
BBB+
or
better (S&P) or
Baa1
or
better (Xxxxx’x)
|
0.27%
|
0.37%
|
|
Below
BBB+
(S&P) and Baa1 (Xxxxx’x)
but
BBB
or better
(S&P) or
Baa2
or
better (Xxxxx’x)
|
0.35%
|
0.45%
|
|
Below
BBB
(S&P) and Baa2
(Xxxxx’x)
or
unrated
|
0.50%
|
0.625%
|
(d) Post-Default
Interest.
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.
SECTION
2.08.
Interest
Rate
Determination.
(a) If, pursuant
to the definition of “Eurocurrency Base Rate”, 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. 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.
(b) The
Agent shall
give prompt notice to the Borrowers and the Banks (or the Local Currency Banks
or 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).
SECTION
2.09.
Prepayments
of
Advances.
(a) Any Borrower
may, upon at least two (2) Business Days’ 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).
(b) If
on any date that
the Dollar Amount of (i) Eurocurrency Rate Advances outstanding in an Agreed
Currency, (ii) Local Currency Advances or (iii) Japan Local Currency Advances,
is determined pursuant to Section
2.15
(each such date, a
“Computation
Date”),
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 an aggregate principal
amount of Revolving Credit Advances 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. 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).
SECTION
2.10.
Increased
Costs;
Capital Adequacy; Illegality.
(a) 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 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. A certificate describing in reasonable detail the amount of such increased
cost, submitted to the Borrowers and the Agent by such Bank, shall be conclusive
and binding for all purposes, absent manifest error. 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
CIF or CFC, by CFSC). In all other cases, compensation for such increased cost
shall be paid by Caterpillar.
(b) 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 Bank’s Advances or commitment to lend hereunder, then, upon 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 Bank’s commitment to lend
hereunder. A certificate describing in reasonable detail such amounts submitted
to the applicable Borrower by such Bank shall be conclusive and binding for
all
purposes, absent manifest error. 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
CIF
or CFC, by CFSC). In all other cases, compensation for such increased capital
shall be paid by Caterpillar.
(c) 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
Local Currency Advances, TIBO Rate Advances or Eurocurrency Rate Advances or
to
fund or maintain Local Currency Advances, TIBO Rate Advances or Eurocurrency
Rate Advances hereunder, (i) all Local Currency Advances, 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 Local Currency Advances, 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 Local
Currency Advances or Eurocurrency Rate Advances, such Bank shall fund its Local
Currency Advance made in connection with each Local Currency Borrowing and
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.
(d) If
the Majority
Banks (or the Majority Local Currency Banks) shall, at least one Business Day
before the date of any requested Revolving Credit Borrowing or Local Currency
Borrowing (or on the date of such Local Currency Borrowing, in the case of
a
Same Day Local Currency 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 (or the Majority Local Currency Banks)
of making or funding their respective Eurocurrency Rate Advances for such
Revolving Credit Borrowing or Local Currency Borrowing, the right of the
requesting Borrower to select the Eurocurrency Rate for such Borrowing, and
the
right of any Borrower 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.
(e) If
the Majority
Japan Local Currency Banks shall, at least one Business Day before the date
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 right of CFC to select the TIBO Rate for such Borrowing,
and the right of CFC to 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.
(f) In
the event that a
Bank (an “Affected
Bank”)
demands payment
from any Borrower at any time pursuant to subsection (a) or (b) of this
Section
2.10,
then from such
time and for so long thereafter as such Bank remains an Affected Bank, the
Borrowers may either (1) terminate such Affected Bank’s 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 and (ii) 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 Bank’s obligations hereunder. 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).
SECTION
2.11.
Payments
and
Computations.
(a) The
Borrowers shall
make each payment hereunder and under the Notes (except with respect to
principal of, interest on, and other amounts relating to Local Currency
Advances, 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 Agent’s account
maintained at the Payment Office for Dollars in New York City. 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 or 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 Agent’s account
maintained at the Payment Office for such Agreed Currency. CIF shall make each
payment under the Local Currency Addendum with respect to principal of, interest
on, and other amounts relating to Local Currency Advances without set-off,
deduction, or counterclaim, not later than 11:00 a.m. (London time) on the
day
when due in the applicable Local Currency to the Local Currency Agent in same
day funds by deposit of such funds to the Local Currency Agent’s account
maintained at the Payment Office for such Local Currency. 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 Agent’s
account at the Payment Office set forth in the Japan Local Currency Addendum.
The Agent, the Local Currency 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.
(b) 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 Local Currency
Advances in Pounds Sterling shall be made by the Local Currency 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 (except in the case of Local Currency Advances in Pounds
Sterling), 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. Each determination by the Agent, the Local Currency 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.
(c) 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.
(d) 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. 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.
SECTION
2.12.
Taxes.
(a) Any and all
payments by any of the Borrowers hereunder, under the Local Currency Addendum,
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 Local Currency Agent, 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 Local Currency Agent, 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 Bank’s 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 “Taxes”).
If any Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder, under the Local Currency Addendum, under the Japan Local
Currency Addendum or under any Note to any Bank, the Local Currency Agent,
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
Local Currency Agent, 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.
(b) 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 Local Currency Addendum, 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 Local
Currency Addendum, the Japan Local Currency Addendum or the Notes (hereinafter
referred to as “Other
Taxes”).
If any such
Other Taxes are attributable to a specific Borrower, they shall be paid by
such
Borrower (or in the case of CIF or CFC, by CFSC). In all other cases, they
shall
be paid by Caterpillar.
(c) Each
Borrower will
indemnify each Bank, the Local Currency Agent, 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 Local Currency Agent, 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. This indemnification shall be made
within 30 days from the date such Bank, the Local Currency Agent, the Japan
Local Currency Agent or the Agent (as the case may be) makes written demand
therefor.
(d) 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. If no Taxes are
payable in respect of any payment hereunder, under the Local Currency Addendum,
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, the Japan Local Currency Agent or the 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, the Japan Local Currency Agent or the
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.
(e) 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.
(f) 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 Local Currency
Addendum, under the Japan Local Currency Addendum and under the
Notes.
SECTION
2.13.
Sharing
of
Payments, Etc.
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 Bank’s ratable share (according to
the proportion
of (i)
the amount of such Bank’s 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.
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.
SECTION
2.14.
Tax
Forms.
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 Local Currency Bank or 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. Thereafter
and from time
to time, each
such Bank shall 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. 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. 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.
SECTION
2.15.
Market
Disruption; Denomination of Amounts in Dollars.
(a) Market
Disruption.
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 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 Majority Local Currency Banks (in the case of
a
Local Currency Borrowing), 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) 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, the Local Currency Banks and the Banks, or the applicable Borrower
shall give notice to the Agent, the Local Currency Banks 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 in Dollars, in
an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Notice of Borrowing, as Base Rate Advances,
unless the applicable Borrower notifies the Agent at least one (1) Business
Day
before such date that (x) it elects not to borrow on such date or (y) it elects
to borrow on such date in a different Agreed Currency, in which the denomination
of such Advances would in the opinion of the Agent, the Majority Local Currency
Banks (in the case of a Local Currency Borrowing), or the Banks having at least
66-2/3% of the Available Revolving Credit Commitments (in the case of a
Revolving Credit 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 (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 in Dollars, in an aggregate principal amount equal to
the
Dollar Amount of the aggregate principal amount of such Bank’s Advance, as a
Base Rate Advance, unless the applicable Borrower notifies the Agent at least
one (1) Business Day before such date that (x) it elects not to borrow on such
date or (y) it elects to borrow on such date in a different Agreed Currency,
in
which the denomination of all such Advances as part of such Borrowing would
in
the opinion of the Agent, the Majority Local Currency Banks (in the case of
a
Local Currency Borrowing) or the Banks having at least 66-2/3% of the Available
Revolving Credit Commitments (in the case of a Revolving Credit 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.
(b) Calculation
of
Amounts.
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). 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 Local Currency Bank, 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.
ARTICLE
III
CONDITIONS
OF
LENDING
SECTION
3.01.
Conditions
Precedent to Initial Advances.
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:
(a) A
fully executed
copy of this Agreement, of the Local Currency Addendum and of the Japan Local
Currency Addendum.
(b) Certified
copies of
the resolutions of the Board of Directors of each Borrower evidencing corporate
authority to execute and deliver this Agreement, the Local Currency Addendum
(if
applicable), 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 Local Currency Addendum (if applicable), the
Japan Local Currency Addendum (if applicable), the Notes and the other documents
to be delivered hereunder.
(c) 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 Local Currency Addendum (if applicable), the Japan Local Currency
Addendum (if applicable) and the Notes and the other documents to be delivered
hereunder.
(d) A
favorable opinion
of counsel for each of Caterpillar and CFSC, given upon their express
instructions, substantially in the form of Exhibit
D
hereto.
(e) A
favorable opinion
of Sidley Austin LLP, counsel for the Agent, given upon the Agent’s express
instructions, substantially in the form of Exhibit
E
hereto.
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, (ii) the obligation of the Local Currency
Banks to make the initial Advances under the Local Currency Addendum shall
be
subject to any further conditions set forth in the Local Currency Addendum,
and
(iii) 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.
SECTION
3.02.
Conditions
Precedent to Each Borrowing.
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:
(a) 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):
(i) 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, CFC or CIF, 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
(ii) 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
(b) the
Agent shall
have received such other approvals, opinions or documents as any Bank through
the Agent may reasonably request.
SECTION
3.03.
Conditions
Precedent to Certain Borrowings.
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): (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.
ARTICLE
IV
REPRESENTATIONS
AND
WARRANTIES
SECTION
4.01.
Representations
and Warranties of the Borrowers.
Each Borrower
represents and warrants as of the Closing Date and on each date specified in
Article
III,
as
follows:
(a) Organization;
Qualification.
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, (2)
under the laws of Ireland, in the case of CIF, and (3) 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, under the Local Currency Addendum, in the case of
CIF
and CFSC, and under the Japan Local Currency Addendum, in the case of CFC and
CFSC.
(b) Authority;
No
Conflict.
The execution,
delivery and performance by such Borrower of this Agreement and its Notes,
the
Local Currency Addendum, in the case of CIF and CFSC, and the Japan Local
Currency Addendum, in the case of CFC and CFSC, are within such Borrower’s
corporate powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) such Borrower’s charter or by-laws or (ii) any law or
any contractual restriction binding on or affecting such Borrower.
(c) Governmental
Consents.
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 Local Currency Addendum in the case of CIF and CFSC; or of the Japan Local
Currency Addendum in the case of CFC and CFSC.
(d) Execution;
Enforceability.
(i) This
Agreement has
been duly executed and delivered by a duly authorized officer of such Borrower.
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 Borrower’s 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 creditors’
rights generally and by the effect of general principles of equity.
(ii) The
Local Currency
Addendum has been duly executed and delivered by a duly authorized officer
of
each of CFSC and CIF. Upon execution of the Local Currency Addendum by the
Agent
and the Local Currency Agent and when the Local Currency Agent or the Agent
shall have been notified by each Local Currency Bank that such Local Currency
Bank has executed the Local Currency Addendum, the Local Currency Addendum
will
be the legal, valid and binding obligation of each of CFSC and CIF enforceable
against each of CFSC and CIF 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 creditors’
rights generally and by the effect of general principles of equity.
(iii) The
Japan Local
Currency Addendum has been duly executed and delivered by a duly authorized
officer of each of CFSC and CFC. 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 creditors’ rights generally and by the
effect of general principles of equity.
(e) Accuracy
of
Information; Material Adverse Change.
The balance
sheets of Caterpillar and CFSC and their respective Subsidiaries as at December
31, 2005, and as at June 30, 2006, 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. Since December
31, 2005, there has been no material adverse change in such condition or
operations.
(f) Litigation;
Loss
Contingencies.
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 Local Currency Addendum, 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, under the Local
Currency Addendum in the case of CIF and CFSC, or under the Japan Local Currency
Addendum in the case of CFC and CFSC.
(g) Margin
Stock.
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.
(h) ERISA.
Each Plan of such
Borrower is in substantial compliance with ERISA, the Code and regulations
thereunder. No Plan has an accumulated or waived funding deficiency within
the
meaning of Section 412 of the Code. 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. 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. 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. 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.
(i) Taxes;
Assessments.
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.
SECTION
4.02.
Additional
Representations and Warranties of CFSC, CFC and CIF.
Each
of CFSC, CFC
and CIF represents and warrants that neither it nor any of its Subsidiaries
is
an “investment company” or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as
amended.
ARTICLE
V
COVENANTS
OF THE
BORROWERS
SECTION
5.01.
Affirmative
Covenants.
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 or CIF) will, unless
the
Majority Banks shall otherwise consent in writing:
(a) Corporate
Existence, Etc.
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.
(b) Compliance
with
Laws, Etc.
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 Local Currency Addendum or Japan Local Currency
Addendum.
(c) Maintenance
of
Properties.
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 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.
(d) Payment
of Taxes
and Other Claims.
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.
(e) Use
of
Proceeds.
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.
(f) Reporting
Requirements.
Furnish to the
Banks:
(i) 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;
(ii) 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;
(iii) 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);
(iv) 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;
(v) 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);
(vi) promptly
after the
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;
(vii) 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 Local Currency Addendum or the Japan Local Currency
Addendum (without duplication of notices furnished to the Banks pursuant to
clause (v) of this subsection (f));
(viii) promptly
after (A)
the occurrence thereof, notice that (1) an ERISA Termination Event or a
“prohibited transaction,” 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 Borrower’s 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 PBGC’s intention to terminate or to have a trustee
appointed to administer any Plan;
(ix) (A)
on the Closing
Date, the then Credit Ratings for such Borrower from S&P and Xxxxx’x and (B)
within two (2) Business Days after such Borrower receives notice from S&P or
Xxxxx’x of a change in any of such Borrower’s Credit Ratings, such Borrower’s
revised Credit Ratings (or, if applicable, notice that a Credit Rating will
no
longer be received from such rating service); and
(x) 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.
SECTION
5.02.
Negative
Covenants.
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:
(a) Liens,
Etc.
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, 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.
(b) Mergers,
Etc.
(i) 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, 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.
SECTION
5.03.
Financial
Covenant of Caterpillar.
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.
SECTION
5.04.
Financial
and
Other Covenants of CFSC.
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:
(a) Ratio
of CFSC
Consolidated Debt to Consolidated Net Worth.
(i) Maintain
at all
times a ratio (the “Leverage
Ratio”)
of CFSC
Consolidated Debt to CFSC’s Consolidated Net Worth of not greater than 8.50 to 1
(except as provided in subsection
(ii)
below). 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.
(ii) Maintain
a Leverage
Ratio of not greater than 8.50 to 1 on each December 31, commencing December
31,
2006. For purposes of this subsection
(ii),
the Leverage
Ratio shall be the ratio of CFSC Consolidated Debt to CFSC’s Consolidated Net
Worth on the date for which computed.
(b) Interest
Coverage Ratio.
Maintain a ratio
of (i) earnings of CFSC before income taxes and “Interest Expense” (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. “Interest
Expense”
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.
(c) Support
Agreement.
CFSC will not
terminate, or make any amendment or modification to, the Support Agreement
which, in the determination of the Agent, adversely affects the Banks’ 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.
ARTICLE
VI
EVENTS
OF
DEFAULT
SECTION
6.01.
Events
of
Default.
If any of the
following events (“Events
of
Default”)
shall occur and
be continuing with respect to any Borrower:
(a) 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
(b) Any
representation
or warranty made by such Borrower herein, in the Japan Local Currency Addendum
or in the Local Currency Addendum, or by such Borrower (or any of its officers)
in connection with this Agreement, the Japan Local Currency Addendum or the
Local Currency Addendum, shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) 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 10 days after written notice
thereof shall have been given to such Borrower by the Agent or any Bank;
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
(d) Any
of the
following shall occur:
(i) 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,
CFC
and CIF (but excluding, in each case, Debt consisting of such Borrower’s
obligations hereunder (including the Local Currency Addendum or the Japan Local
Currency Addendum, if applicable), under the 364-Day Credit Agreement or under
the 2005 Five-Year Credit Agreement) 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
(ii) 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, CFC and CIF (but
excluding, in each case, Debt consisting of such Borrower’s obligations
hereunder (including the Local Currency Addendum or the Japan Local Currency
Addendum, if applicable), under the 364-Day Credit Agreement or under the 2005
Five-Year Credit Agreement), 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
(iii) 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, CFC and CIF, 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
(iv) any
“Event
of
Default” shall occur with respect to such Borrower under the 364-Day Credit
Agreement or the 2005 Five-Year Credit Agreement, or
(v) in
the case of CIF
or CFC, any CFSC Event of Default shall occur, or the CFSC Guaranty shall be
terminated, revoked, or declared void, voidable, invalid or unenforceable;
or
(e) 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
shall admit in writing its 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 thirty
(30) 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);
or
(f) 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, CFC and CIF,
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;
(g) (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;
(h) With
respect to
CFSC, CFC or CIF, a Change of Control shall occur; or
(i) With
respect to
CFSC, CFC or CIF, 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;
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; (ii) in the case of a CFSC Event
of Default or a CIF Event of Default, the Local Currency Agent, (x) shall at
the
request, or may with the consent, of the Majority Local Currency Banks, by
notice to CIF, declare the obligation of each Local Currency Bank to make Local
Currency Advances to CIF to be terminated, whereupon the same shall forthwith
terminate, and (y) shall at the request, or may with the consent, of the
Majority Local Currency Banks, by notice to CIF, declare the Local Currency
Advances to CIF, all interest thereon and all other amounts payable under this
Agreement and the Local Currency Addendum to be forthwith due and payable,
whereupon such 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 CIF; and (iii) 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. 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 CIF and CFC, any CFSC Event of Default shall be a CIF Event of Default and
a
CFC Event of Default.
ARTICLE
VII
THE
AGENT
SECTION
7.01.
Authorization
and Action.
Each Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and
to exercise such powers under this Agreement as are delegated to the Agent
by
the terms hereof, together with such powers as are
reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Advances or any other amounts due hereunder, under the Japan Local Currency
Addendum or under the Local Currency
Addendum),
the Agent shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting
or
refraining from acting) upon the instructions of the Majority Banks, the
Majority Japan Local Currency Banks or the Majority Local Currency Banks, as
applicable (or in the case of actions that require the consent of all of the
Banks hereunder, all of the Banks), and such instructions shall be binding
upon
all Banks; provided,
however,
that the Agent
shall not be required to take any action which
exposes
the Agent
to personal
liability or which is contrary to this Agreement, the Japan Local Currency
Addendum, the Local Currency Addendum or applicable law. The Agent agrees to
give to each Bank prompt notice of each notice given to it by any Borrower
pursuant to the terms of this Agreement.
SECTION
7.02.
Agent’s
Reliance, Etc.
Neither the Agent,
the Japan Local Currency Agent, the Local Currency Agent, nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, the Local Currency Addendum or the Japan Local Currency
Addendum, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each of the Agent, the
Japan Local Currency Agent, and the Local Currency Agent: (i) may treat the
Bank
that made any Advance as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance providing for the assignment thereof,
in accordance
with
Section
8.07,
or receives other
written notice of the assignment or transfer thereof signed by such payee and
in
form satisfactory to the Agent; (ii) may consult with legal counsel (including
counsel for any Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or
representation
to any Bank and shall not be responsible to any Bank for any statements,
warranties or representations made in or in connection with this Agreement,
the
Japan Local Currency Addendum or the Local Currency Addendum; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance
of
any of the terms, covenants or conditions of this Agreement (other than delivery
to the Agent of the items required by Section
3.01),
the Japan Local
Currency Addendum or the Local Currency Addendum on the part of any Borrower
or
to inspect the property (including the books and records) of any
Borrower; (v)
shall not be
responsible to any Bank for the due execution (other than its due execution
and
delivery), legality, validity, enforceability, genuineness, sufficiency or
value
of this Agreement, the Japan Local Currency Addendum or the Local Currency
Addendum or any other instrument or document furnished pursuant hereto or
thereto; and (vi) shall incur no liability under or in respect of this
Agreement, the Japan Local Currency Addendum or the Local Currency Addendum
by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable or telex) reasonably believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION
7.03.
Citibank
and
Affiliates.
With respect to
its Commitment, Revolving Credit Commitment, Local Currency Commitment, the
Advances made by it and any Notes issued to it, Citibank shall have the same
rights and powers under this Agreement and the Local Currency Addendum as any
other Bank and may exercise the same as though it were not the Agent and
Citibank International plc were not the Local Currency Agent; and the term
“Bank” or “Banks” shall, unless otherwise expressly indicated,
include Citibank
in its
individual capacity.
Citibank
and its affiliates may accept deposits from, lend money
to, act as
trustee under indentures of, and generally engage in any kind of business with,
any Borrower, any of its subsidiaries
and
any Person who may do business with or own securities of any Borrower or
any such
subsidiary,
all as if Citibank were not the Agent and Citibank International plc were not
the Local Currency Agent and without any duty to account therefor to the
Banks.
SECTION
7.04.
Bank
Credit
Decision.
Each Bank
acknowledges that it has, independently and without reliance upon the Agent,
the
Local Currency Agent, the Japan Local Currency Agent or any other Bank and
based
on the financial statements referred to in Section
4.01
and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon
the Agent, the
Local Currency Agent, the Japan Local Currency Agent or any other Bank and
based
on such documents and information
as it
shall deem appropriate at the time, continue to make its own credit decisions
in
taking or not taking action under this Agreement.
SECTION
7.05.
Indemnification.
The Banks agree
to indemnify the Agent, the Japan Local Currency Agent and the 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 Local Currency Advances, as applicable, then held by
each
of them (or if no Revolving Credit Advances, Japan Local Currency Advances,
or
Local Currency Advances are at the time outstanding,
ratably according to the respective amounts of their Commitments, Japan Local
Currency Commitments or 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, the Japan Local Currency
Agent or the Local Currency Agent in any way relating to or arising out of
this
Agreement, the Japan Local Currency Addendum, or the Local Currency Addendum
or
any action taken or omitted by the Agent, the Japan Local Currency Agent or
the
Local Currency Agent under this Agreement, the Japan Local Currency Addendum
or
the 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 Agent’s, the Japan Local Currency Agent’s or the Local Currency Agent’s
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank agrees to reimburse the Agent, the Japan Local Currency Agent and
the
Local Currency Agent promptly upon demand for its ratable share (determined
as
specified in the first sentence of this Section 7.05) of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent, the Japan
Local Currency Agent or the 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,
the
Japan Local Currency Addendum or the Local Currency Addendum, to the extent
that
the Agent, the Japan Local Currency Agent or the Local Currency Agent is not
reimbursed for such expenses by the Borrowers.
SECTION
7.06.
Successor
Agent.
The Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrowers and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have
the
right to appoint a successor Agent. If no successor Agent shall have
been so
appointed by the
Majority Banks, and shall have accepted such appointment, within 30 days after
the retiring Agent’s giving of notice of resignation or the Majority Banks’
removal of the retiring
Agent,
then the retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Provided that no Event of Default or
event
which, with the giving of notice or lapse of time, or both, would constitute
an
Event of Default has occurred and is continuing, any successor Agent appointed
by the Majority Banks or by the retiring Agent shall have received the prior
approval of the Borrowers (which approval shall not be unreasonably withheld).
Upon the
acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties
of the
retiring Agent, and the retiring Agent shall be discharged from its duties
and
obligations under this Agreement. After any retiring Agent’s resignation or
removal hereunder as
Agent, or any
retiring Japan Local Currency Agent’s or Local Currency Agent’s resignation or
removal under the Japan Local Currency Addendum or the Local Currency Addendum,
the provisions of this Article
VII
shall inure to its
benefit as to any actions taken
or omitted to
be taken by it while it was Agent under this Agreement, the Japan Local Currency
Agent under the Japan Local Currency Addendum or the Local Currency Agent under
the Local Currency Addendum, as applicable.
SECTION
7.07.
The
Arrangers.
Notwithstanding
anything herein to the contrary,
the Arrangers
shall not have any duties or liabilities under this Agreement, except in their
capacity, if any, as Banks.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01.
Amendments,
Etc.
No amendment or
waiver of any provision of this Agreement, the Local Currency Addendum, 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, the Majority Local
Currency 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: (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
Local Currency Commitments, 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 “Majority Banks,” “Majority Local Currency Banks” or
“Majority Japan Local Currency Banks,” or the percentage of the Commitments or
of the aggregate unpaid principal amount of the Advances and Local Currency
Participations, or the number of Banks, which shall be required for
the Banks,
or any of
them, to take any action hereunder or under the Local Currency Addendum or
the
Japan Local Currency Addendum, or the percentage of the Local Currency
Commitments or Japan Local Currency Commitments or the aggregate unpaid Local
Currency Advances or Japan Local Currency Advances, or the number
of Local
Currency Banks, or Japan Local Currency Banks, which shall be required for
the
Local Currency Banks or the Japan Local Currency Banks, as applicable, or any
of
them, to take
any action
hereunder or under the Local Currency Addendum, or the Japan Local Currency
Addendum, as applicable, (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, and the
Local Currency 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, the Local Currency Agent, or the
Japan
Local Currency Agent, as applicable, under this Agreement, the Local Currency
Addendum, the Japan Local Currency Addendum or any Note.
SECTION
8.02.
Notices,
Etc.
(a) Except as
otherwise provided herein, all notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex
or telecopy
communication) and mailed, telegraphed, telexed, telecopied or delivered, if
to
Caterpillar, at its address at 000 X.X. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000-0000, Attention: Manager - Corporate Finance Services; if to CFSC, CIF,
or
CFC, at 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
Treasurer; if to any Bank, at its Domestic Lending Office specified beneath
its
name on its respective signature page hereto; and if to the Agent, at its
address at Bank Loan Syndications, Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx 00000, Attention:
Bank
Loan Syndications, Telecopier No. 000-000-0000, with a copy to Citicorp North
America, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxxx X’Xxxxxxx; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall be deemed to have been given three (3) Business
Days after deposit in the United States mail (registered or
certified, with
postage
prepaid and properly addressed), when delivered to the telegraph company, upon
receipt of a telex or telecopy or when delivered in person or by courier
service, except that notices
and
communications to the Agent pursuant to Article
II
or VII
shall not be
effective until received by the Agent.
(b)
Each Borrower
hereby agrees that it will provide to the Agent (unless otherwise agreed to
by
the Agent) all information, documents and other materials that it is obligated
to furnish to the Agent or the Banks, as applicable, pursuant to this Agreement,
including, without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information materials,
but
excluding any such communication that (i) relates to a request for an extension
of credit (including any election of an interest rate or Interest Period
relating thereto), (ii) relates to the payment of any principal or other amount
due under this Agreement prior to the scheduled date therefor, (iii) provides
notice of any Event of Default or (iv) is required to be delivered to satisfy
any condition precedent to the effectiveness of this Agreement and/or any
Borrowing or other extension of credit hereunder (all such non-excluded
communications being referred to herein collectively as “Communications”),
by transmitting
the Communications in an electronic/soft medium in a format acceptable to the
Agent to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. In addition, each Borrower agrees to
continue to provide the Communications to the Agent in the manner otherwise
specified in this Agreement but only to the extent requested by the
Agent.
(c)
The Agent
agrees to make the Communications available to the Banks by posting the
Communications on Intralinks or a substantially similar electronic transmission
system (the “Platform”).
Each Borrower
acknowledges 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.
(d)
THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY
OF
THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS. 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 COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY
TO THE BORROWERS, ANY BANK OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF THE BORROWERS’ OR THE AGENT’S TRANSMISSION OF
COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF
ANY
AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
(e)
The Agent
agrees that the receipt of the Communications by the Agent at its e-mail address
set forth above shall constitute effective delivery of the Communications to
the
Agent for purposes of Section
8.02.
Each Bank agrees
that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Bank for purposes of Section
8.02.
Each Bank agrees
to notify the Agent in writing (including by electronic communication) from
time
to time of such Bank’s e-mail address(es) to which the foregoing notice may be
sent by electronic transmission and (ii) that the foregoing notice may be sent
to such e-mail address(es); provided
that (x) notices
and other communications sent to an e-mail address shall be deemed received
upon
the sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided
that if such
notice or other communication is not sent during the normal business hours
of
the recipient, such notice or communication shall be deemed to have been sent
at
the opening of business on the next business day for the recipient, and (y)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (x) of notification that such
notice or communication is available and identifying the website address
therefor.
SECTION
8.03.
No
Waiver;
Remedies.
No failure on the
part of any party hereto to exercise, and no delay in exercising, any right
hereunder, under the Local Currency Addendum,
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. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION
8.04.
Costs,
Expenses
and Taxes.
(a) Caterpillar
agrees to pay on demand all costs and expenses of the Agent, the Local Currency
Agent and the Japan Local Currency Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Local Currency Addendum, 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, the Local Currency Agent and the Japan Local Currency Agent with respect
thereto and with respect to advising the Agent, the Local Currency Agent and
the
Japan Local Currency Agent as to their rights and responsibilities under this
Agreement, the Local Currency Addendum, and the Japan Local Currency Addendum.
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 Local Currency Addendum, the Japan Local Currency Addendum,
the
Notes and the other documents to be delivered hereunder. If any such costs
or
expenses are attributable to a particular Borrower, such costs or expenses
shall be
paid by such Borrower. In all other cases, such costs or expenses shall be
paid
by Caterpillar.
(b) 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 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. 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. 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 “Reference
Investment”),
submitted to
such Borrower and the Agent by such Bank, shall be conclusive and binding for
all purposes, absent manifest error or error in the determination of the rate
applicable to the Reference Investment identified therein. 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.
(c) The
Borrowers
severally agree to indemnify and hold harmless each of the Agent, the Local
Currency Agent, the Japan Local Currency Agent, each Bank, each Local Currency
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 Local Currency Agent,
the
Japan Local Currency Agent, such Bank, such Local Currency 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) 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 Local Currency Agent, the Japan Local Currency Agent, such Bank, such Local
Currency Bank or such Japan Local Currency Bank, or any such director, officer
or employee is a party to such transactions or (ii) related to such
Borrower’s entering into this Agreement, the Local Currency Addendum, 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. If any such claims,
damages, liabilities and expenses are attributable to a particular Borrower,
such indemnity shall be provided by such Borrower. In all other cases, such
indemnity shall be provided by Caterpillar. 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 or judicial order.
SECTION
8.05.
Right
of
Set-off.
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 Local Currency Addendum,
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 Local Currency Addendum, the Japan Local Currency Addendum,
or
such Note and although such obligations may be unmatured. 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. 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.
SECTION
8.06.
Binding
Effect.
This Agreement
shall be deemed to have become effective as of September 21, 2006 when it shall
have been executed by the Borrowers, the Local Currency Agent, 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 Local Currency 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.
SECTION
8.07.
Assignments
and
Participations.
(a) (i)
Each Bank may,
upon not less than two (2) Business Days prior notice to the Agent, assign
to
one or more of such Bank’s 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 Local Currency Commitment, if
applicable, 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 Bank’s 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 Bank’s Commitment (calculated as at the date of such
assignment) or outstanding Advances (if such Bank’s 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, and (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.
(ii) In
addition, each
Bank may, with the consent of Caterpillar and CFSC (which consent shall not
be
unreasonably withheld or delayed), 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 Local Currency Commitment, if applicable, its Japan
Local
Currency Commitment, if applicable, the Advances owing to it and the Note or
Notes, if any, held by it); provided,
that (A) each
such assignment shall be of a constant, and not a varying, percentage of all
of
the assigning Bank’s 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 Bank’s Commitment (calculated as at the date of such
assignment) or outstanding Advances (if such Bank’s Commitment has been
terminated) and (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.
(iii) 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, the Local Currency Addendum, if
applicable, 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 Bank’s rights and obligations under this Agreement, the Local Currency
Addendum, if applicable, and the Japan Local Currency Addendum, if applicable,
such Bank shall cease to be a party hereto and thereto).
(b) 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: (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, the Local Currency Addendum or
the
Japan Local Currency Addendum or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the Local
Currency Addendum, 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.
(c) 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 “Register”). The entries in the Register shall be prima
facie
evidence of such
matters, and the Borrowers, the Agent, the Japan Local Currency Agent, the
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. 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.
(d) 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
hereto, (i) accept such Assignment and Acceptance, and (ii) give prompt notice
thereof to the Borrowers. 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. 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.
(e) 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,
Local Currency Commitment, if applicable, Japan Local Currency Commitment,
if
applicable, the Advances owing to it and the Notes, if any, held by it);
provided,
however,
that (i) such
Bank’s 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 Bank’s rights and obligations under this
Agreement.
(f) Notwithstanding
any
other provision set forth in this Agreement, any Bank at any time may assign,
as
collateral or otherwise, any of its rights (including, without limitation,
rights to payments of principal of and/or interest on the Advances) under this
Agreement to any Federal Reserve Bank without notice to or consent of the
Borrowers or the Agent.
SECTION
8.08.
Governing
Law;
Submission to Jurisdiction; Service of Process.
(a) This
Agreement and
the Notes shall be governed by, and construed in accordance with, the laws
of
the State of New York.
(b) Each
of the Agent,
the Japan Local Currency Agent, the Local Currency Agent, each Bank, each Japan
Local Currency Bank, each 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. 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
such Borrower at its address specified in Section
8.02.
(c) Nothing
in this
Section
8.08
shall affect the
right of any Borrower, the Agent, the Local Currency Agent, the Japan Local
Currency Agent, any Bank, any Local Currency 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 Local Currency Agent, the Japan Local
Currency Agent, any Bank, any Local Currency 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.
SECTION
8.09.
Caterpillar
as
Agent for the Borrowers; CFSC as Service of Process Agent for CIF and
CFC.
CFSC, CIF 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 “Borrower
Agent”).
Each of
CIF and CFC
hereby irrevocably (a) consents to service of process upon it by mailing or
delivering such service to CFSC, which each
of CIF and CFC
appoints as its agent for such purpose, at CFSC’s address set forth in
Section
8.02,
and each of CIF
and CFC authorizes and directs CFSC to accept such service, and (b) waives,
to
the fullest possible extent, any defense of forum non conveniens.
CFSC agrees to
act as agent for service of process for each of CIF and CFC.
SECTION
8.10.
Judgment
Currency.
If for the
purposes of obtaining judgment in any court it is necessary to convert a sum
due
under this Agreement, under the Local Currency Addendum, under the Japan Local
Currency Addendum or under any of the Notes in any currency (the “Original
Currency”)
into another
currency (the “Other
Currency”),
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. 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.
SECTION
8.11.
Execution
in
Counterparts.
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.
SECTION
8.12.
Waiver
of Jury
Trial.
EACH BORROWER,
THE AGENT, THE LOCAL CURRENCY AGENT, THE JAPAN LOCAL CURRENCY AGENT, EACH BANK,
EACH LOCAL CURRENCY 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 LOCAL CURRENCY ADDENDUM, THE
JAPAN LOCAL CURRENCY ADDENDUM, OR ANY NOTE. 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.
SECTION
8.13.
USA
Patriot Act
Notification.
The following
notification is provided to the Borrowers pursuant to Section 326 of the USA
Patriot Act:
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. 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. Accordingly, when
any
Borrower opens an account, the Agent and the Banks will ask for the Borrower's
name, tax identification number (if applicable), business address, and other
information that will allow the Agent and the Banks to identify such Borrower.
The Agent and the Banks may also ask to see such Borrower's legal organizational
documents or other identifying documents.
SECTION
8.14.
Termination
of
Prior Agreement.
Citibank, as
Agent under the Prior Agreement (the "Existing
Agent")
and each of the
Banks party to the Prior Agreement (the "Existing
Banks"),
hereby confirm
that upon the Existing Agent's receipt of all principal, accrued interest,
fees,
expenses, costs and other amounts outstanding under the Prior Agreement, and
the
Existing Agent's 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 Borrowers'
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). Each of the Borrowers hereby
acknowledges and agrees to the termination of the Prior Agreement pursuant
to
this Section
8.14.
ARTICLE
IX
CFSC
GUARANTY
SECTION
9.01.
The
Guaranty.
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 each of CIF and CFC, and the due
and punctual payment of
all other
amounts payable by CIF and CFC under this Agreement, the Local Currency Addendum
and the Japan Local Currency Addendum. Upon failure by either CIF or 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.
SECTION
9.02.
Guaranty
Unconditional.
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:
(i) any
extension,
renewal, settlement, compromise, waiver or release in respect of any obligation
of CIF or CFC under this Agreement, the Local Currency Addendum or the Japan
Local Currency Addendum, by operation of law or otherwise, or the exchange,
release or non-perfection of any collateral security therefor;
(ii) any
modification or
amendment of or supplement to this Agreement, the Local Currency Addendum,
the
Japan Local Currency Addendum, or any Note;
(iii) any
change in the
corporate existence, structure or ownership of CIF or CFC, including the merger
of CIF or CFC, into another entity, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting CIF or its assets, or
CFC
or its assets, or any resulting release or discharge of any obligation of CIF
or
CFC under this Agreement, the Local Currency Addendum or the Japan Local
Currency Addendum, as applicable;
(iv) the
existence of
any claim, set-off or other rights which CFSC may have at any time against
CIF
or CFC, the Agent, the Local Currency 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;
(v) any
invalidity or
unenforceability relating to or against CIF or CFC for any reason of any
provision or all of this Agreement, the Local Currency Addendum or the Japan
Local Currency Addendum, or any provision of applicable law or regulation
purporting to prohibit the payment by CIF or CFC of the principal of or interest
on any Advance or any other amount payable by it under this Agreement;
or
(vi) any
other act or
omission to act or delay of any kind by CIF, CFC, the Agent, the Local Currency
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 CFSC’s obligations under this
Article
IX,
of CIF’s
obligations under this Agreement or the Local Currency Addendum, or of CFC’s
obligations under this Agreement or the Japan Local Currency
Addendum.
SECTION
9.03.
Discharge
Only
Upon Payment In Full; Reinstatement in Certain Circumstances.
CFSC’s
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 CIF and CFC and all other
amounts payable by CFSC, CIF and CFC under this Agreement, the Local Currency
Addendum and the Japan Local Currency Addendum shall have been paid in full
and
shall survive the Termination Date.
If at any
time any
payment of the
principal of or interest on any Advance to CIF or CFC or any other amount
payable by
CIF or CFC under
this Agreement or the Local Currency Addendum or the Japan Local Currency
Addendum is rescinded or must be otherwise
restored
or returned upon the insolvency, bankruptcy or reorganization of CIF or CFC
or
otherwise, CFSC’s 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.
SECTION
9.04.
Waiver
by
CFSC.
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 Local Currency Agent, the
Japan Local Currency Agent, any Bank or any other Person against CIF or CFC
or
any other Person or any collateral security. CFSC waives any benefit of the
collateral, if any, which may from time to time secure the Advances to
CIF
or
CFC or any of CIF’s or CFC’s other obligations under this Agreement, the Local
Currency Addendum, or the Japan Local Currency Addendum, and authorizes the
Agent, the Local Currency Agent, the Japan Local Currency Agent, or the Banks
to
take any action or exercise any remedy with respect thereto which the Agent,
the
Local Currency Agent, the Japan Local Currency Agent, or the Banks in its or
their discretion shall determine, without notice to CFSC. In the event the
Agent, the Local Currency Agent, the Japan Local Currency Agent, or the Banks
elect to give notice of any action with respect to any such collateral, ten
(10)
days’ 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.
SECTION
9.05.
Subrogation.
Upon making any
payment hereunder, CFSC shall be subrogated to the rights of the Banks against
CIF or CFC , as applicable, 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 CIF and CFC
and all other amounts
payable by
CIF and CFC under this Agreement, the Local Currency Addendum and the Japan
Local Currency Addendum have been paid in full.
SECTION
9.06.
Stay
of
Acceleration.
In the event that
acceleration of the time for payment of any amount payable by CIF or CFC under
this Agreement, the Local Currency Addendum
or the
Japan Local Currency Addendum is stayed upon the insolvency, bankruptcy or
reorganization of CIF or CFC, as applicable, 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.
The
remainder of
this page is intentionally blank.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
By
/s/Xxxxx
X.
Xxxxxx
Name:
Xxxxx X.
Xxxxxx
Title:
Treasurer
CATERPILLAR
FINANCIAL
SERVICES
CORPORATION
By
/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Treasurer
CATERPILLAR
INTERNATIONAL
FINANCE
p.l.c.
By
/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Appointee
CATERPILLAR
FINANCE
CORPORATION
By
/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Director
CITIBANK,
N.A., as
Agent
By
/s/Xxxxx
X.
Xxx
Name:
Xxxxx X.
Xxx
Title:
Vice
President
CITIBANK
INTERNATIONAL plc, as Local Currency Agent
By
/s/Xxxx
Xxxxx
Name:
Xxxx
Xxxxx
Title:
Vice
President
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as Japan Local Currency Agent
By
/s/Muneya
Taniguchi
Name:
Muneya
Taniguchi
Title:
Chief
Manager
Banks
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$295,000,000 $238,750,000 CITIBANK,
N.A.
By
/s/Xxxxx
X.
Xxx
Name:
Xxxxx X.
Xxx
Title:
Vice
President
Domestic
Lending
Office:
Citibank,
N.A.
0
Xxxxx Xxx, Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxxx Xxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Citibank,
N.A.
0
Xxxxx Xxx, Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxxx Xxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$280,000,000 $261,250,000 JPMORGAN
CHASE
BANK, N.A.
By
/s/Xxxxxxxx
Xxxxx
Name:
Xxxxxxxx
Xxxxx
Title:
Vice
President
Domestic
Lending
Office:
JPMorgan
Chase
Bank, N.A.
0000
Xxxxxx Xxxxxx,
00xx
Xxxxx
Xxxxxxx,
XX
Attention:
Xxxxxx
X. Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
JPMorgan
Chase
Bank, N.A.
0000
Xxxxxx Xxxxxx,
00xx
Xxxxx
Xxxxxxx,
XX
Attention:
Xxxxxx
X. Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$280,000,000 $280,000,000 BANK
OF AMERICA,
N.A.
By
/s/Xxxxxxx
X. Xxxxxxxx
Name:
Xxxxxxx X.
Xxxxxxxx
Title:
Senior Vice
President
Domestic
Lending
Office:
Bank
of America,
N.A.
0000
Xxxxxxx
Xx
Xxxxxxx,
XX
Attention:
Xxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Bank
of America,
N.A.
0000
Xxxxxxx
Xx
Xxxxxxx,
XX
Attention:
Xxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$230,000,000 $211,250,000 ABN
AMRO BANK
N.V.
By
/s/Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx
Xxxxxxxxx
Title:
Managing
Director
By
/s/Xxxxxxx
Xxxx
Name:
Xxxxxxx
Xxxx
Title:
Vice
President
Domestic
Lending
Office:
ABN
AMRO Bank
N.V.
000
X. Xxxxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Credit
Administration/Loan Administration
Fax: (000)
000-0000/5152
with
copies
to:
ABN
AMRO Bank
N.V.
000
X. Xxxxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Xxxxxxx
Xxxxxxx
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Same
as
above.
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$230,000,000 $198,750,000 BARCLAYS
BANK
PLC
By
/s/Xxxxxx
XxXxxxxx
Name:
Xxxxxx
XxXxxxxx
Title:
Associate
Director
Domestic
Lending
Office:
Barclays
Bank
PLC
000
Xxxx Xxxxxx,
0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxx
Xxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Barclays
Bank
PLC
000
Xxxx Xxxxxx,
0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxx
Xxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$200,000,000 $168,750,000 SOCIÉTÉ
GÉNÉRALE
By
/s/Xxxxxxxx
Xxxxxxx
Name:
Xxxxxxxx
Xxxxxxx
Title:
Vice
President
Domestic
Lending
Office:
Société
Générale
0000
Xxxxxx xx
Xxxxxxxx
Xxx
Xxxx XX
00000
Attention:
Xxxxxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Société
Générale
0000
Xxxxxx xx
Xxxxxxxx
Xxx
Xxxx XX
00000
Attention:
Xxxxxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$165,000,000 $146,250,000 ROYAL
BANK OF
CANADA
By
/s/Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx
Xxxxxxx
Title:
Authorized
Signatory
Domestic
Lending
Office:
Royal
Bank of
Canada, New York Branch
Xxx
Xxxxxxx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Manager,
Loan Administration
Phone: (000)
000-0000/(000) 000-0000
Fax: (000)
000-0000/(000) 000-0000
Eurocurrency
Lending Office:
Royal
Bank of
Canada, New York Branch
Xxx
Xxxxxxx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Manager,
Load Administration
Phone: (000)
000-0000/(000) 000-0000
Fax: (000)
000-0000/(000) 000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$160,000,000 $147,500,000 WESTLB
AG, New York
Branch
By
/s/Xxxxxxxxx
Xxxxxxxxxx
Name:
Xxxxxxxxx
Xxxxxxxxxx
Title:
Managing
Director
By
/s/Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Executive
Director
Domestic
Lending
Office:
WestLB
AG, New York
Branch
1211
Avenue of the
Americas, 25th
Floor
Attention:
Xxxxxx
Xxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
WestLB
AG, New York
Branch
1211
Avenue of the
Americas, 25th
Floor
Attention:
Xxxxxx
Xxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$165,000,000 $165,000,000 TORONTO
DOMINION
(TEXAS) LLC
By
/s/Xxxxx
X.
Xxxxx
Name:
Xxxxx X.
Xxxxx
Title:
Authorized
Signatory
Domestic
Lending
Office:
TD
Securities
Royal
Trust
Tower
00
Xxxx Xxxxxx Xxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X 0X0
Attention:
Xxxx
Xxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
TD
Securities
Royal
Trust
Tower
00
Xxxx Xxxxxx Xxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X 0X0
Attention:
Xxxx
Xxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$125,000,000 $125,000,000 STANDARD
CHARTERED
BANK
By
/s/Xxxxx
X.
Xxxxxxxxx
Name:
Xxxxx X.
Xxxxxxxxx
Title:
Associate
Director
By
/s/Xxxxxx
X.
Xxxxxxxxxx
Name:
Xxxxxx X.
Xxxxxxxxxx
Title:
Credit
Documentation; Credit Risk Control
Domestic
Lending
Office:
Standard
Chartered
Bank
Xxx
Xxxxxxx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxx X.
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Standard
Chartered
Bank
Xxx
Xxxxxxx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxx X.
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$100,000,000 $100,000,000 AUSTRALIA
AND NEW
ZEALAND
BANKING
GROUP
LIMITED
By
/s/Xxxx
X.
Xxxx
Name:
Xxxx X.
Xxxx
Title:
Director
Domestic
Lending
Office:
Australia
and New
Zealand Banking Group Limited
0000
Xxxxxx xx xxx
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxx
Xxxxxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Australia
and New
Zealand Banking Group Limited
0000
Xxxxxx xx xxx
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxx
Xxxxxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$100,000,000 $0 THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD.
By
/s/Tsuguyuki
Umene
Name:
Tsuguyuki
Umene
Title:
Deputy
General Manager
Domestic
Lending
Office:
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
000
Xxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx,
XX
00000
Attention:
Xxxxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
000
Xxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx,
XX
00000
Attention:
Xxxxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$100,000,000 $81,250,000 LLOYDS
TSB BANK
plc
By
/s/Windsor
X. Xxxxxx
Name:
Windsor X.
Xxxxxx
Title:
Director,
Corporate Banking, USA D061
By
/s/Xxxxxx
X.
Xxxxxxxxxx
Name:
Assistant
Vice President
Title:
Financial
Institutions USA K-027
Domestic
Lending
Office:
Lloyds
TSB Bank
plc
1251
Avenue of the
Americas—39th
Floor
New
York, NY
10020
Attention:
Xxxxxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Lloyds
TSB Bank
plc
1251
Avenue of the
Americas—39th
Floor
New
York, NY
10020
Attention:
Xxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$100,000,000 $68,750,000 COMMERZBANK
AG,
NEW
YORK AND GRAND
CAYMAN BRANCHES
By
/s/H.
Neugartner
Name:Hajo
Neugartner
Title:
Vice
President
By
/s/
Xxxxxx
Xxxxxx
Name:
Xxxxxx
Xxxxxx
Title:
Assistant
Vice President
Domestic
Lending
Office:
Commerzbank
AG, New
York and
Grand
Cayman
Branches
Two
World Financial
Center
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Commerzbank
AG, New
York and
Grand
Cayman
Branches
Two
World Financial
Center
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$85,000,000 $85,000,000 XXXXXXX
STREET
COMMITMENT
CORPORATION
(Recourse only to assets of Xxxxxxx Street Commitment Corporation)
By
/s/Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Assistant
Vice President
Domestic
Lending
Office:
Xxxxxxx
Street
Commitment Corporation
00
Xxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxx
Xxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Xxxxxxx
Street
Commitment Corporation
00
Xxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxx
Xxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$85,000,000 $85,000,000 XXXXXXX
XXXXX BANK
USA
By
/s/Xxxxx
Xxxxx
Name:
Xxxxx
Xxxxx
Title:
Director
Domestic
Lending
Office:
Xxxxxxx
Xxxxx Bank
USA
00
X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx Xxxx, XX
00000
Attention:
Xxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Xxxxxxx
Xxxxx Bank
USA
00
X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx Xxxx, XX
00000
Attention:
Xxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$50,000,000 $50,000,000 ING
CAPITAL
LLC
By
/s/Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Managing
Director
Domestic
Lending
Office:
ING
Capital
LLC
0000
Xxxxxx xx xxx
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
ING
Capital
LLC
0000
Xxxxxx xx xxx
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxx
Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$25,000,000 $25,000,000 MELLON
BANK,
N.A.
By
/s/Xxxxxxx
X. Xxxxx
Name:
Xxxxxxx X.
Xxxxx
Title:
Senior Vice
President
Domestic
Lending
Office:
Mellon
Bank,
N.A.
000
Xxxx Xxxxxx -
Xxxx 000
Xxxxxxxxxx,
XX
00000
Attention:
Xxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Mellon
Bank,
N.A.
000
Xxxx Xxxxxx -
Xxxx 000
Xxxxxxxxxx,
XX
00000
Attention:
Xxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$50,000,000 $50,000,000 U.S.
BANK, NATIONAL
ASSOCIATION
By
/s/Xxxxxxxx
X. Xxxxxx
Name:
Xxxxxxxx X.
Xxxxxx
Title:
Vice
President
Domestic
Lending
Office:
U.S.
Bank, National
Association
MK-WI-T5CB
Xxxxxxxxx,
XX
00000
Attention:
Xxxxxxx
Xxxxxxx Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
U.S.
Bank, National
Association
MK-WI-T5CB
Xxxxxxxxx,
XX
00000
Attention:
Xxxxxxx
Xxxxxxx Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$50,000,000 $50,000,000 BANCA
NAZIONALE DEL
LAVORO S.p.A., NEW YORK BRANCH
By
/s/Xxxxx
Xx
Xxxxx
Name:
Xxxxx Xx
Xxxxx
Title:
Relationship
Manager
By
/s/Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx
Xxxxxxxx
Title:
Relationship
Manager
Domestic
Lending
Office:
Banca
Nazionale Del
Lavoro S.p.A., New York Branch
00
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxx
Xxxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Banca
Nazionale Del
Lavoro S.p.A., New York Branch
00
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxx
Xxxxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$50,000,000 $37,500,000 KBC
BANK
N.V.
By
/s/Xxxx-Xxxxxx
Diels
Name:
Xxxx-Xxxxxx
Diels
Title:
First Vice
President
By
/s/Xxxxxxx
Xxxxxxxxx
Name:Xxxxxxx
Xxxxxxxxx
Title:
Vice
Presidenet
Domestic
Lending
Office:
KBC
Bank
N.V.
1177
Avenue of the
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Stefano
Snozzi
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
KBC
Bank
N.V.
1177
Avenue of the
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:
Stefano
Snozzi
Phone: (000)
000-0000
Fax: (000)
000-0000
COMMITMENT REVOLVING
CREDIT
COMMITMENT
$50,000,000 $50,000,000 THE
NORTHERN TRUST
COMPANY
By
/s/Xxxxx
X.
Xxxx
Name:
Xxxxx X.
Xxxx
Title:
Vice
President
Domestic
Lending
Office:
The
Northern Trust
Company
00
X. XxXxxxx Xxxxxx
Xxxxxxx,
XX
00000
Attention:
Xxxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
The
Northern Trust
Company
00
X. XxXxxxx Xxxxxx
Xxxxxxx,
XX
00000
Attention:
Xxxxxx
Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
TOTAL
COMMITMENT TOTAL
REVOLVING CREDIT
COMMITMENT:
$2,975,000,000 $2,625,000,000
EXHIBIT
A
FORM
OF
NOTE
Dated:
__________,
200_
FOR
VALUE RECEIVED,
the undersigned, [Caterpillar Inc./Caterpillar Financial Services Corporation]
(the “Borrower”), HEREBY PROMISES TO PAY to the order of
______________________________________________________________________________
(the “Bank”) 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) for such Advance.
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.
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. 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.
This
Promissory
Note is one of the Notes referred to in, and is entitled to the benefits of,
the
Credit Agreement (Five-Year Facility) dated as of September 21, 2006, as the
same may be amended, restated, supplemented or otherwise modified from time
to
time (the “Credit Agreement”) among the Borrower, [names of the other Borrowers
under the Credit Agreement] (together with the Borrower, the “Borrowers”) the
Bank and certain other banks parties thereto, Citibank International plc, as
Local Currency Agent, 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.
The Credit Agreement, among other things, (i) provides for the making of
advances (the “Advances”) by the Bank to the Borrowers from time to time in an
aggregate amount not to exceed at any time outstanding such Bank’s 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.
The
Borrower hereby
waives presentment, demand, protest and notice of any kind. 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.
This
Promissory
Note shall be governed by, and construed in accordance with, the laws of the
State of New York, United States.
[CATERPILLAR
INC./CATERPILLAR
FINANCIAL
SERVICES
CORPORATION]
By
Title:
ADVANCES,
MATURITIES, AND PAYMENTS OF PRINCIPAL
|
Date
|
Type
of
Advance
|
Currency
and
Amount
of
Advance
|
Maturity
of
Advance
|
Amount
of
Principal
Paid
or
Prepaid
|
Unpaid
Principal
Balance
|
Notation
Made
By
|
EXHIBIT
B-1
NOTICE
OF REVOLVING
CREDIT BORROWING
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
Xxx
Xxxxx Xxx,
Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
000
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Xxxxxxxx
X’Xxxxxxx
Ladies
and
Gentlemen:
The
undersigned,
[Caterpillar Inc./Caterpillar Financial Services Corporation], refers to the
Credit Agreement (Five-Year Facility) dated as of September 21, 2006, as the
same may be amended, restated, supplemented or otherwise modified from time
to
time (the “Credit Agreement,” 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, Citibank International plc,
as
Local Currency Agent, 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 “Proposed Revolving
Credit Borrowing”) as required by Section
2.02(a)
of the Credit
Agreement:
(i) The
Business Day of
the Proposed Revolving Credit Borrowing is __________, 200_.
(ii) The
Type of
Revolving Credit Advances comprising the Proposed Revolving Credit Borrowing
is
[Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The
currency of the
Proposed Revolving Credit Borrowing is ______.
(iv) The
aggregate
amount of the Proposed Revolving Credit Borrowing is $__________.
(v) The
Interest Period
for each Advance made as part of the Proposed Revolving Credit Borrowing is
[30
days] [_____ month[s]].
(vi) The
proceeds of the
Proposed Revolving Credit Borrowing should be remitted in same day funds to
[Account Number, Bank Name, Account Name, ______].
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:
(A) 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
(B) 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
Very
truly
yours,
[CATERPILLAR
INC./CATERPILLAR
FINANCIAL
SERVICES
CORPORATION]
By
Title:
1 To
be included in
Notices of Revolving Credit Borrowing pursuant to Section 3.02, unless
Section
3.03 shall apply.
2 To
be included in
Notices of Revolving Credit Borrowing pursuant to Section
3.03.
3 To
be included in
Notices of Revolving Credit Borrowing from CFSC.
EXHIBIT
B-2
NOTICE
OF LOCAL
CURRENCY BORROWING
Citibank
International plc, as Local Currency Agent
0
Xxxxxxx Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx
X00 0XX,
Xxxxxxx
Attention:
Loans
Agency
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
Xxx
Xxxxx Xxx,
Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
000
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Xxxxxxxx
X’Xxxxxxx
Ladies
and
Gentlemen:
The
undersigned,
Caterpillar International Finance p.l.c., refers to (1) the Credit Agreement
(Five-Year Facility) dated as of September 21, 2006, as the same may be amended,
restated, supplemented or otherwise modified from time to time (the “Credit
Agreement,” the terms defined therein being used herein as therein defined),
among the undersigned, Caterpillar Inc., Caterpillar Financial Services
Corporation (“CFSC”), Caterpillar Finance Corporation, certain Banks parties
thereto, Citibank International plc, as Local Currency Agent, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank, N.A.,
as Agent for said Banks, and (2) the Local Currency Addendum dated as of
September 21, 2006, among the undersigned, CFSC, the Local Currency Banks party
thereto, and Citibank International plc as the Local Currency Agent (the
“Addendum”). The undersigned hereby gives you notice, irrevocably, pursuant to
Section
2.03A
of the Credit
Agreement and the Addendum that the undersigned hereby requests a Local Currency
Borrowing under the Credit Agreement and the Addendum, and in that connection
sets forth below the information relating to such Local Currency Borrowing
(the
“Proposed Borrowing”) as required by Section
2.03A
of the Credit
Agreement:
(i) The
Business Day of
the Proposed Borrowing is __________, 200_.
(ii) The
currency of the
Proposed Borrowing is ________.
(iii) The
aggregate
amount of the Proposed Borrowing is __________.
(iv) The
Interest Period
for each Advance made as part of the Proposed Borrowing is _____
month[s].
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:
(A) 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
(B) 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
Very
truly
yours,
CATERPILLAR
INTERNATIONAL FINANCE p.l.c.
By
Title:
4 To
be included in
Notices of Borrowing pursuant to Section 3.02, unless Section 3.03 shall
apply.
5 To
be included in
Notices of Borrowing pursuant to Section 3.03.
EXHIBIT
B-3
NOTICE
OF JAPAN
LOCAL CURRENCY BORROWING
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
as
Japan Local Currency Agent
Corporate
Banking
Division No. 3, Corporate Banking Group
0-0,
Xxxxxxxxxx
0-xxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
Attention:
Xx.
Xxxxxx Xxxxxxxxx
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
Xxx
Xxxxx Xxx,
Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
000
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Xxxxxxxx
X’Xxxxxxx
Ladies
and
Gentlemen:
The
undersigned,
Caterpillar Finance Corporation, refers to (1) the Credit Agreement (Five-Year
Facility) dated as of September 21, 2006, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Credit Agreement,”
the terms defined therein being used herein as therein defined), among the
undersigned, Caterpillar Inc., Caterpillar International Finance p.l.c.,
Caterpillar Financial Services Corporation (“CFSC”), certain Banks parties
thereto, Citibank International plc, as Local Currency Agent, 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
[________], 2006, 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 “Addendum”). The undersigned hereby gives you notice,
irrevocably, pursuant to Section
2.03C
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 “Proposed Borrowing”) as required by Section
2.03C
of the Credit
Agreement:
(i) The
Business Day of
the Proposed Borrowing is __________, 200_. This [is][is not] a same-day
Borrowing request.
(ii) The
Type of
Revolving Credit Advances comprising the Proposed Borrowing is [Japan Base
Rate
Advances] [TIBO Rate Advances].
(iii) The
aggregate
amount of the Proposed Borrowing is __________.
(iv) The
Interest Period
for each Advance made as part of the Proposed Borrowing is [30 days] [_____
month[s]].
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:
(A) the
representations
and warranties contained in Section
4.01
[(excluding those
contained in the second sentence of subsection (e) and in subsection (f)
thereof)]6
[(excluding those
contained in the second sentence of subsection (e) thereof)]7
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
(B) 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].7
Very
truly
yours,
CATERPILLAR
FINANCE
CORPORATION
By
Title:
6 To
be included in
Notices of Borrowing pursuant to Section 3.02, unless Section 3.03 shall
apply.
7 To
be included in
Notices of Borrowing pursuant to Section 3.03.
EXHIBIT
B-4
NOTICE
OF
ALLOCATION
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
Xxx
Xxxxx Xxx,
Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
000
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Xxxxxxxx
X’Xxxxxxx
Ladies
and
Gentlemen:
The
undersigned,
Caterpillar Inc., as Borrower Agent on behalf of itself, Caterpillar Financial
Services Corporation, Caterpillar International Finance p.l.c. and Caterpillar
Finance Corporation (the “Borrowers”), refers to the Credit Agreement (Five-Year
Facility) dated as of September 21, 2006, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Credit Agreement,”
the terms defined therein being used herein as therein defined), among the
Borrowers, certain Banks parties thereto, Citibank International plc, as Local
Currency Agent, 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:
(i)
The Business
Day of the proposed re-allocation is ________, 200_.
(ii)
The Allocation
for each of Caterpillar Inc. and Caterpillar Financial Services Corporation
after giving effect to such re-allocation is as follows:
|
Borrower
|
Allocation
|
|
|
Caterpillar
Inc.
|
$________
|
|
|
Caterpillar
Financial Services Corporation
|
$________
|
Very
truly
yours,
CATERPILLAR
INC.
By:
Title:
EXHIBIT
B-5
NOTICE
OF BANK
ADDITION
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
Xxx
Xxxxx Xxx,
Xxxxx 000
Xxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
000
Xxxxx Xxxxxx
Xxxxx
Xxxxxxx,
Xxxxxxxx
00000
Attention:
Xxxxxxxx
X’Xxxxxxx
Ladies
and
Gentlemen:
The
undersigned,
Caterpillar Inc., Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c. and Caterpillar Finance Corporation (the
“Borrowers”), refer to the Credit Agreement (Five-Year Facility) dated as of
September 21, 2006, as the same may be amended, restated, supplemented or
otherwise modified from time to time (the “Credit Agreement,” the terms defined
therein being used herein as therein defined), among the Borrowers, certain
Banks parties thereto, Citibank International plc, as Local Currency Agent,
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
“Proposed Bank Addition”) as required by Section
2.05(c)
of the Credit
Agreement:
(i)
The Business
Day of the Proposed Bank Addition is ________, 200_.
(ii)
The name and
address of the proposed Added Bank are as follows:
______________________________
______________________________
______________________________
(iii)
The amount of
the Commitment of the proposed Added Bank, after giving effect to the Proposed
Bank Addition, would be $__________.
Very
truly
yours,
CATERPILLAR
INC.
By:
______________________________
Title:
CATERPILLAR
FINANCIAL SERVICES
CORPORATION
By:
______________________________
Title:
CATERPILLAR
INTERNATIONAL
FINANCE
p.l.c.
By:
______________________________
Title:
CATERPILLAR
FINANCE
CORPORATION
By:
______________________________
Title:
EXHIBIT
C
ASSIGNMENT
AND
ACCEPTANCE
Dated
_______________, 200_
Reference
is made
to the Credit Agreement (Five-Year Facility) dated as of September 21, 2006,
as
the same may be amended, restated, supplemented or otherwise modified from
time
to time (the “Credit Agreement”) among Caterpillar Inc., Caterpillar Financial
Services Corporation, Caterpillar International Finance p.l.c. and Caterpillar
Finance Corporation (the “Borrowers”), the Banks (as defined in the Credit
Agreement), Citibank International plc, as Local Currency Agent, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank, N.A.,
as Agent for the Banks (the “Agent”). Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein with the same
meaning.
_____________
(the
“Assignor”) and ___________________ (the “Assignee”) agree as
follows:
1. 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 Assignor’s 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 Assignor’s 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 Assignor’s Commitment and
Revolving Credit Commitment on Schedule
1
hereto, which Commitment is allocated between Caterpillar and CFSC, the
Assignor’s Allocated Commitment for each such Borrower as of the date hereof
being set forth on Schedule
1
hereto; [(ii) the Assignor’s [Local Currency Commitment][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 Assignor’s [Local Currency Commitment] [Japan Local Currency
Commitment] on Schedule
1
hereto; (ii)/(iii)]8
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.
2. 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 Local Currency Addendum,
the Japan Local Currency Addendum or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement,
the
Local Currency Addendum, 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 Local Currency Addendum,
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.
3. 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. 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 “Effective Date”).
4. 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
Local Currency Addendum][the Japan Local Currency Addendum]]9
held by it
immediately prior to the Effective Date, have the rights and obligations under
the Credit Agreement [and [the Local Currency Addendum][the Japan Local Currency
Addendum]]10
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
Local Currency Addendum][the Japan Local Currency Addendum]]11 .
5. Upon
such
acceptance by the Agent, from and after the Effective Date, the Agent [and
[the
Local Currency Agent][the Japan Local Currency Agent]]12
shall make all
payments under the Credit Agreement [, the Local Currency Addendum] [,the
Japan Local Currency Addendum]13
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. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement [, the [Local Currency Addendum][the
Japan Local Currency Addendum]]14
and the Notes, if
any, for periods prior to the Effective Date directly between
themselves.
6. This
Assignment and
Acceptance shall be governed by, and construed in accordance with, the laws
of
the State of New York.
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.
8 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency Bank.
9 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency
Bank.
10 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency Bank.
11 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency Bank.
12 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency Bank.
13 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency Bank.
14 Applicable
if
Assignor is a Local Currency Bank or a Japan Local Currency Bank.
|
Schedule
1
|
|||||
|
to
|
|||||
|
Assignment
and Acceptance
|
|||||
|
Dated
__________, 200_
|
|||||
|
Section 1.
|
|||||
|
Percentage
Interest:
|
__________%
|
||||
|
Assignor’s
Commitment:
|
$_________
|
||||
|
Assignor’s
Revolving Credit Commitment:
|
$_________
|
||||
|
[Assignor’s
Local Currency Commitment:]
|
$_________
|
||||
|
[Assignor’s
Japan Local Currency Commitment:]
|
$_________
|
||||
|
(a)
Allocated
Commitment to Caterpillar
|
$_________
|
||||
|
(b)
Allocated
Commitment to CFSC
|
$_________
|
||||
|
Aggregate
Outstanding Principal
|
|||||
|
Amount
of
Revolving Credit Advances owing to the Assignor by:
|
|||||
|
(a)
Caterpillar
|
$_________
|
||||
|
(b)
CFSC
|
$_________
|
||||
|
[Amount
of
Local Currency Advances owing to the Assignor]
|
$_________
|
||||
|
[Amount
of
Japan Local Currency Advances owing to the Assignor]
|
$_________
|
||||
|
Section 2.
|
|||||
|
Notes,
if
any, payable to the order of the Assignee
|
|||||
|
(a)
Borrower:
Caterpillar
|
|||||
|
Dated:
|
_____________,
200_
|
||||
|
(b)
Borrower:
CFSC
|
|||||
|
Dated:
|
_____________,
200_
|
||||
|
Notes,
if
any, payable to the order of the Assignor
|
|||||
|
(a)
Borrower:
Caterpillar
|
|||||
|
Dated:
|
_____________,
200_
|
||||
|
(b)
Borrower:
CFSC
|
|||||
|
Dated:
|
_____________,
200_
|
||||
|
Section 3.
|
|||||
|
Effective
Date
|
_____________,
200_
|
||||
|
Section 4.
|
|||||
|
Domestic
Lending Office
|
______________
|
||||
|
Eurocurrency
Lending Office
|
______________
|
||||
|
[NAME
OF
ASSIGNOR]
|
|||||
|
By:___________________________
|
|||||
|
Title:
|
|||||
|
[NAME
OF
ASSIGNEE]
|
|||||
|
By:___________________________
|
|||||
|
Title:
|
|||||
Accepted
this _____ day
of
_________________, 200_
[NAME
OF AGENT], as
Agent
By:___________________________
Title:
[NAME
OF LOCAL
CURRENCY AGENT], as Local Currency Agent
By:___________________________
Title:
[NAME
OF JAPAN
LOCAL CURRENCY AGENT], as Japan Local Currency Agent
By:___________________________
Title:
Agreed
to
this _____
day
of
_____________, 200_ 16
CATERPILLAR
INC.
By:___________________________
Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Title:
15 This
date should be
no earlier than the date of acceptance by the Agent.
16 To
be included when
consent of the Borrowers is required pursuant to Section
8.07(a)(ii).
EXHIBIT
C-1
ASSUMPTION
AND
ACCEPTANCE
Dated
_______________, 200_
Reference
is made
to the Credit Agreement (Five-Year Facility) dated as of September 21, 2006,
as
the same may be amended, restated, supplemented or otherwise modified from
time
to time (the “Credit Agreement”) among Caterpillar Inc., Caterpillar Financial
Services Corporation, Caterpillar International Finance p.l.c. and Caterpillar
Finance Corporation (the “Borrowers”), the Banks (as defined in the Credit
Agreement), Citibank International plc, as Local Currency Agent, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Bank and Citibank, N.A.,
as
Agent for the Banks (the “Agent”). Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein with the same
meaning.
The
Borrowers and
___________________ (the “Added Bank”) agree as follows:
1. 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 [Local Currency
Commitment] [Japan Local Currency Commitment] under the Credit Agreement in
the
amounts set forth on Schedule
1
hereto]17
[increase its
Commitment and Revolving Credit Commitment [and Local Currency Commitment]
[and
Japan Local Currency Commitment] under the Credit Agreement to the amounts
set
forth on Schedule
1
hereto]18
and the Added Bank
has agreed to so [become a Bank and accept and make a Commitment and Revolving
Credit Commitment [and Local Currency Commitment] [and Japan Local Currency
Commitment] under the Credit Agreement in such amounts]19
[increase its
Commitment and Revolving Credit Commitment [and Local Currency Commitment]
[and
Japan Local Currency Commitment] under the Credit Agreement to such
amounts].20
The Added Bank
agrees, upon the Effective Date of this Assumption and Acceptance, to purchase
a
participation in any Revolving Credit Advances [Local Currency 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.
2. 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 Local Currency Addendum, the Japan Local Currency
Addendum, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the Local Currency Addendum,
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 Local Currency Addendum, the Japan Local Currency
Addendum or any other instrument or document furnished pursuant
thereto.
3. 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. 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 “Effective Date”).
4. 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.
5. 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 Local Currency 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.
6. This
Assumption and
Acceptance shall be governed by, and construed in accordance with, the laws
of
the State of New York.
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.
17 To
be used if the
Added Bank is not already a Bank under the Credit Agreement.
18 To
be used if the
Added Bank is already a Bank under the Credit Agreement.
19 To
be used if the
Added Bank is not already a Bank under the Credit Agreement.
20 To
be used if the
Added Bank is already a Bank under the Credit Agreement.
|
Schedule
1
|
|||
|
to
|
|||
|
Assumption
and Acceptance
and
Acceptance
|
|||
|
Dated
__________, 200_
|
|||
|
Section 1.
|
|||
|
|
|||
|
Added
Bank’s
Commitment after giving effect to this Assumption and
Acceptance:
|
$_________
|
||
|
Added
Bank’s
Revolving Credit Commitment after giving effect to this Assumption
and
Acceptance:
|
$_________
|
||
|
[Added
Bank’s
Local Currency Commitment after giving effect to this Assumption
and
Acceptance:
|
$_________
|
||
|
[Added
Bank’s
Japan Local Currency Commitment after giving effect to this Assumption
and
Acceptance:
|
$_________
|
||
|
Section 2.
|
|||
|
|
|||
|
Effective
Date 1 This
date should be no earlier than the date of acceptance by the
Agent.:
|
_____________,
200_
|
||
|
Section 3.
|
|||
|
|
|||
|
Domestic
Lending Office
|
______________
|
||
|
Eurocurrency
Lending Office
|
______________
|
||
|
[Local
Currency Lending Office
|
______________]
|
||
|
[Japan
Local
Currency Lending Office
|
______________]
|
||
|
CATERPILLAR
INC.
|
|||
|
By:___________________________
|
|||
|
Title:
|
|||
|
CATERPILLAR
FINANCIAL SERVICES CORPORATION
|
|||
|
By:___________________________
|
|||
|
Title:
|
|||
|
CATERPILLAR
INTERNATIONAL FINANCE p.l.c.
|
|||
|
By:___________________________
|
|||
|
Title:
|
|||
|
CATERPILLAR
FINANCE CORPORATION
|
|||
|
By:___________________________
|
|||
|
Title:
|
|||
[NAME OF ADDED BANK]
By:___________________________
Title :
Accepted
this _____
day
of
_________________, 200_
[NAME
OF
AGENT]
By:___________________________
Title:
21 This
date should be
no earlier than the date of acceptance by the Agent.
EXHIBIT
D
FORM
OF OPINION OF
COUNSEL
FOR
EACH OF
CATERPILLAR AND CFSC
[Closing
Date]
To
each of the Banks parties
to
the Credit Agreement
(Five-Year
Facility) dated as of
September
21, 2006,
among
Caterpillar
Inc.,
Caterpillar
Financial
Services
Corporation,
Caterpillar
International Finance p.l.c.,
Caterpillar
Finance
Corporation,
said
Banks,
Citibank, N.A., as Agent,
Citibank
International plc, as Local
Currency
Agent, and
The Bank of
Tokyo-Mitsubishi
UFJ, Ltd., as Japan
Local
Currency
Agent
Re:
[Name of
Applicable Borrower]
Ladies
and
Gentlemen:
I
am [General
Counsel/General Attorney] of [Name of Applicable Borrower], a [Type of
Organization] (the “Borrower”), and give this opinion pursuant to Section
3.01(d)
of the Credit
Agreement (Five-Year Facility) dated as of September 21, 2006 (the “Credit
Agreement”), among the Borrower, [names of other Borrowers under the Credit
Agreement], the Banks parties thereto, Citibank International plc, as Local
Currency Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency
Agent, and Citibank, N.A., as Agent for said Banks. Terms defined in the Credit
Agreement are used herein as therein defined.
I
have examined the
Credit Agreement; [the Local Currency Addendum;] [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 “Charter”); and the [bylaws] of the Borrower and all amendments
thereto (the “Bylaws”). 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.
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.
Based
upon the
foregoing, and subject to the comments and qualifications set forth below,
it is
my opinion that:
1. 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 Local Currency Addendum] [, the Japan Local Currency
Addendum]22
and its
Notes.
2. The
execution,
delivery and performance by the Borrower of the Credit Agreement [, the Local
Currency Addendum] [,the Japan Local Currency Addendum]23
and the Notes to
be executed by it are within the Borrower’s 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) 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.
3. 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 Local Currency
Addendum] [, the Japan Local Currency Addendum]24
and the Notes to
be executed by it.
4. The
Credit
Agreement [, the Local Currency Addendum] [, the Japan Local Currency
Addendum]25
and its Notes have
been duly executed and delivered by a duly authorized officer of the Borrower.
Assuming that the Agent, the Local Currency 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 (x) the Local Currency Agent and each Local Currency Bank party
to
the Local Currency Addendum as of the date hereof have duly executed and
delivered the Local Currency Addendum and that each such Local Currency Bank
has
notified the Agent that such Local Currency Bank has executed the Local Currency
Addendum, and (y) 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 Local Currency Addendum 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 creditors’ rights generally and by the effect of general principles
of equity.
5. 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 Local Currency Addendum,][,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 Local Currency
Addendum,][,the Japan Local Currency Addendum] and the Notes to be executed
by
it.
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 Bank’s claims under the Credit
Agreement or the Notes or (ii) Section
2.12(c),
7.05
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 Local Currency Agent][or the Japan Local
Currency Agent].
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. 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 [_______].
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. 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 Local Currency Addendum, 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.
Very
truly
yours,
22 For
CFSC
opinion.
23 For
CFSC
opinion.
24 For
CFSC
opinion.
25 For
CFSC
opinion.
EXHIBIT
E
OPINION
OF SPECIAL
NEW YORK COUNSEL
TO
THE
AGENT
[Closing
Date]
To
the Banks listed on Exhibit A
hereto
and to
Citibank, N.A.,
as
Agent, Citibank International plc, as
Local
Currency
Agent, and The
Bank
of
Tokyo-Mitsubishi UFJ, Ltd., as
Japan
Local
Currency Agent
|
Re:
|
Caterpillar
Inc., Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c., and Caterpillar Finance Corporation
(collectively, the “Borrowers” and individually a
“Borrower”)
|
Ladies
and
Gentlemen:
We
have acted as
special New York counsel to Citibank, N.A. (“Citibank”), individually and as
Agent, in connection with the preparation, execution and delivery of the Credit
Agreement (Five-Year Facility) dated as of September 21, 2006 (“Credit
Agreement”), among the Borrowers, each of you, Citibank International plc, as
Local Currency Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local
Currency Agent, and Citibank, as Agent for the Banks. Terms defined in the
Credit Agreement are used herein as therein defined.
In
that connection,
we have examined the following documents:
(1) Counterparts
of the
Credit Agreement, the Local Currency Addendum and the Japan Local Currency
Addendum, executed by each of the parties thereto.
(2) The
opinion of
Xxxxx X. Xxxxxx, internal counsel for Caterpillar Inc. (“Caterpillar), dated as
of the date hereof.
(3) The
opinion of
Xxxxxxx X. Xxxxxxx, internal counsel for Caterpillar Financial Services
Corporation (“CFSC”), dated as of the date hereof.
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. We have also assumed
that each of the Banks, the Local Currency Agent, the Japan Local Currency
Agent
and the Agent have duly executed and delivered the Credit Agreement, the Local
Currency Addendum and the Japan Local Currency Addendum, as applicable, with
all
necessary power and authority (corporate and otherwise).
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.
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; the Local Currency Addendum is the
legal, valid and binding obligation of CFSC, enforceable against CFSC in
accordance with its 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.
Our
opinion above
is subject to the following qualifications:
(a) 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. 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.
Such
principles applied by a court include a requirement that a creditor act with
reasonableness and in good faith.
(b) Our
opinion above
is also subject (i) to the effect of any applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar law affecting
creditors’ 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.
(c)
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.
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 Local Currency Addendum, the Japan Local Currency Addendum or the Notes
may
be sought which limits the rates of interest legally chargeable or collectible,
or (ii) whether any of the Banks is “doing business” in the State of New
York.
(d) We
express no
opinion as to the effect of the compliance or noncompliance of the Agent, the
Local Currency Agent, the Japan Local Currency Agent or any of the Banks with
any state or federal laws or regulations applicable to any such party because
of
such party’s legal or regulatory status, the nature of such party’s business or
the authority of any party to conduct business in any jurisdiction.
(e)
We express no
opinion as to (i) Sections 2.13 or 8.05 of the Credit Agreement, or any
comparable provisions under the Local Currency Addendum or 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 Bank’s claims under the
Credit Agreement; the Local Currency Addendum, 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 Local Currency Addendum or 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 Local Currency Addendum or 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 8.10 or 8.12, the last
sentence of Section 8.08(b) of the Credit Agreement or any comparable provisions
of the Local Currency Addendum or the Japan Local Currency
Addendum.
(f)
We express no
opinion as to the legality, validity or enforceability of any of the Credit
Agreement, the Local Currency Addendum or the Japan Local Currency Addendum
with
regard to or as against Caterpillar International Finance p.l.c. (“CIF”) or
Caterpillar Finance Corporation (“CFC”), nor shall any of the opinions contained
herein be construed to apply to CIF or CFC.
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. The opinion
expressed herein is 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 for any other purpose and may not be relied on 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 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
Local Currency Addendum, 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.
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.
Very
truly
yours,
EXHIBIT
A
to
the
Opinion
of
Sidley Austin
LLP
Banks
Citibank,
N.A.
JPMorgan
Chase
Bank, N.A.
Bank
of America,
N.A.
ABN
AMRO Bank
N.V.
Barclays
Bank
PLC
Société
Générale
Royal
Bank of
Canada
WestLB
AG
Toronto
Dominion
(Texas) LLC
Standard
Chartered
Bank
Australia
and New
Zealand Banking Group Limited
The
Bank of
Tokyo-Mitsubishi, Ltd.
Lloyds
TSB Bank
plc
Xxxxxxx
Xxxxx Bank
USA
Xxxxxxx
Street
Commitment Corporation
Commerzbank
AG, New
York and Grand Cayman Branches
ING
Capital
LLC
U.S.
Bank, National
Association
Banca
Nazionale del
Lavoro S.p.A., New York Branch
KBC
Bank
N.V.
Mellon
Bank,
N.A.
The
Northern Trust
Company
EXHIBIT
F-1
COMPLIANCE
CERTIFICATE
CATERPILLAR
INC.
To: The
Banks which are
parties to the
Credit
Agreement
described below
This
Compliance
Certificate is furnished pursuant to that certain Credit Agreement (Five-Year
Facility) dated as of September 21, 2006, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Agreement”) among
Caterpillar Inc., Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c. and Caterpillar Finance Corporation (collectively,
the “Borrowers”), the Banks party thereto, Citibank International plc, as Local
Currency Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency
Agent and Citibank, N.A., as agent for the Banks. Capitalized terms used and
not
otherwise defined herein shall have the meanings attributed to such terms in
the
Agreement.
THE
UNDERSIGNED
HEREBY CERTIFIES THAT:
1. I
am the duly
elected ______________ of Caterpillar Inc. (the “Borrower”).
2. 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.
3. 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.
4. As
required
pursuant to Section
5.03
of the Agreement,
the Borrower’s 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 Borrower’s Consolidated Net Worth as of the end of the last fiscal
year, as shown below.
|
a.
|
Consolidated
Net Worth
|
$__________
|
|
|
b.
|
75%
of
Consolidated Net Worth as of the end of the last fiscal
year
|
$__________
|
The
foregoing
certifications and the financial statements delivered with this Certificate
in
support hereof, are made and delivered this _____ day of __________,
200_.
CATERPILLAR
INC.
By:___________________________
Name:
Title:
EXHIBIT
F-2
COMPLIANCE
CERTIFICATE
CATERPILLAR
FINANCIAL SERVICES CORPORATION
To: The
Banks which are
parties to the
Credit
Agreement
described below
This
Compliance
Certificate is furnished pursuant to that certain Credit Agreement (Five-Year
Facility) dated as of September 21, 2006, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Agreement”) among
Caterpillar Inc., Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c. and Caterpillar Finance Corporation (collectively,
the “Borrowers”), the Banks party thereto, Citibank International plc, as Local
Currency Agent, and The Bank of Tokyo-Mitsubishi UFJ Ltd., as Japan Local
Currency Agent, Citibank, N.A., as agent for the Banks. Capitalized terms used
and not otherwise defined herein shall have the meanings attributed to such
terms in the Agreement.
THE
UNDERSIGNED
HEREBY CERTIFIES THAT:
1. I
am the duly
elected ______________ of Caterpillar Financial Services Corporation (the
“Borrower”).
2. 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.
3. 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.
4. As
required
pursuant to Section
5.04(a)
of the Agreement,
the Borrower’s Leverage Ratio as of the end of the accounting period covered by
the attached financial statements, is not greater than 8.5 to 1, as shown
below.
|
(a)
|
CFSC
Consolidated Debt
|
$__________
|
||
|
(b)
|
CFSC’s
Consolidated Net Worth
|
$__________
|
||
|
(i)
|
Stockholders’
equity
|
$__________
|
||
|
(ii)
|
Accumulated
Other Comprehensive Income
|
$__________
|
||
|
(c)
|
Leverage
Ratio (a÷b)
|
$__________
|
||
5. As
required
pursuant to Section
5.04(b)
of the Agreement,
the ratio of (1) the Borrower’s 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.
|
(a)
|
Net
earnings
before income taxes and Interest Expense
|
$__________
|
|
|
(b)
|
Interest
Expense
|
$__________
|
|
|
(c)
|
Ratio
of net
earnings before income taxes and Interest Expense to Interest Expenses
(a÷b)
|
$__________
|
The
foregoing
certifications and the financial statements delivered with this Certificate
in
support hereof, are made and delivered this _____ day of __________,
200_.
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Name:
Title:
EXHIBIT
G-1
CATERPILLAR
INTERNATIONAL FINANCE p.l.c.
LOCAL
CURRENCY
ADDENDUM
LOCAL
CURRENCY
ADDENDUM dated as of September 21, 2006, to the Credit Agreement (as defined
below), among Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c., the Local Currency Banks (as defined below),
Citibank, N.A., as Agent, and Citibank International plc, as Local Currency
Agent.
ARTICLE
I
Definitions
SECTION
1.01.
Defined
Terms.
As used in this
Addendum, the following terms shall have the meanings specified
below:
“Associated
Costs
Rate”
means
for any
Local Currency Advance for any Interest Period, a percentage rate per annum,
as
determined in accordance with Annex I attached hereto on the first day of such
Interest Period, determined by the Local Currency Agent as reflecting the cost,
loss or difference in return which would be suffered or incurred by the Local
Currency Banks as a result of: (a) funding (based on the Eurocurrency Rate
and
on a match funded basis) any special deposit or cash ratio deposit required
to
be placed with the Bank of England (or any other authority which replaces all
or
any of its functions) and/or (b) any charge imposed by the Financial Services
Authority (or any other authority which replaces all or any of its functions),
in each case to the extent attributable to such Local Currency
Advance.
“Credit
Agreement”
means
the Credit
Agreement (Five-Year Facility) dated as of September 21, 2006, among Caterpillar
Inc., Caterpillar Financial Services Corporation, Caterpillar International
Finance p.l.c., Caterpillar Finance Corporation, the financial institutions
from
time to time party thereto as Banks, Citibank, N.A., as Agent, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank
International plc, as Local Currency Agent, as the same may be amended, waived,
modified or restated from time to time.
“Local
Currency
Advance”
means
any
Advance, denominated in Pounds Sterling or euro, made to CIF pursuant to
Sections 2.03
and 2.03A
of the Credit
Agreement and this Addendum. A Local Currency Advance shall bear interest at
the
rate specified in Schedule II.
“Local
Currency
Bank”
means
each Bank
listed on the signature pages of this Addendum or which becomes a party hereto
pursuant to an Assignment and Acceptance or an Assumption and
Acceptance.
SECTION
1.02.
Terms
Generally.
Unless otherwise
defined herein, terms defined in the Credit Agreement shall have the same
meanings in this Addendum. Wherever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. All references herein to Sections and Schedules
shall be deemed references to Sections of and Schedules to this Addendum unless
the context shall otherwise require.
ARTICLE
II
The
Credits
SECTION
2.01.
Local
Currency
Advances.
(a) This Addendum (as the same may be amended, waived, modified or
restated from time to time) is the “Local Currency Addendum” as defined in the
Credit Agreement and is, together with the borrowings made hereunder, subject
in
all respects to the terms and provisions of the Credit Agreement except to
the
extent that the terms and provisions of the Credit Agreement are modified by
or
are inconsistent with this Addendum, in which case this Addendum shall
control.
(b) Any
modifications to the interest payment dates, Interest Periods, interest rates
and any other special provisions applicable to Local Currency Advances under
this Addendum are set forth on Schedule II.
If Schedule
II
states “None” or “Same as Credit Agreement” with respect to any item listed
thereon, then the corresponding provisions of the Credit Agreement, without
modification, shall govern this Addendum and the Local Currency Advances made
pursuant to this Addendum.
(c) Any
special borrowing procedures or funding arrangements for Local Currency Advances
under this Addendum, any provisions for the issuance of promissory notes to
evidence the Local Currency Advances made hereunder and any additional
information requirements applicable to Local Currency Advances under this
Addendum are set forth on Schedule III.
If no such
special procedures, funding arrangements, provisions or additional requirements
are set forth on Schedule
III,
then the
corresponding procedures, funding arrangements, provisions and information
requirements set forth in the Credit Agreement shall govern this
Addendum.
SECTION
2.02.
Maximum
Borrowing Amounts.
(a) The
Total Local Currency Commitment, and the Local Currency Commitment and the
Same
Day Local Currency Commitment for each Local Currency Bank party to this
Addendum as of the date hereof, are set forth on Schedule
I.
(b) Upon
at least five (5) Business Days prior irrevocable written notice to the Agent,
the Local Currency Agent and the Local Currency Banks, CIF may from time to
time
permanently reduce the Total Local Currency Commitment under this Addendum
in
whole, or in part ratably among the Local Currency Banks, in an aggregate
minimum Dollar Amount of $1,000,000, and integral multiples of $1,000,000 in
excess thereof; provided,
however,
that the amount
of the Total Local Currency Commitment may not be reduced below the aggregate
principal amount of the outstanding Local Currency Advances with respect
thereto. Any such reduction shall be allocated pro rata among all the Local
Currency Banks party to this Addendum by reference to their Local Currency
Commitments.
ARTICLE
III
Representations
and
Warranties
Each
of CFSC and
CIF makes and confirms each representation and warranty applicable to it or
any
of its Subsidiaries contained in Article IV
of the Credit
Agreement. Each of CFSC and CIF represents and warrants to each of the Local
Currency Banks party to this Addendum that no Event of Default, or event which
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both, has occurred and is continuing, and no Event
of
Default, or event which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, shall arise as a result
of the making of Local Currency Advances hereunder or any other transaction
contemplated hereby.
ARTICLE
IV
Miscellaneous
Provisions
SECTION
4.01.
Amendment;
Termination.
(a) This Addendum (including the Schedules hereto) may not be amended
without the prior written consent of the Majority Local Currency Banks hereunder
and subject to the provisions of Section 8.01
of the Credit
Agreement.
(b) This
Addendum may not be terminated without the prior written consent of each Local
Currency Bank party hereto, CFSC and CIF unless there are no Local Currency
Advances outstanding hereunder, in which case no such consent of any Local
Currency Bank shall be required; provided,
however,
that this
Addendum shall terminate on the date that the Credit Agreement terminates in
accordance with its terms.
SECTION
4.02.
Assignments. Section 8.07
of the Credit
Agreement shall apply to assignments by Local Currency Banks of obligations,
Local Currency Commitments and Advances hereunder; provided,
however,
that a Local
Currency Bank may not assign any obligations, Local Currency Commitments or
rights hereunder to any Person which is not (or does not simultaneously become)
a Bank under the Credit Agreement.
SECTION
4.03.
Notices,
Etc.
Except as
otherwise provided herein, all notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex or telecopy
communication) and mailed, telegraphed, telexed, telecopied or delivered, as
follows:
(a) if
to CIF, at
Caterpillar International Finance p.l.c., 0 Xxxxx Xxxx Xxxx, Xxxxxx 0 Xxxxxxx,
Attention: Funding Manager (Facsimile No. 353-1-670-0546) with a copy to CFSC
at
its address and telecopy number referenced in Section 8.02
of the Credit
Agreement;
(b) if
to CFSC, at its
address and telecopy number referenced in Section
8.02
of the Credit
Agreement;
(c) if
to the Local
Currency Agent, at 4 Harbour Exchange Square, 2nd
Floor, London E14
9GE, England, Attention: Loans Agency (Telecopy No.:
00-000-000-00-00) with
a copy to the
Agent at its address and telecopy number referenced in Section 8.02
of the Credit
Agreement;
(d) if
to a Local
Currency Bank, at its address (and telecopy number) set forth in Schedule I
or in the
Assignment and Acceptance or Assumption and Acceptance pursuant to which such
Local Currency Bank became a party hereto;
(e) if
to the Agent, at
its address at Bank Loan Syndications, Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx 00000, Attention: Bank Loan Syndications, Telecopier No. 000-000-0000,
with a copy to Citicorp North America, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxxx X’Xxxxxxx;
or
as to each
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall be deemed
to have been given three (3) Business Days after deposit in the mail (registered
or certified, with postage prepaid and properly addressed), when delivered
to
the telegraph company, upon receipt of a telex or telecopy or when delivered
in
person or by courier service, except that notices and communications to the
Local Currency Agent pursuant to Article
II
or V
hereof or
Article
II
of the Credit Agreement shall not be effective until received by the Local
Currency Agent.
SECTION
4.04.
Ratification
of
Guaranty.
By its execution
of this Addendum, CFSC ratifies and confirms its guaranty contained in
Article
IX
of the Credit Agreement with respect to the Local Currency Advances made
pursuant to this Addendum which Guaranty remains in full force and
effect
SECTION
4.05.
Sharing
of
Payments, Etc.
If any Local
Currency Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of the Local
Currency Advances made by it (other than pursuant to Section
2.02(c),
2.05(d),
2.10,
2.12
or 8.04
of the Credit
Agreement) in excess of its ratable share of payments on account of the Local
Currency Advances obtained by all the Local Currency Banks, such Local Currency
Bank shall forthwith purchase from the other Local Currency Banks such
participations in the Local Currency Advances made by them as shall be necessary
to cause such purchasing Local Currency Bank to share the excess payment ratably
with each of them, provided,
however,
that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Local Currency Bank, such purchase from each other Local Currency Bank shall
be
rescinded and each such other Local Currency Bank shall repay to the purchasing
Local Currency Bank the purchase price to the extent of such recovery together
with an amount equal to such other Local Currency Bank’s ratable share
(according to the proportion of (i) the amount of such other Local Currency
Bank’s required repayment to (ii) the total amount so recovered from the
purchasing Local Currency Bank) of any interest or other amount paid or payable
by the purchasing Local Currency Bank in respect of the total amount so
recovered. CIF agrees that any Local Currency Bank so purchasing a participation
from another Local Currency Bank pursuant to this Section
4.05
may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Local Currency Bank were the direct creditor of CIF in the amount of such
participation.
SECTION
4.06.
Applicable
Law.
THIS ADDENDUM
SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
SECTION
4.07
Execution
in
Counterparts.
This Addendum may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which taken together shall constitute one and the same
agreement.
ARTICLE
V
The
Local Currency
Agent
SECTION
5.01
Appointment;
Nature of Relationship.
Citibank
International plc is appointed by the Local Currency Banks as the Local Currency
Agent hereunder and under the Credit Agreement, and each of the Local Currency
Banks irrevocably authorizes the Local Currency Agent to act as the contractual
representative of such Local Currency Bank with the rights and duties expressly
set forth herein and in the Credit Agreement applicable to the Local Currency
Agent. The Local Currency Agent agrees to act as such contractual representative
upon the express conditions contained in this Article
V.
Notwithstanding the use of the defined term “Local Currency Agent,” it is
expressly understood and agreed that the Local Currency Agent shall not have
any
fiduciary responsibilities to any Local Currency Bank or other Bank by reason
of
this Addendum and that the Local Currency Agent is merely acting as the
representative of the Local Currency Banks with only those duties as are
expressly set forth in this Addendum and the Credit Agreement. In its capacity
as the Local Currency Banks’ contractual representative, the Local Currency
Agent (i) does not assume any fiduciary duties to any of the Banks, (ii) is
a
“representative” of the Local Currency Banks within the meaning of Section 9-102
of the Uniform Commercial Code and (iii) is acting as an independent contractor,
the rights and duties of which are limited to those expressly set forth in
this
Addendum and the Credit Agreement. Each of the Local Currency Banks agrees
to
assert no claim against the Local Currency Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims
each
Bank waives.
SECTION
5.02
Powers.
The Local
Currency Agent shall have and may exercise such powers under this Addendum
and
the Credit Agreement as are specifically delegated to the Local Currency Agent
by the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Local Currency Agent shall have neither any implied
duties or fiduciary duties to the Local Currency Banks or the Banks, nor any
obligation to the Local Currency Banks or the Banks to take any action hereunder
or under the Credit Agreement except any action specifically provided by this
Addendum or the Credit Agreement required to be taken by the Local Currency
Agent.
SECTION
5.03
General
Immunity.
Neither the Local
Currency Agent nor any of its respective directors, officers, agents or
employees shall be liable to any of the Borrowers or any Bank for any action
taken or omitted to be taken by it or them hereunder or under the Credit
Agreement or in connection herewith or therewith except to the extent such
action or inaction is found in a final non-appealable judgment by a court of
competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.
SECTION
5.04
No
Responsibility for Advances, Creditworthiness, Collateral, Recitals,
Etc.
[Intentionally
Omitted. See Section
7.02
of the Credit
Agreement for these provisions.]
SECTION
5.05
Action
on
Instructions of Local Currency Banks.
The Local
Currency Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under the Credit Agreement in accordance with written
instructions signed by Majority Local Currency Banks (except with respect to
actions that require the consent of all of the Banks as provided in the Credit
Agreement, including, without limitation, Section
8.01
thereof), and such
instructions and any action taken or failure to act pursuant thereto shall
be
binding on all of the Local Currency Banks. The Local Currency Agent shall
be
fully justified in failing or refusing to take any action hereunder and under
the Credit Agreement unless it shall first be indemnified to its satisfaction
by
the Local Currency Banks pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
SECTION
5.06
Employment
of
Agents and Counsel.
The Local
Currency Agent may execute any of its duties hereunder and under the Credit
Agreement by or through employees, agents, and attorneys-in-fact, and shall
not
be answerable to the Banks or the Local Currency Banks, except as to money
or
securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Local Currency Agent shall be entitled to advice of counsel
concerning the contractual arrangement among the Local Currency Agent and the
Local Currency Banks, as the case may be, and all matters pertaining to its
duties hereunder and under the Credit Agreement.
SECTION
5.07
Reliance
on
Documents; Counsel.
[Intentionally
Omitted. See Section
7.02
of the Credit
Agreement for these provisions.]
SECTION
5.08
Other
Transactions.
The Local
Currency Agent may accept deposits from, lend money to, and generally engage
in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Addendum or the Credit Agreement, with CFSC, CIF or any
of
their respective Subsidiaries in which the Local Currency Agent is not
prohibited hereby from engaging with any other Person.
SECTION
5.09
Bank
Credit
Decision.
[Intentionally
Omitted. See Section
7.04
of the Credit
Agreement for these provisions.]
SECTION
5.10
Successor
Local
Currency Agent.
The Local
Currency Agent (i) may resign at any time by giving written notice thereof
to
the Agent, the Local Currency Banks and the Borrowers, and may appoint one
of
its affiliates as successor Local Currency Agent and (ii) may be removed at
any
time with or without cause by the Majority Local Currency Banks. Upon any such
resignation or removal, the Majority Local Currency Banks, with the consent
of
the Agent, shall have the right to appoint (unless, in the case of the
resignation of the Local Currency Agent, the resigning Local Currency Agent
has
appointed one of its affiliates as successor Local Currency Agent), on behalf
of
the Borrowers and the Local Currency Banks, a successor Local Currency Agent.
If
no successor Local Currency Agent shall have been so appointed and shall have
accepted such appointment within thirty days after the retiring Local Currency
Agent’s giving notice of resignation or the Majority Local Currency Banks’
removal of the retiring Local Currency Agent, then the retiring Local Currency
Agent may appoint, on behalf of the Borrowers and the Local Currency Banks,
a
successor Local Currency Agent, which need not be one of its affiliates.
Notwithstanding anything herein to the contrary, so long as no Event of Default,
or event which would constitute an Event of Default but for the requirement
that
notice be given, time elapse or both, has occurred and is continuing, each
such
successor Local Currency Agent shall be subject to written approval by CFSC
and
CIF, which approval shall not be unreasonably withheld. Such successor Local
Currency Agent shall be a commercial bank having capital and retained earnings
of at least $500,000,000. Upon the acceptance of any appointment as the Local
Currency Agent hereunder by a successor Local Currency Agent, such successor
Local Currency Agent shall thereupon succeed to and become vested with all
the
rights, powers, privileges and duties of the retiring Local Currency Agent,
and
the retiring Local Currency Agent shall be discharged from its duties and
obligations hereunder and under the Credit Agreement. After any retiring Local
Currency Agent’s resignation hereunder as Local Currency Agent, the provisions
of this Article
V
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Local Currency Agent
hereunder and under the Credit Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as a deed by their duly authorized officers, all as of the date and
year first above written.
CATERPILLAR
INTERNATIONAL
FINANCE
p.l.c.
By:___________________________
Name:
Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Name:
Title:
CITIBANK,
N.A., as
the Agent
By:___________________________
Name:
Title:
CITIBANK
INTERNATIONAL plc, as the Local Currency Agent
By:___________________________
Name:
Title:
BARCLAYS
BANK
PLC
By:___________________________
Name:
Title:
COMMERZBANK
AG, NEW
YORK AND GRAND CAYMAN BRANCHES
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
SOCIÉTÉ
GÉNÉRALE
By:___________________________
Name:
Title:
ABN
AMRO BANK
N.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
CITIBANK,
N.A.
By:___________________________
Name:
Title:
LLOYDS
TSB BANK
plc
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
ROYAL
BANK OF
CANADA, acting through its London Branch
By:___________________________
Name:
Title:
JPMORGAN
CHASE
BANK, N.A.
By:___________________________
Name:
Title:
KBC
BANK
N.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
WESTLB
AG, NEW YORK
BRANCH
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
SCHEDULE
I
to
Local Currency
Addendum
Local
Currency
Banks
Local
Currency
Commitments
Total
Local
Currency Commitment
Applicable
Lending
Office
|
Local
Currency Bank Name
|
Local
Currency Commitment
|
Same
Day Local Currency Commitment
|
|
Citibank,
N.A.
|
US
$250,000,000
|
US
$56,250,000
|
|
Societe
Generale
|
US
$125,000,000
|
US
$31,250,000
|
|
Commerzbank
AG, New York and Grand Cayman Branches
|
US
$100,000,000
|
US
$31,250,000
|
|
Barclays
Bank
PLC
|
US
$125,000,000
|
US
$31,250,000
|
|
ABN
AMRO Bank
N.V.
|
US
$
75,000,000
|
US
$18,750,000
|
|
JPMorgan
Chase Bank, N.A.
|
US
$
75,000,000
|
US
$18,750,000
|
|
Royal
Bank of
Canada, acting through its London Branch
|
US
$
75,000,000
|
US
$18,750,000
|
|
Lloyds
TSB
Bank plc
|
US
$
75,000,000
|
XX
x00,000,000
|
|
XxxxXX
XX,
Xxx Xxxx Xxxxxx
|
XX
$
50,000,000
|
US
$12,500,000
|
|
KBC
Bank
N.V.
|
US
$
50,000,000
|
US
$12,500,000
|
|
Total
Local Currency Commitment:
|
US
$1,000,000,000
|
Total
Same Day Local Currency Sub-Facility:
|
US
$250,000,000
|
|
Local
Currency Bank Name
|
Applicable
Local Currency Lending Office
|
|
Citibank,
N.A.
|
Citibank
International plc
0
Xxxxxxx
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx
X00
0XX, Xxxxxxx
Attention:
Loans Agency
|
|
Societe
Generale
|
000
Xxxx
Xxxxxxx
Xxxxxxx,
XX
00000
Attention:
Xxxxxxxx Xxxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
Commerzbank
AG, New York and Grand Cayman Branches
|
Commerzbank
AG, Grand Cayman Branch
c/o
New York
Branch
Two
World
Financial Center
Xxx
Xxxx, XX
00000
Attention:
Xxxxx Xxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
Barclays
Bank
PLC
|
Global
Services Xxxx
00
Xxx Xxxxx
Xxxxxxxxx
Xxxxxx
Xxxxx
Xxxxxx
X00
0XX
Attention:
Xxxx Xxxxxx/Xxxxxx Xxxxx
Phone:
0000-000-0000 / 0000-000-0000
Fax:
0000-000-0000
|
|
ABN
AMRO Bank
N.V.
|
ABN
AMRO Bank
N.V.
000
X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX
00000
Attention:
Loan Administration
Phone:
000-000-0000
Fax:
000-000-0000
|
|
JPMorgan
Chase Bank
|
JPMorgan
Chase Bank
0000
Xxxxxx
Xx., Xxxxx 00
Xxxxxxx,
XX
00000
Attention:
Xxxxxxx X Xxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
Royal
Bank of
Canada, acting through its London Branch
|
Royal
Bank of
Canada
00
Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx XX0X 0XX
Attention:
Loans Administration
Phone:
000-00-00-0000-0000
Fax:
000-00-00-0000-0000
Copy
to:
Karim Amr
Phone:
000-00-00-0000-0000
Fax:
000-00-00-0000-0000
|
|
Lloyds
TSB
Bank plc
|
Lloyds
TSB
Bank plc
Xxxx
Xxxxx
Xxxx
Xxxxxx
Xxxxxxx
XX0
0XX
Attention:
Loans Administration (Xxxx Xxxxxx)
Phone:
0000
000 0000
Fax:
0000 000
0000
|
|
WestLB
AG,
New York Branch
|
WestLB
AG,
New York Branch
0000
Xxxxxxx
xx xxx Xxxxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxxx Xxxxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
|
|
KBC
Bank
N.V.
|
KBC
Bank
N.V.
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Xxxx Xxxxx
Phone:
(000)
000-0000
Fax:
(000)
000-0000
|
SCHEDULE
II
to
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
Local Currency
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at a rate per annum equal to the sum of (i) the Eurocurrency Rate for
such Local Currency Advance for such Interest Period plus
(ii) the
Applicable Eurocurrency Margin as in effect from time to time during such
Interest Period plus
(iii) the
Associated Costs Rate (as set forth on Annex
I
hereto) for such Local Currency Advance for such Interest Period; provided,
however,
after the
occurrence and during the continuance of an Event of Default or an event that
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both, the provisions of Section
2.07(c)
of the Credit
Agreement shall be applicable.
|
5.
|
Other:
|
Additional
Conditions Precedent: None
Termination
Date
for Addendum: The “Termination Date” under the Credit Agreement.
Prepayment
Notices:
CIF shall be permitted to prepay a Local Currency Advance subject to the
provisions of Section
8.04(b)
of the Credit
Agreement, on any Business Day, provided, in the case of any prepayment, notice
thereof is given to the Local Currency Agent not later than 10:00 a.m. (London
time) at least three (3) Business Days prior to the date of such
prepayment.
SCHEDULE
III
to
Local Currency
Addendum
OTHER
PROVISIONS
|
1.
|
Borrowing
Procedures:
|
(a) Notice
of Local
Currency Borrowing shall be given by CIF to the Local Currency Agent not later
than 11:00 a.m. (London time) on the third Business Day prior to the date of
the
proposed Local Currency Borrowing (or not later than 10:00 a.m. (London time)
on
the Business Day of the proposed Local Currency Borrowing, in the case of a
Local Currency Borrowing consisting of Same Day Local Currency Advances), and
the Local Currency Agent shall give each Local Currency Bank prompt notice
thereof in accordance with Section
4.03.
(b) Each
Notice of
Local Currency Borrowing shall be addressed to the Local Currency Agent at
its
address set forth in Section
4.03
and shall specify
the bank account to which the Local Currency Advances are to be
made.
|
2.
|
Funding
Arrangements:
|
Minimum
amounts/increments for Local Currency Borrowings, repayments and
prepayments:
Same
as Credit
Agreement.
|
3.
|
Promissory
Notes:
None
required.
|
ANNEX
I
to
Local Currency
Addendum
ASSOCIATED
COST
RATE FORMULAE
| 1. |
The
Associated Cost Rate is an addition to the interest rate to compensate
the
Local Currency Banks for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or,
in
either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central
Bank.
|
| 2. |
On
the first
day of each Interest Period (or as soon as possible thereafter) the
Local
Currency Agent shall calculate, as a percentage rate, a rate (the
"Associated Cost Rate") for the Alternate Currency Banks, in accordance
with the paragraphs set out below. The Associated Cost Rate so determined
by the Local Currency Agent shall be the weighted average of the
Additional Cost Rates of each of the Local Currency Banks, weighted
in
proportion that the Local Currency Commitment of each such Local
Currency
Bank bears to the Total Local Currency Commitment. The Associated
Cost
Rate will be expressed as a percentage rate per
annum.
|
| 3. |
The
Associated Cost Rate for a Local Currency Bank lending from a lending
installation in a member state of the European Communities that adopts
or
has adopted the euro as its lawful currency in accordance with legislation
of the European Union relating to European Monetary Union, will be
the
cost (stated as a percentage) of complying with the minimum reserve
requirements of the European Central
Bank.
|
| 4. |
The
Associated Cost Rate for a Local Currency Bank lending from a lending
installation in the United Kingdom will be calculated by the Local
Currency Agent as follows:
|
(a) in
relation to a
Local Currency Advance in Pounds Sterling:
AB
+ C (B -
D) + E x 0.01 percent
per
annum
100
- (A +
C)
(b) in
relation to a
Local Currency Advance in any Currency other than Pounds Sterling:
E
x
0.01 percent
per
annum
300
Where:
|
A
|
is
the
percentage of Eligible Liabilities (assuming these to be in excess
of any
stated minimum) which the Local Currency Bank is from time to time
required to maintain as an interest free cash ratio deposit with
the Bank
of England to comply with cash ratio
requirements.
|
|
B
|
is
the
percentage rate of interest (excluding the Applicable Margin and
the
Associated Cost Rate) payable for the relevant Interest Period on
the
Advance.
|
|
C
|
is
the
percentage (if any) of Eligible Liabilities which the Local Currency
Bank
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
D
|
is
the
percentage rate per annum payable by the Bank of England to the Local
Currency Bank on interest bearing Special
Deposits.
|
|
E
|
is
the rate
of charge payable by the Local Currency Bank to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees Regulations)
and
expressed in Pounds Sterling per £1,000,000 of the Fee Base of the Local
Currency Bank.
|
| 5. |
For
the
purposes of this Schedule:
|
(a) “Eligible
Liabilities”
and
“Special
Deposits”
have
the meanings
given to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) “Fees
Regulations”
means
the Banking
Supervision (Fees) Regulations 1999 or such other law or regulation as may
be in
force from time to time in respect of the payment of fees for banking
supervision; and
(c) “Fee
Base”
has
the meaning
given to it, and will be calculated in accordance with, the Fees
Regulations.
| 6. |
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e., 5 percent will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded to
four
decimal places.
|
| 7. |
In
particular, but without limitation, each Local Currency Bank shall
supply
to the Agent and the Local Currency Agent the following information
in
writing on or prior to the date on which it becomes a Local Currency
Bank:
|
(a) its
jurisdiction of
incorporation and the jurisdiction of its lending installation; and
(b) any
other
information that the Agent and the Local Currency Agent may reasonably require
for such purpose.
| 8. |
The
percentages or rates of charge of a Local Currency Bank for the purpose
of
A, C and E above shall be determined by such Local Currency Bank
based
upon the information supplied by it pursuant to paragraph 7 above
and on
the assumption that, unless the Local Currency Bank notifies the
Local
Currency Agent to the contrary, the Local Currency Bank’s obligations in
relation to cash ratio deposits, Special Deposits and the Fees Regulations
are the same as those of a typical bank from its jurisdiction of
incorporation with a lending installation in the same jurisdiction
as its
lending installation.
|
| 9. |
The
Local
Currency Agent shall have no liability to any person if such determination
results in an Associated Cost Rate which over or under compensates
a Local
Currency Bank and shall be entitled to assume that the information
provided by a Local Currency Bank pursuant to paragraphs 3 and 7
above is
true and correct in all respects.
|
| 10. |
Any
determination by the Local Currency Agent pursuant to this Schedule
in
relation to a formula, the Associated Cost Rate or any amount payable
to
the Local Currency Banks shall, in the absence of manifest error,
be
conclusive and binding on all of the parties to this
Addendum.
|
Any
Local Currency
Bank may from time to time, after consultation with CFSC, CIF, the Local
Currency Agent and the Agent, determine and notify to all parties any amendments
which are required to be made to this Annex in order to comply with any change
in law, regulation or any requirements from time to time imposed by the Bank
of
England, the Financial Services Authority or the European Central Bank (or,
in
any case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be conclusive
and binding on all the parties to this Addendum.
EXHIBIT
G-2
CATERPILLAR
FINANCE
CORPORATION
JAPAN
LOCAL
CURRENCY ADDENDUM
JAPAN
LOCAL
CURRENCY ADDENDUM, dated as of September 21, 2006, to the Credit Agreement
(as
defined below), among Caterpillar Financial Services Corporation, Caterpillar
Finance Corporation, the Japan Local Currency Banks (as defined below),
Citibank, N.A., as Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan
Local Currency Agent.
ARTICLE
I
Definitions
SECTION
1.01.
Defined
Terms.
As used in this
Addendum, the following terms shall have the meanings specified
below:
“Credit
Agreement”
means
the Credit
Agreement (Five-Year Facility), dated as of September 21, 2006, among
Caterpillar Inc., Caterpillar Financial Services Corporation, Caterpillar
International Finance p.l.c., Caterpillar Finance Corporation, the financial
institutions from time to time party thereto as Banks, Citibank, N.A., as Agent,
The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and
Citibank International plc, as Local Currency Agent, as the same may be amended,
waived, modified or restated from time to time.
“Japan
Local
Currency Advance”
means
any
Advance, denominated in Japanese Yen, made to CFC pursuant to Sections 2.03B
and 2.03C
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 and other communications provided for
hereunder shall be in writing (including telegraphic, telex or telecopy
communication) and mailed, telegraphed, telexed, telecopied or delivered, as
follows:
(a) if
to CFC, at
Caterpillar Finance Corporation, SBS Tower 00X, 0-00-0 Xxxx, Xxxxxxxx-xx, Xxxxx
158-0097, Japan, Attention: Managing Director (Facsimile No. 000-0000-0000,
with
a copy to CFSC at its address and telecopy number referenced in Section 8.02
of the Credit
Agreement;
(b) if
to CFSC, at its
address and telecopy number referenced in Section
8.02
of the Credit
Agreement;
(c) if
to the Japan
Local Currency Agent, at The Bank of Tokyo-Mitsubishi UFJ, Ltd., Corporate
Banking Division No. 3, Corporate Banking Group, 0-0, Xxxxxxxxxx 0-xxxxx,
Xxxxxxx-xx, Xxxxx, Xxxxx, Attention: Xx. Xxxxxx Xxxxxxxxx (Telecopy No.:
00-0000-0000 / 00-0-0000-0000) with a copy to the Agent at its address and
telecopy number referenced in Section 8.02
of the Credit
Agreement;
(d) if
to a Japan Local
Currency Bank, at its address (and telecopy number) set forth in Schedule I
or in the
Assignment and Acceptance or Assumption and Acceptance pursuant to which such
Japan Local Currency Bank became a party hereto;
(e) if
to the Agent, at
its address at Bank Loan Syndications, Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx 00000, Attention: Bank Loan Syndications, Telecopier No. 000-000-0000,
with a copy to Citicorp North America, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxxx X’Xxxxxxx;
or
as to each
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall be deemed
to have been given three (3) Business Days after deposit in the mail (registered
or certified, with postage prepaid and properly addressed), when delivered
to
the telegraph company, upon receipt of a telex or telecopy or when delivered
in
person or by courier service, except that notices and communications to the
Japan Local Currency Agent pursuant to Article
II
or V
hereof or
Article
II
of the Credit Agreement shall not be effective until received by the Japan
Local
Currency Agent.
SECTION
4.04.
Ratification
of
Guaranty.
By its execution
of this Addendum, CFSC ratifies and confirms its guaranty contained in
Article
IX
of the Credit Agreement with respect to the Japan Local Currency Advances made
pursuant to this Addendum which Guaranty remains in full force and
effect.
SECTION
4.05.
Sharing
of
Payments, Etc.
If any Japan Local
Currency Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of the Japan
Local Currency Advances made by it (other than pursuant to Section
2.02(c),
2.05(d),
2.10,
2.12
or 8.04
of the Credit
Agreement) in excess of its ratable share of payments on account of the Japan
Local Currency Advances obtained by all the Japan Local Currency Banks, such
Japan Local Currency Bank shall forthwith purchase from the other Japan Local
Currency Banks such participations in the Japan Local Currency Advances made
by
them as shall be necessary to cause such purchasing Japan Local Currency Bank
to
share the excess payment ratably with each of them, provided,
however,
that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Japan Local Currency Bank, such purchase from each other Japan Local Currency
Bank shall be rescinded and each such other Japan Local Currency Bank shall
repay to the purchasing Japan Local Currency Bank the purchase price to the
extent of such recovery together with an amount equal to such other Japan Local
Currency Bank’s ratable share (according to the proportion of (i) the amount of
such other Japan Local Currency Bank’s required repayment to (ii) the total
amount so recovered from the purchasing Japan Local Currency Bank) of any
interest or other amount paid or payable by the purchasing Japan Local Currency
Bank in respect of the total amount so recovered. CFC agrees that any Japan
Local Currency Bank so purchasing a participation from another Japan Local
Currency Bank pursuant to this Section
4.05
may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Japan Local Currency Bank were the direct creditor of CFC in the amount of
such
participation.
SECTION
4.06.
Applicable
Law.
THIS ADDENDUM
SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
SECTION
4.07
Execution
in
Counterparts.
This Addendum may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which taken together shall constitute one and the same
agreement.
ARTICLE
V
The
Japan Local
Currency Agent
SECTION
5.01
Appointment;
Nature of Relationship.
The Bank of
Tokyo-Mitsubishi UFJ, Ltd. is appointed by the Japan Local Currency Banks as
the
Japan Local Currency Agent hereunder and under the Credit Agreement, and each
of
the Japan Local Currency Banks irrevocably authorizes the Japan Local Currency
Agent to act as the contractual representative of such Japan Local Currency
Bank
with the rights and duties expressly set forth herein and in the Credit
Agreement applicable to the Japan Local Currency Agent. The Japan Local Currency
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article
V.
Notwithstanding the use of the defined term “Japan Local Currency Agent,” it is
expressly understood and agreed that the Japan Local Currency Agent shall not
have any fiduciary responsibilities to any Japan Local Currency Bank or other
Bank by reason of this Addendum and that the Japan Local Currency Agent is
merely acting as the representative of the Japan Local Currency Banks with
only
those duties as are expressly set forth in this Addendum and the Credit
Agreement. In its capacity as the Japan Local Currency Banks’ contractual
representative, the Japan Local Currency Agent (i) does not assume any fiduciary
duties to any of the Banks, (ii) is a “representative” of the Japan Local
Currency Banks within the meaning of Section 9-102 of the Uniform Commercial
Code and (iii) is acting as an independent contractor, the rights and duties
of
which are limited to those expressly set forth in this Addendum and the Credit
Agreement. Each of the Japan Local Currency Banks agrees to assert no claim
against the Japan Local Currency Agent on any agency theory or any other theory
of liability for breach of fiduciary duty, all of which claims each Bank
waives.
SECTION
5.02
Powers.
The Japan Local
Currency Agent shall have and may exercise such powers under this Addendum
and
the Credit Agreement as are specifically delegated to the Japan Local Currency
Agent by the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Japan Local Currency Agent shall have neither any
implied duties or fiduciary duties to the Japan Local Currency Banks or the
Banks, nor any obligation to the Japan Local Currency Banks or the Banks to
take
any action hereunder or under the Credit Agreement except any action
specifically provided by this Addendum or the Credit Agreement required to
be
taken by the Japan Local Currency Agent.
SECTION
5.03
General
Immunity.
Neither the Japan
Local Currency Agent nor any of its respective directors, officers, agents
or
employees shall be liable to any of the Borrowers or any Bank for any action
taken or omitted to be taken by it or them hereunder or under the Credit
Agreement or in connection herewith or therewith except to the extent such
action or inaction is found in a final non-appealable judgment by a court of
competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.
SECTION
5.04
No
Responsibility for Advances, Creditworthiness, Collateral, Recitals,
Etc.
[Intentionally
Omitted. See Section
7.02
of the Credit
Agreement for these provisions.]
SECTION
5.05
Action
on
Instructions of Japan Local Currency Banks.
The Japan Local
Currency Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under the Credit Agreement in accordance with written
instructions signed by Majority Japan Local Currency Banks (except with respect
to actions that require the consent of all of the Banks as provided in the
Credit Agreement, including, without limitation, Section
8.01
thereof), and such
instructions and any action taken or failure to act pursuant thereto shall
be
binding on all of the Japan Local Currency Banks. The Japan Local Currency
Agent
shall be fully justified in failing or refusing to take any action hereunder
and
under the Credit Agreement unless it shall first be indemnified to its
satisfaction by the Japan Local Currency Banks pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
SECTION
5.06
Employment
of
Agents and Counsel.
The Japan Local
Currency Agent may execute any of its duties hereunder and under the Credit
Agreement by or through employees, agents, and attorneys-in-fact, and shall
not
be answerable to the Banks or the Japan Local Currency Banks, except as to
money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Japan Local Currency Agent shall be entitled to advice
of
counsel concerning the contractual arrangement among the Japan Local Currency
Agent and the Japan Local Currency Banks, as the case may be, and all matters
pertaining to its duties hereunder and under the Credit Agreement.
SECTION
5.07
Reliance
on
Documents; Counsel.
[Intentionally
Omitted. See Section
7.02
of the Credit
Agreement for these provisions.]
SECTION
5.08
Other
Transactions.
The Japan Local
Currency Agent may accept deposits from, lend money to, and generally engage
in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Addendum or the Credit Agreement, with CFSC, CFC or any
of
their respective Subsidiaries in which the Japan Local Currency Agent is not
prohibited hereby from engaging with any other Person.
SECTION
5.09
Bank
Credit
Decision.
[Intentionally
Omitted. See Section
7.04
of the Credit
Agreement for these provisions.]
SECTION
5.10
Successor
Japan
Local Currency Agent.
The Japan Local
Currency Agent (i) may resign at any time by giving written notice thereof
to
the Agent, the Japan Local Currency Banks and the Borrowers, and may appoint
one
of its affiliates as successor Japan Local Currency Agent and (ii) may be
removed at any time with or without cause by the Majority Japan Local Currency
Banks. Upon any such resignation or removal, the Majority Japan Local Currency
Banks, with the consent of the Agent, shall have the right to appoint (unless,
in the case of the resignation of the Japan Local Currency Agent, the resigning
Japan Local Currency Agent has appointed one of its affiliates as successor
Japan Local Currency Agent), on behalf of the Borrowers and the Japan Local
Currency Banks, a successor Japan Local Currency Agent. If no successor Japan
Local Currency Agent shall have been so appointed and shall have accepted such
appointment within thirty days after the retiring Japan Local Currency Agent’s
giving notice of resignation or the Majority Japan Local Currency Banks’ removal
of the retiring Japan Local Currency Agent, then the retiring Japan Local
Currency Agent may appoint, on behalf of the Borrowers and the Japan Local
Currency Banks, a successor Japan Local Currency Agent, which need not be one
of
its affiliates. Notwithstanding anything herein to the contrary, so long as
no
Event of Default, or event which would constitute an Event of Default but for
the requirement that notice be given, time elapse or both, has occurred and
is
continuing, each such successor Japan Local Currency Agent shall be subject
to
written approval by CFSC and CFC, which approval shall not be unreasonably
withheld. Such successor Japan Local Currency Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as the Japan Local Currency Agent hereunder by
a
successor Japan Local Currency Agent, such successor Japan Local Currency Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Japan Local Currency Agent, and the
retiring Japan Local Currency Agent shall be discharged from its duties and
obligations hereunder and under the Credit Agreement. After any retiring Japan
Local Currency Agent’s resignation hereunder as Japan Local Currency Agent, the
provisions of this Article
V
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Japan Local Currency Agent
hereunder and under the Credit Agreement.
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:___________________________
Name:
Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Name:
Title:
CITIBANK,
N.A., as
the Agent
By:___________________________
Name:
Title:
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Agent
By:___________________________
Name:
Title:
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Bank
By:___________________________
Name:
Title:
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
$100,000,000
|
|
Total
Japan Local Currency Commitment:
|
US
$100,000,000
|
|
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. Xxxxxx Xxxxxxxxx
Phone:
00-0000-0000 / 00-0-0000-0000
Fax:
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 TIBOR Margin as in effect from time to time during such Interest
Period; provided,
however,
after the
occurrence and during the continuance of an Event of Default or an event that
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both, the provisions of Section
2.07(d)
of the Credit
Agreement shall be applicable. Each Japan Local Currency Advance that is a
Japan
Base Rate Advance shall bear interest during any Interest Period at a per annum
rate equal to the Japan Base Rate in effect from time to time during such
Interest Period. The terms of Section 2.07 and the other provisions of the
Credit Agreement shall otherwise govern the accrual and payment of interest
on
Japan Local Currency Advances.
|
5.
|
Other:
|
Additional
Conditions Precedent: None
Termination
Date
for Addendum: The “Termination Date” under the Credit Agreement.
Prepayment
Notices:
CFC shall be permitted to prepay a Japan Local Currency Advance subject to
the
provisions of Section
8.04(b)
of the Credit
Agreement, on any Business Day, provided, in the case of any prepayment, notice
thereof is given to the Japan Local Currency Agent not later than 10:00 a.m.
(Tokyo time) at least three (3) Business Days prior to the date of such
prepayment.
SCHEDULE
III
to
Japan Local
Currency Addendum
OTHER
PROVISIONS
|
1.
|
Borrowing
Procedures:
|
(a) Notice
of Japan
Local Currency Borrowing shall be given by CFC to the Japan Local Currency
Agent
not later than 10:00 a.m. (Tokyo time) on the third Business Day prior to the
date of the proposed Japan Local Currency Borrowing (or not later than 10:00
a.m. (Tokyo time) on the Business Day of the proposed Japan Local Currency
Borrowing if such proposed Japan Local Currency Borrowing is requested on a
same-day basis), and the Japan Local Currency Agent shall give each Japan Local
Currency Bank prompt notice thereof in accordance with Section
4.03.
(b) Each
Notice of
Japan Local Currency Borrowing shall be addressed to the Japan Local Currency
Agent at its address set forth in Section
4.03
and shall specify
the bank account to which the Japan Local Currency Advances are to be
made.
|
2.
|
Funding
Arrangements:
|
Minimum
amounts/increments for Japan Local Currency Borrowings, repayments and
prepayments:
Same
as Credit
Agreement.
|
3.
|
Promissory
Notes:
None
required.
|
