CATERPILLAR FINANCE CORPORATION JAPAN LOCAL CURRENCY ADDENDUM
EXHIBIT
99.2
CATERPILLAR
FINANCE
CORPORATION
JAPAN
LOCAL
CURRENCY ADDENDUM
JAPAN
LOCAL
CURRENCY ADDENDUM, dated as of September 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.
CH1
3608481v.1
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: Xxxxxx Xxx/President (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:
/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Director
By:/s/Xxxxx
X.
Xxxxxxxx
Name:
Xxxxx X.
Xxxxxxxx
Title:
Treasurer
CITIBANK,
N.A., as
the Agent
By:
/s/Xxxxx
X.
Xxx
Name:
Xxxxx X.
Xxx
Title:
Vice
President
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Agent
By:/s/Muneya
Taniguchi
Name:
Muneya
Taniguchi
Title:
Chief
Manager
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Bank
By:/s/Muneya
Taniguchi
Name:
Muneya
Taniguchi
Title:
Chief
Manager
SCHEDULE
I
to
Japan Local
Currency Addendum
Japan
Local
Currency Banks
Japan
Local
Currency Commitments
Total
Japan Local
Currency Commitment
Applicable
Lending
Office
|
Japan
Local Currency Bank Name
|
Japan
Local Currency Commitment
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
US
$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.
|
