CREDIT AGREEMENT (Five-Year Facility) Dated as of September 22, 2005 Among CATERPILLAR INC., CATERPILLAR FINANCIAL SERVICES CORPORATION, and CATERPILLAR FINANCE CORPORATION, as Borrowers THE FINANCIAL INSTITUTIONS NAMED HEREIN as Banks CITIBANK, N.A.,...
EXHIBIT
99.1
(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:
(Five-Year
Facility)
Dated
as of
September 22, 2005
Among
CATERPILLAR
FINANCIAL SERVICES CORPORATION,
and
CATERPILLAR
FINANCE
CORPORATION,
as
Borrowers
THE
FINANCIAL
INSTITUTIONS NAMED HEREIN
as
Banks
CITIBANK,
N.A.,
as
Agent,
THE
BANK OF
TOKYO-MITSUBISHI, 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
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
SECTION
2.01. The
Revolving Credit Advances; Allocation of Commitments.
SECTION
2.02.
Making the Revolving Credit Advances.
SECTION
2.03. Terms
of Japan Local Currency Facility.
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 and CFC.
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
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
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 Japan
Local Currency Borrowing
Exhibit
B-3 Notice
of
Allocation
Exhibit
B-4 Notice
of Bank
Addition
Exhibit
C-1 Form
of Assignment
and Acceptance
Exhibit
C-2 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 Form
of Japan Local
Currency Addendum
(Five-Year
Facility)
Dated
as of
September 22, 2005
Caterpillar
Inc., a
Delaware corporation (“Caterpillar”),
Caterpillar
Financial Services Corporation, a Delaware corporation (“CFSC”),
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, and The Bank of Tokyo-Mitsubishi, 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 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, 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-1
hereto.
“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-2
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.
“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 Japan Local Currency
Bank or the Japan Local Currency Banks, and, to the extent applicable, any
reference to a Bank includes a reference to its affiliate, branch or agency
which is a Japan Local Currency Bank.
“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 and CFC, and “Borrowers”
means all of the
foregoing.
“Borrower
Agent”
has the meaning
specified in Section
8.09.
“Borrowing”
means a Revolving
Credit Borrowing or a Japan Local Currency Borrowing.
“BOTM”
means The Bank of
Tokyo-Mitsubishi, 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 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, and (b) with respect
to
CFC, that either (i) CFSC and Caterpillar, in the aggregate, shall cease to
own,
free and clear of all liens, claims, security interests or other encumbrances,
directly or indirectly through one or more Subsidiaries of CFSC or Caterpillar,
90% or more of the outstanding shares of voting of stock of CFC on a fully
diluted basis or (ii) CFSC shall cease to own, free and clear of all liens,
claims, security interests or other encumbrances, directly or indirectly through
one or more of its Subsidiaries, 80% or more of the outstanding shares of voting
stock of CFC on a fully diluted basis.
“Closing
Date”
means September
22, 2005.
“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
and
(b) if it is a Japan Local Currency Bank, Japan Local Currency Advances, in
an
aggregate amount not to exceed the amount set forth opposite such 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 CFC, “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, (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 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 or
the
Japan Local Currency Agent, as applicable, in the London interbank market (or
other market where the Agent’s foreign exchange operations in respect of such
currency are then being conducted) or, in the case of Japanese Yen, in the
Tokyo
interbank market for such other currency at or about 11:00 a.m. (local time
applicable to the transaction in question) two (2) Business Days prior to the
date on which such amount is to be determined (provided
that if an
Equivalent Amount is being determined with respect to the making of a Japan
Local Currency Advance on a same-day basis, such amount shall be determined
at
or about 11:00 a.m. (Tokyo time) on the date of such Japan Local Currency
Advance), rounded up to the nearest amount of such currency as determined by
the
Agent or the Japan Local Currency Agent, as applicable, from time to time;
provided,
however,
that if at the
time of any such determination, for any reason, no such spot rate is being
quoted, the Agent or the Japan Local Currency Agent, as applicable, may use
any
reasonable method it deems appropriate (after consultation with the Borrowers)
to determine such amount, and such determination shall be conclusive absent
manifest error.
“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,
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, 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, 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 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;
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 of the rates per annum reported to the Agent by each Reference Bank
as
the rate at which deposits in euro are offered by such Reference Bank at
approximately 11:00 a.m. (Brussels time), on the day that is two (2) TARGET
Settlement Days preceding the first day of such Interest Period to other leading
banks in the euro-zone interbank market. 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 Revolving Credit Advance for the relevant Interest Period, an
interest rate obtained by dividing (a) the Eurocurrency Base Rate applicable
to
such Interest Period by (b) a percentage equal to 100% minus
the Eurocurrency
Rate Reserve Percentage, such Eurocurrency Rate to be adjusted automatically
on
and as of the effective date of any change in the Eurocurrency Rate Reserve
Percentage.
“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).
“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.
“Existing
Five-Year Credit Agreement”
means that
certain Credit Agreement (Five Year Facility) dated as of September 23, 2004,
among Caterpillar, CFSC, CFC, Caterpillar International Finance p.l.c., 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 the same may be amended, restated or otherwise
modified from time to time.
“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.
“Japan
Local
Currency Advance”
means any Advance
in Japanese Yen, made to CFC pursuant to Sections
2.03
and 2.03A
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
2.03
and 2.03A
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).
“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.
“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.
“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
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
2.03A(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 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; and (b) with respect to any Japan Local Currency
Advance, the office of the Japan Local Currency Agent set forth in the Japan
Local Currency Addendum, or in any case, such other office of the Agent or
the
Japan Local Currency Agent, as applicable, as shall be from time to time
selected by it by written notice to the Borrowers and the Banks.
“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 (364-Day Facility), dated as of September 23, 2004,
among the Borrowers, the financial institutions party thereto, Citibank, as
agent for such financial institutions, and BOTM, as Japan Local Currency Agent,
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 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 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 Japan Local Currency Commitment. No such change shall
result in a Bank’s Revolving Credit Commitment exceeding its Commitment. For
each Bank that is not a Japan Local Currency Bank, such Bank’s Revolving Credit
Commitment will be equal to its Commitment. For each Bank that is a Japan Local
Currency Bank, such Bank’s Revolving Credit Commitment will be equal to its
Commitment minus
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 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.
“Stated
Termination Date”
means September
22, 2010.
“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.
“364-Day
Credit
Agreement”
means that
certain Credit Agreement (364-Day Facility) dated as of September 22, 2005,
among Caterpillar, CFSC, certain financial institutions party thereto, and
Citibank, as agent for such financial institutions, as the same may be amended,
restated or otherwise modified from time to time.
“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.
“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
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 aggregate
Dollar Amount of the Total Japan Local Currency Commitment at such
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 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 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 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 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-3
hereto, specifying
therein the requested (i) effective date of such allocation or re-allocation
of
the Total Commitment, and (ii) Allocation for each Borrower. 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 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 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 Japan Local Currency Agent, promptly following
the making, payment or prepayment of each Revolving Credit Advance, and at
any
other time at the reasonable request of the Japan Local Currency Agent, a
statement setting forth the outstanding Revolving Credit Advances.
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 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 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 $75,000,000 and (ii) with respect to each Japan Local Currency Bank,
the
maximum amount (expressed in Dollar Amount) available to be borrowed from such
Japan Local Currency Bank thereunder (such Bank’s “Japan
Local
Currency Commitment”).
In no event
shall a Japan Local Currency Bank’s Japan 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 and Japan
Local Currency Advances would exceed such Bank’s Commitment, (vi) all Revolving
Credit Advances to CFSC plus
the Dollar Amount
of all 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 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
2.03A. 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-2
hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Japan Local
Currency Advances comprising such Japan Local Currency Borrowing, (iii) Interest
Period for such Borrowing and (iv) aggregate amount of such
Borrowing.
(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
2.03A
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 0.03% 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, 2006,
for
the period commencing on the Closing Date and ending on December 31, 2005,
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)
|
0.07%
|
|
Below
A-
(S&P) and A3 (Xxxxx’x) but BBB+ or better (S&P) or
Baa1
or
better (Xxxxx’x)
|
0.09%
|
|
Below
BBB+
(S&P) and Baa1 (Xxxxx’x) but BBB or better (S&P) or
Baa2
or
better (Xxxxx’x)
|
0.115%
|
|
Below
BBB
(S&P) and Baa2 (Xxxxx’x) or unrated
|
0.24%
|
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 10, 2005, 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 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-4
hereto, specifying
therein (i) the name and address of the proposed Added Bank, (ii) the date
on
which the Borrowers wish such Bank Addition to become effective, and (iii)
the
amount of the Commitment such Added Bank would have hereunder after giving
effect to such Bank Addition. 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-2
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, automatically upon and simultaneously with becoming an Added Bank,
such Added Bank shall have acquired a ratable risk participation in all then
outstanding Japan Local Currency Advances, with such ratable risk participation
based on such Added Bank’s Japan Local Currency Commitment as a fraction of the
aggregate of all Japan Local Currency Commitments.
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)
|
0.15%
|
0.20%
|
|
Below
AA-
(S&P) and Aa3 (Xxxxx’x) but A- or better (S&P) or
A3
or better
(Xxxxx’x)
|
0.18%
|
0.23%
|
|
Below
A-
(S&P) and A3 (Xxxxx’x) but BBB+ or better (S&P) or
Baa1
or
better (Xxxxx’x)
|
0.535%
|
0.66%
|
|
Below
BBB+
(S&P) and Baa1 (Xxxxx’x) or unrated
|
0.635%
|
0.76%
|
(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)
|
0.15%
|
0.20%
|
|
Below
AA-
(S&P) and Aa3 (Xxxxx’x) but A- or better (S&P) or
A3
or better
(Xxxxx’x)
|
0.18%
|
0.23%
|
|
Below
A-
(S&P) and A3 (Xxxxx’x) but BBB+ or better (S&P) or
Baa1
or
better (Xxxxx’x)
|
0.535%
|
0.66%
|
|
Below
BBB+
(S&P) and Baa1 (Xxxxx’x) or unrated
|
0.635%
|
0.76%
|
(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 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 or (ii) 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
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
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
TIBO Rate Advances or Eurocurrency Rate Advances or to fund or maintain TIBO
Rate Advances or Eurocurrency Rate Advances hereunder, (i) all TIBO Rate
Advances and Eurocurrency Rate Advances of such Bank to any Borrower then
outstanding shall be redenominated into Dollars and begin bearing interest
at
the Base Rate (or in the case of TIBO Rate Advances, be maintained in Japanese
Yen but begin bearing interest at the Japan Base Rate) for the Interest Period
selected by such Borrower in accordance with the procedures of Section
2.02(a)
or Section
2.03A(a),
notwithstanding
any prior election by such Borrower to the contrary, either (x) one Business
Day
after such notice, or (y) if such Bank may lawfully continue to maintain and
fund such Advances at the applicable Eurocurrency Rate or TIBO Rate to a later
day during such Interest Period, on such later day (in which case such Borrower
shall in addition reimburse such Bank for any resulting losses as provided
in
Section
8.04(b))
and (ii) the
obligation of such Bank to make TIBO Rate Advances or Eurocurrency Rate
Advances, as applicable, shall be suspended until such Bank shall notify the
Agent that the circumstances causing such suspension no longer exist, and until
such notification has been given (i) in the case of Eurocurrency Rate Advances,
such Bank shall fund its Revolving Credit Advance made in connection with each
Revolving Credit Borrowing comprised of Eurocurrency Rate Advances as a Base
Rate Advance, and (ii) in the case of a Japan Local Currency Advance, the Japan
Local Currency Banks shall fund each Japan Local Currency Borrowing with Japan
Base Rate Advances.
(d) If
the Majority
Banks shall, at least one Business Day before the date of any requested
Revolving Credit Borrowing, notify the Agent that the Eurocurrency Rate for
Eurocurrency Rate Advances comprising such Borrowing will not adequately reflect
the cost to such Majority Banks of making or funding their respective
Eurocurrency Rate Advances for such Revolving Credit Borrowing, 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 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) 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.
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 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 Japan Local
Currency Advances based on the Japan Base Rate shall be made by the Japan Local
Currency Agent on the basis of a year of 365 or 366 days, as the case may be;
and all computations of interest based on the Eurocurrency Rate, the TIBO Rate
or the Federal Funds Rate, and all computations of the Facility Fees shall
be
made by the Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Facility Fees are payable.
Each determination by the Agent or the Japan Local Currency Agent, as the case
may be, of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(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 Japan Local Currency
Addendum or under each of the Notes shall be made, in accordance with
Section
2.11,
free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding,
in the case of
each Bank, the Japan Local Currency Agent and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws
of
which such Bank, the Japan Local Currency Agent or the Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such 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 Japan Local Currency Addendum or under any Note
to
any Bank, the Japan Local Currency Agent or the Agent, (i) the sum payable
by
such Borrower shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section
2.12)
such Bank, the
Japan Local Currency Agent or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay
the
full amount deducted to the relevant taxation authority or other authority
in
accordance with applicable law.
(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 Japan Local Currency Addendum or under the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Japan Local Currency Addendum or the Notes
(hereinafter referred to as “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 CFC, by CFSC). In all other cases, they shall be
paid by Caterpillar.
(c) Each
Borrower will
indemnify each Bank, the Japan Local Currency Agent and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this
Section
2.12)
paid by such
Bank, the Japan Local Currency Agent or the Agent (as the case may be) and
any
liability (including penalties, interest and expenses) arising therefrom or
with
respect thereto. This indemnification shall be made within 30 days from the
date
such Bank, the Japan Local Currency Agent or the Agent (as the case may be)
makes written demand therefor.
(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 Japan Local Currency
Addendum or under the Notes, the Borrowers will furnish to the Agent, at such
address, a certificate from each appropriate taxing authority, or an opinion
of
counsel acceptable to the Agent, in either case stating that such payment is
exempt from or not subject to Taxes; provided,
however,
that if any Bank,
the Agent or the Japan Local Currency Agent, as a recipient of payments called
for hereunder, shall be exempt from or entitled to a reduced rate of any Taxes,
particularly those imposed by way of withholding, whether by virtue of the
provisions of a relevant treaty or otherwise, it shall be incumbent upon such
Bank, the Agent or the Japan Local Currency Agent to (a) so inform the
Borrowers, (b) furnish to the Borrowers whatever certification or other
documentation may be required by law or regulation to establish such exemption
or reduced rate, and (c) cooperate with the Borrowers in any and all other
respects to the extent necessary to establish such exemption or eligibility
for
reduced rate.
(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 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 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 Agent or the Banks having at least 66-2/3% of
the
Available Revolving Credit Commitments make it impracticable for the
Eurocurrency Rate Advances comprising such Borrowing to be denominated in the
Agreed Currency specified by the applicable Borrower, then the Agent shall
forthwith give notice thereof to such Borrower and the Banks, or the applicable
Borrower shall give notice to the Agent and the Banks, as the case may be,
and
such Eurocurrency Rate Advances shall not be denominated in such currency but
shall be made on the date of such Borrowing 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 or the Banks having at least 66-2/3%
of the Available Revolving Credit Commitments 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 or the Banks having at least 66-2/3% of the Available
Revolving Credit Commitments 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 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 commitment, facility, agency and
administrative fees provided for 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 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 Japan Local Currency
Addendum (if applicable), the Notes and the other documents to be delivered
hereunder, and of all documents evidencing other necessary corporate action
and
governmental approvals, if any, with respect to this Agreement, the Japan Local
Currency Addendum (if applicable), the Notes and the other documents to be
delivered hereunder.
(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 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 Xxxxxx Xxxxx & Xxxx 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, and (ii) the obligation
of
the Japan Local Currency Banks to make the initial Advances under the Japan
Local Currency Addendum shall be subject to any further conditions set forth
in
the Japan Local Currency Addendum.
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 or CFC, Section
4.02,
are correct on and
as of the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made
on
and as of such date, and
(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, and
(2)
under the laws of Japan, in the case of CFC, and is duly qualified to transact
business and is in good standing as a foreign corporation in every jurisdiction
in which failure to qualify may materially adversely affect (i) the financial
condition or operations of such Borrower and its consolidated Subsidiaries
taken
as a whole or (ii) the ability of such Borrower to perform its obligations
under
this Agreement and its Notes and under the Japan Local Currency Addendum, in
the
case of CFC and CFSC.
(b) Authority;
No
Conflict.
The execution,
delivery and performance by such Borrower of this Agreement and its Notes,
and
the Japan Local Currency Addendum, in the case of CFC and CFSC, are within
such
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 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
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, 2004 and as at June 30, 2005, 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, 2004, 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 Japan Local Currency Addendum or any Note or which may materially
adversely affect the ability of such Borrower to perform its obligations under
this Agreement and its Notes or under the Japan Local Currency Addendum in
the
case of CFC and CFSC.
(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 and CFC.
Each
of CFSC and
CFC 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) 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 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 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,
2005. 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 or in the Japan Local Currency
Addendum, or by such Borrower (or any of its officers) in connection with this
Agreement or the Japan Local Currency Addendum, shall prove to have been
incorrect in any material respect when made or deemed made; or
(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 and
CFC (but excluding, in each case, Debt consisting of such Borrower’s obligations
hereunder (including the Japan Local Currency Addendum, if applicable), under
the Existing Five-Year Credit Agreement or under the 364-Day 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 and CFC (but
excluding, in each case, Debt consisting of such Borrower’s obligations
hereunder (including the Japan Local Currency Addendum, if applicable), under
the Existing Five-Year Credit Agreement or under the 364-Day 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 and CFC, shall be
required to be prepaid, defeased, purchased or otherwise acquired by such
Borrower or any Subsidiary of such Borrower (other than CFSC and its
Subsidiaries in the case of Caterpillar), other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, or
(iv) any
“Event
of
Default” shall occur with respect to such Borrower under the 364-Day Credit
Agreement or the Existing Five-Year Credit Agreement, or
(v) in
the case of CFC,
any CFSC Event of Default shall occur, or the CFSC Guaranty shall be terminated,
revoked, or declared void, voidable, invalid or unenforceable; or
(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 and CFC, shall
be
rendered against such Borrower or any of its Subsidiaries (other than CFSC
and
its Subsidiaries in the case of Caterpillar) and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which
a
stay of enforcement of such judgment or order, by reason of a pending appeal
or
otherwise, shall not be in effect;
(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 or CFC, a Change of Control shall occur; or
(i) With
respect to
CFSC or CFC, the Support Agreement shall for any reason fail to be in full
force
and effect, or any action shall be taken by any Borrower to discontinue or
to
assert the invalidity or unenforceability of the Support Agreement, or CFSC
or
Caterpillar shall fail to comply with any of the terms or provisions of the
Support Agreement;
then,
and in any
such event, (i) the Agent (x) shall at the request, or may with the consent,
of
the Majority Banks, by notice to such Borrower, declare the obligation of each
Bank to make Advances to such Borrower to be terminated, whereupon the same
shall forthwith terminate, and (y) shall at the request, or may with the
consent, of the Majority Banks, by notice to such Borrower, declare the Advances
to such Borrower, all interest thereon and all other amounts payable under
this
Agreement to be forthwith due and payable, whereupon such Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which
are hereby expressly waived by such Borrower; and (ii) in the case of a CFSC
Event of Default or a CFC Event of Default, the Japan Local Currency Agent,
(x)
shall at the request, or may with the consent, of the Majority Japan Local
Currency Banks, by notice to CFC, declare the obligation of each Japan Local
Currency Bank to make Japan Local Currency Advances to CFC to be terminated,
whereupon the same shall forthwith terminate, and (y) shall at the request,
or
may with the consent, of the Majority Japan Local Currency Banks, by notice
to
CFC, declare the Japan Local Currency Advances to CFC, all interest thereon
and
all other amounts payable under this Agreement and the Japan Local Currency
Addendum to be forthwith due and payable, whereupon such Japan Local Currency
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of
any
kind, all of which are hereby expressly waived by CFC; provided,
however,
upon the
occurrence of any Event of Default with respect to a Borrower described in
Section
6.01(e),
(A) the
obligation of each Bank to make Advances to such Borrower shall automatically
be
terminated and (B) the Advances to such Borrower, all such interest and all
such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by such Borrower. Notwithstanding anything in the foregoing to the
contrary, the fact that an Event of Default exists with respect to one of the
Borrowers hereunder shall not of itself constitute an Event of Default with
respect to any of the other Borrowers, provided,
however,
that in the case
of CFC, any CFSC Event of Default shall be a CFC Event of Default.
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 or under the Japan 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 or the Majority Japan 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 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, 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 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 and the Japan 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 or the Japan 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)
or the Japan
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 any other instrument or document
furnished pursuant hereto or thereto; and (vi) shall incur no liability under
or
in respect of this Agreement or the Japan 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, the Advances made by it and any
Notes issued to it, Citibank shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not
the
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 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
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 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 and the Japan Local Currency Agent (to the extent not
reimbursed by the Borrowers), ratably according to the respective principal
amounts of the Revolving Credit Advances or Japan Local Currency Advances,
as
applicable, then held by each of them (or if no Revolving Credit Advances or
Japan Local Currency Advances are at the time outstanding, ratably according
to
the respective amounts of their Commitments or Japan Local Currency Commitments,
as applicable), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent or the Japan Local Currency Agent in any way relating
to or arising out of this Agreement, or the Japan Local Currency Addendum or
any
action taken or omitted by the Agent or the Japan Local Currency Agent under
this Agreement or the Japan Local Currency Addendum; provided
that no Bank shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent’s or the Japan Local Currency Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent and the Japan Local Currency Agent promptly upon demand for its
ratable share (determined as specified in the first sentence of this
Section
7.05)
of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the
Agent
or the Japan Local Currency Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiation, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement or the Japan Local
Currency Addendum, to the extent that the Agent or the Japan Local Currency
Agent is not reimbursed for such expenses by the Borrowers.
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 resignation or removal under the Japan 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 or the Japan Local Currency Agent under the Japan 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 Japan Local Currency Addendum
or
the Notes, nor consent to any departure by any Borrower therefrom, shall in
any
event be effective unless the same shall be in writing and signed by the
Borrowers and the Majority Banks or the Majority Japan Local Currency Banks,
as
the case may be, and then such waiver or consent shall be effective only in
the
specific instance and for the specific purpose for which given; provided,
however,
that no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (a) waive any of the conditions specified in
Section
3.01,
3.02,
or 3.03
(if and to the
extent that the Borrowing which is the subject of such waiver would involve
an
increase in the aggregate outstanding amount of Advances over the aggregate
amount of Advances outstanding immediately prior to such Borrowing), (b)
increase the Commitments of the Banks (other than pursuant to Section
2.05(c)),
increase the
Japan Local Currency Commitments, or subject the Banks to any additional
obligations, (c) reduce or forgive the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any
fees
or other amounts payable hereunder, (e) change the definition of “Majority
Banks” or “Majority Japan Local Currency Banks,” or the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances, or
the
number of Banks, which shall be required for the Banks, or any of them, to
take
any action hereunder or under the Japan Local Currency Addendum, or the
percentage of the Japan Local Currency Commitments or the aggregate unpaid
Japan
Local Currency Advances, or the number of Japan Local Currency Banks, which
shall be required for the Japan Local Currency Banks, or any of them, to take
any action hereunder or under the Japan Local Currency Addendum, (f) amend,
modify, or otherwise release CFSC from its obligations under, Article
IX
hereof or (g) amend this Section
8.01;
and provided further
that no amendment,
waiver or consent shall, unless in writing and signed by the Agent or the Japan
Local Currency Agent, as applicable, in addition to the Borrower and the Banks
required above to take such action, affect the rights or duties of the Agent
or
the Japan Local Currency Agent, as applicable, under this Agreement, the Japan
Local Currency Addendum or any Note.
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 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 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 and the Japan Local
Currency Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Japan Local
Currency Addendum, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of
counsel for the Agent and the Japan Local Currency Agent with respect thereto
and with respect to advising the Agent and the Japan Local Currency Agent as
to
their rights and responsibilities under this Agreement and the Japan Local
Currency Addendum. The Borrowers agree to pay all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses of the
Banks), in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Japan Local Currency Addendum,
the Notes and the other documents to be delivered hereunder. 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 Japan
Local Currency Agent, each Bank, each Japan Local Currency Bank, and each of
their directors, officers and employees from and against any and all claims,
damages, liabilities and expenses (including, without limitation, reasonable
fees and disbursements of outside counsel and reasonable allocated costs and
expenses of in-house counsel) which may be incurred by or asserted against
the
Agent, the Japan Local Currency Agent, such Bank or such Japan Local Currency
Bank, or any such director, officer or employee in connection with or arising
out of any investigation, litigation, or proceeding (i) related to any
transaction or proposed transaction (whether or not consummated) in which any
proceeds of any Borrowing are applied or proposed to be applied, directly or
indirectly, by such Borrower, whether or not the Agent, the Japan Local Currency
Agent, such Bank or such Japan Local Currency Bank, or any such director,
officer or employee is a party to such transactions or (ii) related
to such
Borrower’s entering into this Agreement or the Japan Local Currency Addendum, or
to any actions or omissions of such Borrower, any of its Subsidiaries or
affiliates or any of its or their respective officers, directors or employees
in
connection therewith. 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 Japan Local Currency Addendum, and any Note
of such Borrower held by such Bank, irrespective of whether or not such Bank
shall have made any demand under this Agreement, the Japan Local Currency
Addendum, or such Note and although such obligations may be unmatured. 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 22, 2005 when it shall
have been executed by the Borrowers, the Japan Local Currency Agent, and the
Agent and when the Agent shall have been notified by each Bank that such Bank
has executed it and thereafter this Agreement shall be binding upon and inure
to
the benefit of the Borrowers, the Agent, the Japan Local Currency Agent, and
each Bank and their respective successors and assigns, except that no Borrower
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of all the Banks.
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 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 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 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 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 or the Japan Local Currency
Addendum or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Japan Local Currency Addendum,
or
any other instrument or document furnished pursuant hereto or thereto; and
(ii)
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto.
(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 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-1
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,
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, each Bank, each Japan Local Currency Bank and
each Borrower hereby (i) irrevocably submits to the jurisdiction of any New
York
State or United States federal court sitting in New York City (and any appellate
court hearing appeals from any such court) in any action or proceeding arising
out of or relating to this Agreement and hereby irrevocably agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or in such federal court; (ii) irrevocably waives, to
the
fullest extent that it may effectively do so, the defense of an inconvenient
forum to the maintenance of any such action or proceeding; and (iii) agrees
that
a final judgment in any such action or proceeding may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
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 Japan Local Currency Agent, any Bank
or
any Japan Local Currency Bank to serve legal process in any other manner
permitted by law or affect the right of any Borrower, the Agent, the Japan
Local
Currency Agent, any Bank or any Japan Local Currency Bank to bring any action
or
proceeding against any other party hereto or any property of any other party
hereto in the courts of any other jurisdictions.
SECTION
8.09.
Caterpillar
as
Agent for the Borrowers; CFSC as Service of Process Agent for
CFC.
CFSC and CFC
hereby appoint Caterpillar as their agent for purposes of giving notice to
or
otherwise advising the Agent or the Banks in such instances where this Agreement
calls for notice or advice from the Borrowers rather than from a specific
Borrower (Caterpillar, in such capacity, being referred to herein as the
“Borrower
Agent”).
CFC hereby
irrevocably (a) consents to service of process upon it by mailing or delivering
such service to CFSC, which CFC appoints as its agent for such purpose, at
CFSC’s address set forth in Section
8.02,
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 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 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 JAPAN LOCAL CURRENCY AGENT, EACH BANK AND EACH JAPAN LOCAL
CURRENCY BANK IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG ANY OF THE PARTIES
HERETO ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE JAPAN LOCAL CURRENCY ADDENDUM, OR ANY NOTE. 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.
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 CFC, and the due and punctual payment of all other
amounts payable by CFC under this Agreement and the Japan Local Currency
Addendum. Upon failure by CFC to pay punctually any such amount, CFSC shall
forthwith on demand pay the amount not so paid at the place, in the manner
and
with the effect otherwise specified in Article
II
of this Agreement.
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 CFC under this Agreement or the Japan Local Currency Addendum, by operation
of law or otherwise, or the exchange, release or non-perfection of any
collateral security therefor;
(ii) any
modification or
amendment of or supplement to this Agreement, the Japan Local Currency Addendum,
or any Note;
(iii) any
change in the
corporate existence, structure or ownership of CFC, including the merger of
CFC,
into another entity, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting CFC or its assets, or any resulting release or
discharge of any obligation of CFC under this Agreement or the Japan Local
Currency Addendum, as applicable;
(iv) the
existence of
any claim, set-off or other rights which CFSC may have at any time against
CFC,
the Agent, the Japan Local Currency Agent, any Bank or any other Person, whether
in connection herewith or any unrelated transactions, provided
that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(v) any
invalidity or
unenforceability relating to or against CFC for any reason of any provision
or
all of this Agreement or the Japan Local Currency Addendum, or any provision
of
applicable law or regulation purporting to prohibit the payment by CFC of the
principal of or interest on any Advance or any other amount payable by it under
this Agreement; or
(vi) any
other act or
omission to act or delay of any kind by CFC, the Agent, the Japan Local Currency
Agent, any Bank or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable
discharge of CFSC’s obligations under this Article
IX
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 CFC and all other amounts
payable by CFSC and CFC under this Agreement and the Japan Local Currency
Addendum shall have been paid in full and shall survive the Termination Date.
If
at any time any payment of the principal of or interest on any Advance to CFC
or
any other amount payable by CFC under this Agreement or the Japan Local Currency
Addendum is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of CFC or otherwise, 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 Japan Local Currency Agent,
any Bank or any other Person against 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 CFC or any of CFC’s other obligations under this
Agreement or the Japan Local Currency Addendum, and authorizes the Agent, the
Japan Local Currency Agent, or the Banks to take any action or exercise any
remedy with respect thereto which the Agent, the Japan Local Currency Agent,
or
the Banks in its or their discretion shall determine, without notice to CFSC.
In
the event the Agent, the Japan Local Currency Agent, or the Banks elect to
give
notice of any action with respect to any such collateral, ten (10) 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
CFC with respect to such payment; provided
that CFSC shall
not enforce any right or demand or receive any payment by way of subrogation
until all amounts of principal of and interest on the Advances to CFC and all
other amounts payable by CFC under this Agreement and the Japan Local Currency
Addendum have been paid in full.
SECTION
9.06.
Stay
of
Acceleration.
In the event that
acceleration of the time for payment of any amount payable by CFC under this
Agreement or the Japan Local Currency Addendum is stayed upon the insolvency,
bankruptcy or reorganization of CFC, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable
by
CFSC hereunder forthwith on demand by the Agent for the account of the
Banks.
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
FINANCE
CORPORATION
By
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx X.
Xxxxxx
Title:
Representative Director
CITIBANK,
N.A., as
Agent
By
/s/
Xxxxxxx Xxx
Name:
Xxxxxxx
Xxx
Title:
Vice
President
THE
BANK OF
TOKYO-MITSUBISHI, LTD., as Japan Local Currency Agent
By
/s/
Muneya Taniguchi
Name:
Muneya
Taniguchi
Title:
Chief
Manager
Banks
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$175,000,000
|
$175,000,000
|
CITIBANK,
N.A.
|
|
By
/s/
Xxxxxxx Xxx
Name:
Xxxxxxx
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
|
|
|
$131,250,000
|
$131,250,000
|
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
|
|
|
$131,250,000
|
$131,250,000
|
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
|
|
|
$106,250,000
|
$106,250,000
|
ABN
AMRO BANK
N.V.
|
|
By
/s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Managing Director
By
/s/
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx
Xxxxxxx
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
|
|
|
$112,500,000
|
$112,500,000
|
BARCLAYS
BANK
PLC
|
|
By
/s/
Xxxxx
Xxxxxx
Name:
Xxxxx
Xxxxxx
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
REDIT
COMMITMENT
|
|
|
$106,250,000
|
$106,250,000
|
SOCIÉTÉ
GÉNÉRALE
|
|
By
/s/
Xxxxxxxx X. Xxxxxxx
Name:
Xxxxxxxx X. 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
|
|
|
$62,500,000
|
$62,500,000
|
WESTLB
AG
|
|
By
/s/
Xxxxxx
X. Xxxxx III
Name:
Xxxxxx
X. Xxxxx III
Title:
Director
By
/s/
Xxxxxxxx Xxxxxxx
Name:
Xxxxxxxx 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
|
|
|
$75,000,000
|
$75,000,000
|
ROYAL
BANK OF
CANADA
|
|
By
/s/
Xxxxxx
Xxxx
Name:
Xxxxxx
Xxxx
Title:
Authorized Signatory
Domestic
Lending Office:
Royal
Bank of
Canada, New York Branch
Xxx
Xxxxxxx
Xxxxx
Xxx
Xxxx, XX
00000
Attention:_____________________
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:_____________________
Phone:(000)
000-0000/(000) 000-0000
Fax:(000)
000-0000/(000) 000-0000
|
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$50,000,000
|
$50,000,000
|
TORONTO
DOMINION (TEXAS) LLC
|
|
By
/s/
Xxx
Xxxxxxxx
Name:
Xxx
Xxxxxxxx
Title:
Authorized Agent
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
|
|
|
$75,000,000
|
$75,000,000
|
AUSTRALIA
AND
NEW ZEALAND
BANKING
GROUP
LIMITED
|
|
By
/s/
Xxxxxxx
Xxxxx
Name:
Xxxxxxx
Xxxxx
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
|
|
|
$75,000,000
|
$0
|
THE
BANK OF
TOKYO-MITSUBISHI
LTD.,
CHICAGO
BRANCH
|
|
By
/s/
Tsuguyuki Umene
Name:
Tsuguyuki Umene
Title:
Deputy
General Manager
Domestic
Lending Office:
The
Bank of
Tokyo-Mitsubishi, 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, Ltd.
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX
00000
Attention:
Xxxxxx Xxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
|
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$75,000,000
|
LLOYDS
TSB
BANK plc
|
|
By
/s/
Xxxxxx
Xxxxxxx
Name:
Xxxxxx
Xxxxxxx
Title:
VP
Corporate Banking
By
/s/
Xxxxx
Xxxxxxx
Name:
Xxxxx
Xxxxxxx
Title:
Assistant Vice President
Financial
Institutions USA
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
|
|
|
$50,000,000
|
$50,000,000
|
STANDARD
CHARTERED BANK
|
|
By
/s/
Xxxxx
X. Xxxxxxx
Name:
Xxxxx
X. Xxxxxxx
Title:
Senior
Vice President
By
/s/
Xxxxxx
X. Xxxxxxxxxx
Name:
Xxxxxx
X. Xxxxxxxxxx
Title:
AVP/Credit Documentation
Credit
Risk
Control
Standard
Chartered Bank NY
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
|
|
|
$50,000,000
|
$50,000,000
|
COMMERZBANK
AKTIENGESELLSCHAFT,
NEW
YORK
BRANCH AND
GRAND
CAYMAN
BRANCH
|
|
By
/s/
Xxxxxx
Xxxxxx
Name:
Xxxxxx
Xxxxxx
Title:
Assistant Vice President
By
/s/
Hajo
Neugartner
Name:
Hajo
Neugartner
Title:
Vice
President
Domestic
Lending Office:
Commerzbank
Aktiengesellschaft,
New
York
Branch and
Grand
Cayman
Branch
Two
World
Financial Center
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxx Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
Eurocurrency
Lending Office:
Commerzbank
Aktiengesellschaft,
New
York
Branch and
Grand
Cayman
Branch
Two
World
Financial Center
Xxx
Xxxx, XX
00000
Attention:
Xxxxxxxx Xxxxxxx
Phone: (000)
000-0000
Fax: (000)
000-0000
|
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$75,000,000
|
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
|
|
|
$75,000,000
|
$75,000,000
|
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
|
|
|
$37,500,000
|
$37,500,000
|
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
|
|
|
$50,000,000
|
$50,000,000
|
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
|
|
|
$37,500,000
|
$37,500,000
|
U.S.
BANK,
NATIONAL ASSOCIATION
|
|
By
/s/
Xxxxx
Xxxxxx
Name:
Xxxxx
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
|
|
|
$25,000,000
|
$25,000,000
|
BANCA
NAZIONALE DEL LAVORO S.p.A., NEW YORK BRANCH
|
|
By
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx
Xxxxxxxx
Title:
Relationship Manager
By
/s/
Xxxxxxxxx XxXxxxx
Name:
Xxxxxxxxx XxXxxxx
Title:
Senior
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(212)
000-0000
|
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$25,000,000
|
$25,000,000
|
KBC
BANK N.V.
|
|
By
/s/
Stefano Snozzi
Name:
Stefano
Snozzi
Title:
First
Vice President
By
/s/
Xxxxxx
Xxxxxxxx
Name:
Xxxxxx
Xxxxxxxx
Title:
First
Vice President
Domestic
Lending Office:
KBC
Bank
N.V.
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Stefano Snozzi
Phone: (000)
000-0000
Fax:(000)
000-0000
Eurocurrency
Lending Office:
KBC
Bank
N.V.
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx, XX
00000
Attention:
Stefano Snozzi
Phone: (000)
000-0000
Fax:(000)
000-0000
|
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$25,000,000
|
$25,000,000
|
THE
NORTHERN
TRUST COMPANY
|
|
By
/s/
Xxxxxxxx X. Xxxxxx
Name:
Xxxxxxxx X. Xxxxxx
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
$1,625,000,000 $1,550,000,000
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 22, 2005, 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, The Bank of Tokyo-Mitsubishi,
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 22, 2005, 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, The Bank of Tokyo-Mitsubishi,
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 To
be included
in Notices of Revolving Credit Borrowing pursuant to Section 3.02, unless
Section 3.03 shall apply.
[(excluding those
contained in the second sentence of subsection (e) thereof)]2 To
be included
in Notices of Revolving Credit Borrowing pursuant to Section
3.03.
[and Section
4.02]3 To
be included
in Notices of Revolving Credit Borrowing from CFSC.
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
2
3
EXHIBIT
B-2
NOTICE
OF JAPAN
LOCAL CURRENCY BORROWING
The
Bank of
Tokyo-Mitsubishi, 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 22, 2005, 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”), certain Banks parties thereto, The Bank of Tokyo-Mitsubishi, Ltd., as
Japan Local Currency Agent, and Citibank, N.A., as Agent for said Banks, and
(2)
the Japan Local Currency Addendum dated as of September 22, 2005, among the
undersigned, CFSC, the Japan Local Currency Banks party thereto, and The Bank
of
Tokyo-Mitsubishi, Ltd., as Japan 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 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
2.03A
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 Japan
Local Currency 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)]4 To
be included
in Notices of Borrowing pursuant to Section 3.02, unless Section 3.03 shall
apply.
[(excluding those
contained in the second sentence of subsection (e) thereof)]5 To
be included
in Notices of Borrowing pursuant to Section 3.03.
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:
4
5
EXHIBIT
B-3
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 and Caterpillar Finance Corporation (the “Borrowers”),
refers to the Credit Agreement (Five-Year Facility) dated as of September 22,
2005, 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,
The Bank of Tokyo-Mitsubishi, 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:
3
Borrower Allocation
Caterpillar
Inc. $________
Caterpillar
Financial Services Corporation $________
Very
truly
yours,
CATERPILLAR
INC.
By:
Title:
EXHIBIT
B-4
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 and Caterpillar
Finance Corporation (the “Borrowers”), refer to the Credit Agreement (Five-Year
Facility) dated as of September 22, 2005, 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, The Bank of Tokyo-Mitsubishi, 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:
______________________________
______________________________
______________________________
3
(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
FINANCE
CORPORATION
By:
______________________________
Title:
EXHIBIT
C-1
ASSIGNMENT
AND
ACCEPTANCE
Dated
_______________, 200_
Reference
is made
to the Credit Agreement (Five-Year Facility) dated as of September 22, 2005,
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 and Caterpillar Finance Corporation (the “Borrowers”), the
Banks (as defined in the Credit Agreement), The Bank of Tokyo-Mitsubishi, 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 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 Japan Local Currency Commitment
on Schedule
I
hereto; (ii)/(iii)]6 Applicable
if
Assignor is a Japan Local Currency Bank.
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 Japan Local Currency
Addendum or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the Japan Local Currency Addendum
or any other instrument or document furnished pursuant thereto; (iii) makes
no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by any
Borrower of any of its obligations under the Credit Agreement, the Japan Local
Currency Addendum or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Notes, if any, referred to in paragraph 1 above
and requests that the Agent exchange each such Note from each Borrower for
a new
Note executed by such Borrower payable to the order of the Assignee or new
Notes
executed by such Borrower payable to the order of the Assignee and the Assignor,
as applicable.
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
Japan
Local Currency Addendum]7 Applicable
if
Assignor is a Japan Local Currency Bank.
held by it
immediately prior to the Effective Date, have the rights and obligations under
the Credit Agreement [and the Japan Local Currency Addendum]8 Applicable
if
Assignor is a Japan Local Currency Bank.
that have been
assigned to it pursuant to this Assignment and Acceptance and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish
its
rights and be released from its obligations under the Credit Agreement [and
the
Japan Local Currency Addendum]9 Applicable
if
Assignor is a Japan Local Currency Bank..
5. Upon
such
acceptance by the Agent, from and after the Effective Date, the Agent [and
the
Japan Local Currency Agent]10 Applicable
if
Assignor is a Japan Local Currency Bank.
shall make all
payments under the Credit Agreement [,the Japan Local Currency
Addendum]11 Applicable
if
Assignor is a Japan Local Currency Bank.
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 Japan Local Currency
Addendum]12 Applicable
if
Assignor is a Japan Local Currency Bank.
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.
6
7
8
9
10
11
12
Schedule
1
to
Assignment
and
Acceptance
Dated
__________,
200_
Section 1.
Percentage
Interest: __________%
Assignor’s
Commitment: $_________
Assignor’s
Revolving Credit 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 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
13 This
date
should be no earlier than the date of acceptance by the Agent.: ________,
200_
Section 4.
Domestic
Lending
Office ______________
Eurocurrency
Lending Office ______________
[NAME
OF
ASSIGNOR]
By:___________________________
Title:
[NAME
OF
ASSIGNEE]
By:___________________________
Title:
3
Accepted
this _____
day
of
_________________, 200_
[NAME
OF AGENT], as
Agent
By:___________________________
Title:
[NAME
OF JAPAN
LOCAL CURRENCY AGENT], as Japan Local Currency Agent
By:___________________________
Title:
3
Agreed
to
this _____
day
of
_____________, 200_ 14 To
be included
when consent of the Borrowers is required pursuant to Section
8.07(a)(ii).
CATERPILLAR
INC.
By:___________________________
Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Title:
13
14
EXHIBIT
C-2
ASSUMPTION
AND
ACCEPTANCE
Dated
_______________, 200_
Reference
is made
to the Credit Agreement (Five-Year Facility) dated as of September 22, 2005,
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 and Caterpillar Finance Corporation (the “Borrowers”), the
Banks (as defined in the Credit Agreement), The Bank of Tokyo-Mitsubishi, 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 [and Japan Local
Currency Commitment] under the Credit Agreement in the amounts set forth on
Schedule
1
hereto]15 To
be used if
the Added Bank is not already a Bank under the Credit Agreement.
[increase
its
Commitment and Revolving Credit Commitment [and Japan Local Currency Commitment]
under the Credit Agreement to the amounts set forth on Schedule
1
hereto]16 To
be used if
the Added Bank is already a Bank under the Credit Agreement. and
the Added Bank
has agreed to so [become a Bank and accept and make a Commitment and Revolving
Credit Commitment [and Japan Local Currency Commitment] under the Credit
Agreement in such amounts]17 To
be used if
the Added Bank is not already a Bank under the Credit
Agreement.
[increase its
Commitment and Revolving Credit Commitment [and Japan Local Currency Commitment]
under the Credit Agreement to such amounts].18 To
be used if
the Added Bank is already a Bank under the Credit Agreement.
The Added Bank
agrees, upon the Effective Date of this Assumption and Acceptance, to purchase
a
participation in any Revolving Credit Advances [Japan Local Currency Advances]
which are outstanding on the Effective Date in the amount determined pursuant
to
Section
2.05(d)
of the Credit
Agreement.
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 Japan Local Currency Addendum, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Japan Local Currency Addendum or any other instrument or document
furnished pursuant thereto; or (ii) has made any representation or warranty,
nor
assumed any responsibility, with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under the Credit Agreement, the Japan Local Currency Addendum or
any
other instrument or document furnished pursuant thereto.
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 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.
15
16
17
18
Schedule
1
to
Assumption
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 Japan
Local Currency Commitment
after
giving effect
to this Assumption
and
Acceptance: $_________]
Section 2.
Effective
Date
19 This
date
should be no earlier than the date of acceptance by the Agent.: ________,
200_
Section 3.
Domestic
Lending
Office ______________
Eurocurrency
Lending Office ______________
[Japan
Local
Currency Lending Office ______________]
CATERPILLAR
INC.
By:___________________________
Title:
CATERPILLAR
FINANCIAL
SERVICES
CORPORATION
By:___________________________
Title:
CATERPILLAR
FINANCE
CORPORATION
By:___________________________
Title:
3
[NAME
OF ADDED
BANK]
By:___________________________
Title:
Accepted
this _____
day
of
_________________, 200_
[NAME
OF
AGENT]
By:___________________________
Title:
19
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
22, 2005,
among
Caterpillar
Inc.,
Caterpillar
Financial
Services
Corporation,
Caterpillar
Finance
Corporation,
said
Banks,
Citibank, N.A., as Agent,
and
The Bank of
Tokyo-Mitsubishi, 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 22, 2005 (the “Credit
Agreement”), among the Borrower, [names of other Borrowers under the Credit
Agreement], the Banks parties thereto, The Bank of Tokyo-Mitsubishi, 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 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 Japan Local Currency Addendum]20 For
CFSC
opinion.
and its
Notes.
2. The
execution,
delivery and performance by the Borrower of the Credit Agreement [, the Japan
Local Currency Addendum]21 For
CFSC
opinion.
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 Japan Local Currency
Addendum]22 For
CFSC
opinion.
and the Notes to
be executed by it.
4. The
Credit
Agreement [, the Japan Local Currency Addendum]23 For
CFSC
opinion.
and its Notes have
been duly executed and delivered by a duly authorized officer of the Borrower.
Assuming that the Agent, the Japan Local Currency Agent, and each Bank party
to
the Credit Agreement as of the date hereof have duly executed and delivered
the
Credit Agreement and that each such Bank has notified the Agent that such Bank
has executed the Credit Agreement, [, and assuming that the Japan Local Currency
Agent and each Japan Local Currency Bank party to the Japan Local Currency
Addendum as of the date hereof have duly executed and delivered the Japan Local
Currency Addendum and that each such Japan Local Currency Bank has notified
the
Agent that such Japan Local Currency Bank has executed the Japan Local Currency
Addendum] the Credit Agreement is, [the Japan Local Currency Addendum is,]
the
Notes executed and delivered by the Borrower on or prior to the date hereof
are,
and any other Notes when executed and delivered by the Borrower pursuant to
the
terms of the Credit Agreement will be, the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their
respective terms, except as enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to
or affecting 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 Japan Local Currency Addendum,] or any Note or
which
is reasonably likely to materially adversely affect (i) the financial condition
or operations of the Borrower and its consolidated Subsidiaries taken as a
whole
or (ii) the ability of the Borrower to perform its obligations under the Credit
Agreement [, the Japan Local Currency Addendum] and the Notes to be executed
by
it.
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 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 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,
20
21
22
23
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, and The Bank of Tokyo-
Mitsubishi,
Ltd.,
as
Japan
Local
Currency Agent
|
Re:
|
Caterpillar
Inc., Caterpillar Financial Services Corporation, 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
22,
2005 (“Credit Agreement”), among the Borrowers, the Banks party thereto, The
Bank of Tokyo-Mitsubishi, 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 and the Japan Local Currency Addendum, executed by each of
the
parties thereto.
(2) The
documents
furnished by the Borrowers to the Agent listed on Exhibit B hereto, including
the opinions of internal counsel for each of Caterpillar Inc. (“Caterpillar”)
and Caterpillar Financial Services Corporation (“CFSC”).
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 Japan Local Currency
Agent and the Agent have duly executed and delivered the Credit Agreement,
and
the Japan Local Currency Addendum, as applicable, with all necessary power
and
authority (corporate and otherwise).
To
the extent that our opinions expressed below involve conclusions as to the
matters set forth in the opinions of counsel referred to in item (2) 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 upon such other
investigation as we have deemed necessary, we are of the following
opinion:
1. 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 Japan Local
Currency Addendum is the legal, valid and binding obligation of CFSC,
enforceable against CFSC in accordance with its terms.
2. The
opinions and
other documents referred to in item (2) above are substantially responsive
to
the requirements of the Credit Agreement.
Our
opinions above
are subject to the following qualifications:
(a) Our
opinion in
paragraph 1 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 in
paragraph 1 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 opinions
expressed above are 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 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
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 and 8.05 of the Credit Agreement,
or
any comparable provisions under the Japan Local Currency Addendum, insofar
as
they provide that any Bank purchasing a participation from another Bank pursuant
thereto may exercise set-off or similar rights with respect to such
participation or that any affiliate of a Bank may exercise set-off or similar
rights with respect to such Bank’s claims under the Credit Agreement, the Japan
Local Currency Addendum or the Notes or (ii) Section 2.12(c),
7.05 or
8.04(c), or any comparable provisions of the Japan Local Currency Addendum,
to
the extent that any such section or provision may be construed as requiring
indemnification with respect to a claim, damage, liability or expense incurred
as a result of any violation of law by a Bank or the Agent.
(f)
We express no
opinion as to the legality, validity or enforceability of any of the Credit
Agreement, the Japan Local Currency Addendum or the documents listed on Exhibit
B with regard to or as against Caterpillar Finance Corporation (“CFC”), nor
shall any of the opinions contained herein be construed to apply to
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 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
or entity without our specific prior written consent, except that you may
furnish copies thereof (i) to any of your permitted successors and assigns
in
respect of the Credit Agreement, the Japan Local Currency Addendum and the
Notes, (ii) to your independent auditors and attorneys, (iii) upon the request
of any state or federal authority or official having regulatory jurisdiction
over you, and (iv) pursuant to order or legal process of any court or
governmental agency. The opinions expressed herein are 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
Messrs. Sidley
Xxxxxx Xxxxx & Xxxx 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
WestLB
AG
Royal
Bank of
Canada
Toronto
Dominion
(Texas) LLC
Australia
and New
Zealand Banking Group Limited
The
Bank of
Tokyo-Mitsubishi, Ltd.
Lloyds
TSB Bank
plc
Standard
Chartered
Bank
Commerzbank
Aktiengesellschaft, New York Branch and Grand Cayman Xxxxxx
Xxxxxxx
Street
Commitment Corporation
Xxxxxxx
Xxxxx Bank
USA
ING
Capital
LLC
Mellon
Bank,
X.X.
X.X.
Bank, National
Association
Banca
Nazionale del
Lavoro S.p.A., New York Branch
KBC
Bank
N.V.
The
Northern Trust
Company
EXHIBIT
B
to
the
Opinion
of
Messrs. Sidley
Xxxxxx Xxxxx & Xxxx LLP
Documents
|
1.
|
Certified
copies of the resolutions of the Board of Directors of each of Caterpillar
and CFSC approving the Credit Agreement, the Japan Local Currency
Addendum
and the Notes to be executed by such
Borrower.
|
|
2.
|
A
certificate
of the Secretary or an Assistant Secretary of each of Caterpillar
and CFSC
certifying the names and true signatures of the officers of such
Borrower
authorized to sign the Credit Agreement and the Japan Local Currency
Addendum, in the case of CFSC, and the Notes to be executed by such
Borrower.
|
|
3.
|
Opinions
of
Xxxxx X. Xxxxxx, counsel for Caterpillar, and Xxxxxxx Xxxxxxx, counsel
for
CFSC.
|
|
4.
|
Copies
of the
Certificates of Incorporation and Bylaws for each of Caterpillar
and CFSC,
certified by the Secretary or an Assistant Secretary of such
Borrower.
|
|
5.
|
The
Notes in
favor of the Banks requesting the same executed and delivered on
or prior
to the date hereof.
|
|
6.
|
The
Japan
Local Currency Addendum executed by the Japan Local Currency Agent,
the
Japan Local Currency Banks, CFSC and
CFC.
|
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 22, 2005, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Agreement”) among
Caterpillar Inc., Caterpillar Financial Services Corporation and Caterpillar
Finance Corporation (collectively, the “Borrowers”), the Banks party thereto,
The Bank of Tokyo-Mitsubishi, 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 22, 2005, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Agreement”) among
Caterpillar Inc., Caterpillar Financial Services Corporation and Caterpillar
Finance Corporation (collectively, the “Borrowers”), the Banks party thereto,
and The Bank of Tokyo-Mitsubishi 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
CATERPILLAR
FINANCE
CORPORATION
JAPAN
LOCAL
CURRENCY ADDENDUM
JAPAN
LOCAL
CURRENCY ADDENDUM, dated as of September 22, 2005, 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, 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 22, 2005, among
Caterpillar Inc., Caterpillar Financial Services Corporation, Caterpillar
Finance Corporation, the financial institutions from time to time party thereto
as Banks, Citibank, N.A., as Agent, and The Bank of Tokyo-Mitsubishi, Ltd.,
as
Japan Local Currency Agent, as the same may be amended, waived, modified or
restated from time to time.
“Japan
Local
Currency Advance”
means any
Advance, denominated in Japanese Yen, made to CFC pursuant to Sections 2.03
and 2.03A
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: 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, 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, 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:
S-
CITIBANK,
N.A., as
the Agent
By:___________________________
Name:
Title:
S-
THE
BANK OF
TOKYO-MITSUBISHI, LTD., as the Japan Local Currency Agent
By:___________________________
Name:
Title:
S-
THE
BANK OF
TOKYO-MITSUBISHI, LTD., as the Japan Local Currency Bank
By:___________________________
Name:
Title:
S-
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, Ltd.
|
US
$75,000,000
|
|
Total
Japan Local Currency Commitment:
|
US
$75,000,000
|
|
Japan
Local
Currency Bank Name
|
Applicable
Japan Local Currency Lending Office
|
|
|
|
|
The
Bank of
Tokyo-Mitsubishi, Ltd.
|
The
Bank of
Tokyo-Mitsubishi, 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 9:30 a.m. (Tokyo time) on the third Business Day prior to the
date of the proposed Japan Local Currency Borrowing (or not later than 9:30
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.
|
CH1
3303209v.7
