CREDIT AGREEMENT (Five-Year Facility) Dated as of September 20, 2007 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
(Five-Year
Facility)
Dated
as of
September 20, 2007
Among
CATERPILLAR
INC.,
and
CATERPILLAR
FINANCE
CORPORATION,
as
Borrowers
THE
FINANCIAL
INSTITUTIONS NAMED HEREIN
as
Banks
CITIBANK,
N.A.,
as
Agent,
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD.,
as
Japan Local
Currency Agent
ABN
AMRO BANK
N.V.,
BANK
OF AMERICA,
N.A.,
BARCLAYS
BANK
PLC,
▇.▇.
▇▇▇▇▇▇
SECURITIES, INC.
and
SOCIÉTÉ
GÉNÉRALE,
as
Arrangers
and
CITIGROUP
GLOBAL
MARKETS INC.,
as
Sole Lead
Arranger and Sole Bookrunner
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TABLE
OF
CONTENTS
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Page
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ARTICLE
I
DEFINITIONS AND ACCOUNTING TERMS
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1
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SECTION
1.01.
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Certain
Defined Terms
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1
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SECTION
1.02.
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Computation
of Time Periods
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11
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SECTION
1.03.
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Accounting
Terms
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11
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ARTICLE
II
AMOUNTS AND TERMS OF THE ADVANCES
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11
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SECTION
2.01.
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The
Revolving
Credit Advances; Allocation of Commitments.
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11
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SECTION
2.02.
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Making
the
Revolving Credit Advances.
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12
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SECTION
2.03.
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Terms
of
Japan Local Currency Facility.
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14
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SECTION
2.04.
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Fees
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16
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SECTION
2.05.
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Reduction
of
the Commitments; Bank Additions
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17
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SECTION
2.06.
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Repayment
of
Advances
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18
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SECTION
2.07.
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Interest
on
Advances
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18
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SECTION
2.08.
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Interest
Rate
Determination
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20
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SECTION
2.09.
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Prepayments
of Advances
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21
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SECTION
2.10.
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Increased
Costs; Capital Adequacy; Illegality
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21
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SECTION
2.11.
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Payments
and
Computations.
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23
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SECTION
2.12.
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Taxes
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24
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SECTION
2.13.
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Sharing
of
Payments, Etc
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25
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SECTION
2.14.
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Tax
Forms
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25
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SECTION
2.15.
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Market
Disruption; Denomination of Amounts in Dollars.
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26
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ARTICLE
III
CONDITIONS OF LENDING
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26
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SECTION
3.01.
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Conditions
Precedent to Initial Advances
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26
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SECTION
3.02.
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Conditions
Precedent to Each Borrowing
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27
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SECTION
3.03.
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Conditions
Precedent to Certain Borrowings
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27
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ARTICLE
IV
REPRESENTATIONS AND WARRANTIES
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28
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SECTION
4.01.
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Representations
and Warranties of the Borrowers
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28
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SECTION
4.02.
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Additional
Representations and Warranties of CFSC and CFC.
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29
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ARTICLE
V
COVENANTS OF THE BORROWERS
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29
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SECTION
5.01.
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Affirmative
Covenants
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29
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SECTION
5.02.
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Negative
Covenants
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32
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SECTION
5.03.
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Financial
Covenant of Caterpillar
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32
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SECTION
5.04.
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Financial
and
Other Covenants of CFSC
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32
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ARTICLE
VI
EVENTS OF DEFAULT
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33
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SECTION
6.01.
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Events
of
Default
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33
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ARTICLE
VII
THE AGENT
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35
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SECTION
7.01.
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Authorization
and Action
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35
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SECTION
7.02.
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Agent’s
Reliance, Etc
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36
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SECTION
7.03.
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Citibank
and
Affiliates
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36
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SECTION
7.04.
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Bank
Credit
Decision
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36
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SECTION
7.05.
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Indemnification
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36
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SECTION
7.06.
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Successor
Agent
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37
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SECTION
7.07.
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The
Arrangers
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37
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ARTICLE
VIII
MISCELLANEOUS
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37
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SECTION
8.01.
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Amendments,
Etc
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37
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SECTION
8.02.
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Notices,
Etc
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38
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SECTION
8.03.
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No
Waiver;
Remedies
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39
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SECTION
8.04.
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Costs,
Expenses and Taxes
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39
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SECTION
8.05.
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Right
of
Set-off
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40
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SECTION
8.06.
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Binding
Effect
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40
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SECTION
8.07.
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Assignments
and Participations.
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40
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SECTION
8.08.
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Governing
Law; Submission to Jurisdiction; Service of Process.
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42
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SECTION
8.09.
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Caterpillar
as Agent for the Borrowers; CFSC as Service of Process Agent for
CFC
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42
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SECTION
8.10.
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Judgment
Currency
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43
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SECTION
8.11.
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Execution
in
Counterparts
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43
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SECTION
8.12.
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Waiver
of
Jury Trial
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43
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SECTION
8.13.
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USA
Patriot
Act Notification
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43
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SECTION
8.14.
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Confidentiality
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44
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SECTION
8.15.
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Termination
of Prior Agreement
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44
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ARTICLE
IX
CFSC GUARANTY
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44
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SECTION
9.01.
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The
Guaranty
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44
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SECTION
9.02.
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Guaranty
Unconditional
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45
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SECTION
9.03.
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Discharge
Only Upon Payment In Full; Reinstatement in Certain
Circumstances
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45
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SECTION
9.04.
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Waiver
by
CFSC
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45
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SECTION
9.05.
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Subrogation
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45
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SECTION
9.06.
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Stay
of
Acceleration
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46
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EXHIBITS
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Exhibit
A
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Form
of
Note
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Exhibit
B-1
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Notice
of
Revolving Credit Borrowing
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Exhibit
B-2
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Notice
of
Japan Local Currency Borrowing
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Exhibit
B-3
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Notice
of
Allocation
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Exhibit
B-4
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Notice
of
Bank Addition
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Exhibit
C-1
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Form
of
Assignment and Acceptance
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Exhibit
C-2
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Form
of
Assumption and Acceptance
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Exhibit
D
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Form
of
Opinion of Counsel for each of Caterpillar and CFSC
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Exhibit
E
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Form
of
Opinion of Special New York Counsel to the Agent
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Exhibit
F-1
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Form
of
Compliance Certificate (Caterpillar)
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Exhibit
F-2
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Form
of
Compliance Certificate (CFSC)
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Exhibit
G
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Form
of Japan
Local Currency Addendum
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(Five-Year
Facility)
Dated
as of
September 20, 2007
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
UFJ,
Ltd., as the Japan Local Currency Agent, agree as follows:
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.
1
“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, ▇.▇. ▇▇▇▇▇▇
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).
2
“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.
“BTMU”
means
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
“Business
Day” means a day of the year (i) on which banks are not required or
authorized to close in New York City or Chicago, Illinois, (ii) if the
applicable Business Day relates to any Eurocurrency Rate Advance, on which
dealings are carried on in the London interbank market, (iii) if the applicable
Business Day relates to any Eurocurrency Rate Advance in euro or any other
Agreed Currency other than Dollars or Pounds Sterling, a day on which dealings
are carried on in the London interbank market and on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is
operating or, as the case may be, on which banks and foreign exchange markets
are open for business in the principal financial center for the Agreed Currency
concerned, and (iv) if the applicable Business Day relates to a Japan Local
Currency Advance, on which banks are generally open in Tokyo for the conduct
of
substantially all of their commercial lending activities and on which dealings
in Japanese Yen are carried on in the Tokyo interbank market.
“Capitalization”
means, as at any date, the sum of (i) Caterpillar Consolidated Debt at such
date, plus (ii) stockholders’ equity (including preferred stock) of
Caterpillar at such date.
“Caterpillar
Consolidated Debt” means, as at any date, the aggregate Debt of Caterpillar
and its Subsidiaries (other than CFSC) at such date.
“Caterpillar
Event of Default” means an Event of Default with respect to
Caterpillar.
“Caterpillar
Purchase Claims” means the outstanding liens on or claims against or in
respect of Caterpillar’s accounts receivable arising out of the sale or
securitization by Caterpillar of its accounts receivable.
“CFC
Event of
Default” means an Event of Default with respect to CFC.
“CFSC
Consolidated Debt” means, as at any date, the aggregate Debt of CFSC and its
Subsidiaries at such date excluding all obligations of CFSC (up to a maximum
amount equal to 5% of CFSC’s total assets at such date) pursuant to guaranties
of dealers’ obligations to the Dealer Capital Access Trust.
“CFSC
Event of
Default” means an Event of Default with respect to CFSC.
“CFSC
Guaranty” means the guaranty by CFSC of the obligations of 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.
3
“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 20, 2007.
“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 ▇▇▇▇▇’▇ or S&P, and “Credit Ratings”
means with respect to each such Borrower, such credit ratings from
both ▇▇▇▇▇’▇
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).
4
“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.
5
“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 Reuters Screen LIBOR01
(or
other applicable Screen for such Agreed Currency) as of 11:00 a.m. (London
time)
two (2) Business Days prior to the first day of such Interest Period, and having
a maturity equal to such Interest Period; provided, that (i) if Reuters
Screen LIBOR01 is not available to the Agent for any reason, the applicable
Eurocurrency Base Rate for the relevant Interest Period shall instead be the
applicable British 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 Reuters Screen EURIBOR RATES/EURIBOR RATES ACT/360 as of 11:00
a.m. (Brussels time), on the date that is two (2) TARGET Settlement Days
preceding the first day of such Interest Period; provided, that if such
rate does not appear on Reuters Screen EURIBOR RATES/EURIBOR RATES ACT/360,
then
an interest rate per annum equal to the arithmetic average (rounded upwards
to
the nearest .01%) determined by the Agent of the rates per annum reported to
the
Agent by each Reference Bank as the rate at which deposits in euro are offered
by such Reference Bank at approximately 11:00 a.m. (Brussels time), on the
day
that is two (2) TARGET Settlement Days preceding the first day of such Interest
Period to other leading banks in the euro-zone interbank market. 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 Reuters Screen
in
accordance with the foregoing provisions of this subparagraph shall be subject
to corrections, if any, made in such rate and displayed by the Reuters Service
within one hour of the time when such rate is first displayed by such
service.
“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.
6
“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.
“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
BTMU
in Tokyo, Japan, from time to time, as BTMU’s short-term base rate.
7
“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 BTMU, 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 ▇▇▇▇▇’▇ 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).
8
“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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii)
for any other Agreed Currency, the office of Citibank located on the date hereof
at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 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 (Five-Year Facility), dated
as of September 22, 2005, among the Borrowers, the financial institutions party
thereto, Citibank, as agent for such financial institutions, and BTMU, as Japan
Local Currency Agent, as amended from time to time prior to the date
hereof.
“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.
9
“S&P”
means Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
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 20, 2012.
“Subsidiary”
means, with respect to any Borrower, a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by such
Borrower or by one or more other Subsidiaries, or by such Borrower and one
or
more other Subsidiaries. For the purposes of this definition, “voting
stock” means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock
has
such voting power by reason of any contingency.
“Support
Agreement” means that certain Support Agreement dated as of December 21,
1984, amended June 14, 1995, between Caterpillar and CFSC, as the same may
be
amended or modified in accordance with the terms of Section 5.04(c) and
in effect from time to time.
“Swiss
Francs” means the lawful currency of Switzerland.
“Termination
Date” means the earlier to occur of (i) the Stated Termination Date and (ii)
the date of termination in whole of the Commitments pursuant to Section
2.05(a) or 6.01.
“364-Day
Credit
Agreement” means that certain Credit Agreement (364-Day Facility) dated as
of September 20, 2007, among Caterpillar, CFSC, CFC, certain financial
institutions party thereto, BTMU, as the Japan Local Currency Agent thereunder,
and Citibank, as agent for such financial institutions, as the same may be
amended, restated, supplemented or otherwise modified from time to
time.
“TIBO
Rate”
means, with respect to a TIBO Rate Advance for the relevant Interest Period,
the
applicable Japanese ▇▇▇ ▇▇▇▇▇ interest rate displayed by the Japan Bankers’
Association on Reuters Screen 17097 as of 11:00 a.m. (Tokyo time) two (2)
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period; provided, however, that if
Reuters Screen 17097 is not available to the Japan Local Currency Agent for
any
reason, the applicable TIBO Rate for the relevant Interest Period shall instead
be the rate determined by the Japan Local Currency Agent as the arithmetic
average (rounded upward, if necessary, to an integral multiple of 1/16 of 1%)
of
the rates per annum (or the rate per annum, in the event there is only one
Japan
Local Currency Bank) reported to the Japan Local Currency Agent by each Japan
Local Currency Bank as the rate at which such Japan Local Currency Bank offers
to place deposits in Japanese Yen with leading banks in the Tokyo interbank
market at approximately 11:00 a.m. (Tokyo time) two (2) Business Days prior
to
the first day of such Interest Period, in the approximate amount of such Japan
Local Currency 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).
10
“2006
Five-Year
Credit Agreement” means that certain Credit Agreement (Five-Year Facility),
dated as of September 21, 2006, among Caterpillar, CFSC, CFC and Caterpillar
International Finance p.l.c., as Borrowers thereunder, certain financial
institutions party thereto, BTMU, as Japan Local Currency Agent thereunder,
Citibank International plc, as Local Currency Agent, and Citibank, as agent
for
such financial institutions, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
“Type”,
when
used in reference to any Revolving Credit Advance, has the meaning specified
in
the definition of “Revolving Credit Advance”, and when used in reference to a
Japan Local Currency Advance, refers to a Japan Base Rate Advance or a TIBO
Rate
Advance, each of which shall be a “Type” of Advance.
“USA
Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No.
107-56,115 Stat. 272 (2001), as amended.
SECTION
1.02. Computation
of
Time Periods. In this Agreement in the computation of periods of
time from a specified date to a later specified date, the word “from” means
“from and including” and the words “to” and “until” each means “to but
excluding”.
SECTION
1.03. Accounting
Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles in
the
United States consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e) and all references contained
herein to generally accepted accounting principles shall mean United States
generally accepted accounting principles.
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.
11
(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.
(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.
12
(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 create a rebuttable presumption of such
losses, costs or expenses.
(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.
13
(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 primafacie
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.
(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.
14
(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.
15
(a) Caterpillar
and CFSC jointly and severally agree to pay to each Bank on the Closing Date
a
closing fee equal to the sum of (i) 0.05% of the portion of such Bank’s
commitment that exceeds such Bank’s commitment under the Prior Agreement and
(ii) 0.02% of the remaining portion of such Bank’s Commitment.
(b) Each
of Caterpillar and CFSC shall pay to the Agent, for the account of each Bank,
a
fee (each a “Facility Fee” and collectively, the “Facility Fees”)
calculated on a daily basis by multiplying the Facility Fee Rate in effect
on
each day by the amount of such Bank’s Allocated Commitment for such Borrower as
in effect on such day (without regard to the actual or deemed usage of such
Allocated Commitment) and payable quarterly in arrears, commencing on January
2,
2008, for the period commencing on the Closing Date and ending on December
31,
2007, 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 (▇▇▇▇▇’▇)
|
0.05%
|
|
Below
AA-
(S&P) and Aa3 (▇▇▇▇▇’▇) but
A-
or better
(S&P) or
A3
or better
(▇▇▇▇▇’▇)
|
0.06%
|
|
Below
A-
(S&P) and A3 (▇▇▇▇▇’▇) but
BBB+
or
better (S&P) or
Baa1
or
better (▇▇▇▇▇’▇)
|
0.08%
|
|
Below
BBB+
(S&P) and Baa1 (▇▇▇▇▇’▇) but
BBB
or better
(S&P) or
Baa2
or
better (▇▇▇▇▇’▇)
|
0.10%
|
|
Below
BBB
(S&P) and Baa2 (▇▇▇▇▇’▇) or
unrated
|
0.125%
|
The
Facility Fees
allocable to each of Caterpillar and CFSC shall be the several obligation of
each.
(c) The
Borrowers shall pay to the Agent, solely for its own account, and to Citigroup
Global Markets Inc., solely for its own account, the fees specified in the
letter agreement dated as of August 2, 2007, 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.
16
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 (such acceptance not to be unreasonably withheld),
willing to assume the obligations of a Bank hereunder with aggregate Commitments
up to the amount of the Retired Commitments. 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 Section2.05(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 acceptance
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.
17
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:
18
(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 (▇▇▇▇▇’▇)
|
0.10%
|
0.15%
|
|
Below
AA-
(S&P) and Aa3 (▇▇▇▇▇’▇) but
A-
or better
(S&P) or A3
or
better (▇▇▇▇▇’▇)
|
0.19%
|
0.24%
|
|
Below
A-
(S&P) and A3 (▇▇▇▇▇’▇) but
BBB+
or
better (S&P) or Baa1
or
better (▇▇▇▇▇’▇)
|
0.27%
|
0.37%
|
|
Below
BBB+
(S&P) and Baa1 (▇▇▇▇▇’▇) but
BBB
or better
(S&P) or Baa2
or
better (▇▇▇▇▇’▇)
|
0.35%
|
0.45%
|
|
Below
BBB
(S&P) and Baa2 (▇▇▇▇▇’▇)
or
unrated
|
0.50%
|
0.625%
|
19
(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 (▇▇▇▇▇’▇)
|
0.10%
|
0.15%
|
|
Below
AA-
(S&P) and Aa3 (▇▇▇▇▇’▇)
but
A-
or better
(S&P) or A3
or
better (▇▇▇▇▇’▇)
|
0.19%
|
0.24%
|
|
Below
A-
(S&P) and A3 (▇▇▇▇▇’▇)
but
BBB+
or
better (S&P) or Baa1
or
better (▇▇▇▇▇’▇)
|
0.27%
|
0.37%
|
|
Below
BBB+
(S&P) and Baa1 (▇▇▇▇▇’▇)
but BBB
or better
(S&P) or Baa2
or
better (▇▇▇▇▇’▇)
|
0.35%
|
0.45%
|
|
Below
BBB
(S&P) and Baa2 (▇▇▇▇▇’▇)
or
unrated
|
0.50%
|
0.625%
|
(d) Post-Default
Interest. Upon the occurrence, and during the continuance, of any
Event of Default, the unpaid principal amount of each Advance shall bear
interest at a rate per annum equal at all times to 2% per annum above the rate
per annum otherwise required to be paid on such Advance in accordance with
subsection (a) or (b) above; provided that any amount of principal which
is not paid when due (whether at stated maturity, by acceleration or otherwise)
shall bear interest, from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum equal at all times
to
the greater of (x) 2% per annum above the Base Rate in effect from time to
time
and (y) 2% per annum above the rate per annum required to be paid on such
Advance immediately prior to the date on which such amount became
due.
SECTION
2.08. Interest
Rate
Determination.
(a) If,
pursuant to the definition of “Eurocurrency Base Rate”, quotes from the
Reference Banks are required, each Reference Bank shall furnish to the Agent
timely information for the purpose of determining the Eurocurrency
Rate. If either one of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Bank.
20
(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 (without premium or penalty
other than any payment required pursuant to Section 8.04(b)) 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 written demand by such Bank
(with a copy of such demand to the Agent), pay to the Agent for the account
of
such Bank additional amounts sufficient to compensate such Bank for such
increased cost. A certificate describing in reasonable detail the
amount of such increased cost, submitted to the Borrowers and the Agent by
such
Bank, shall create a rebuttable presumption of such increased
cost. 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 written
demand by such Bank (with a copy of such demand to the Agent), the applicable
Borrower shall immediately pay to the Agent for the account of such Bank, from
time to time as specified by such Bank, additional amounts sufficient to
compensate such Bank (or, if applicable, such Person controlling such Bank)
in
the light of such circumstances, to the extent that such Bank reasonably
determines such increase in capital to be allocable to the existence of such
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.
21
(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).
22
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.
23
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.
24
(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.
25
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 principal, accrued interest, fees, expenses,
costs and other amounts outstanding under the terms of the Prior Agreement,
accrued to the Closing Date, shall have been paid, and the commitments of the
lenders thereunder to extend credit shall have terminated, and (ii) the Agent
shall have received on or before the day of the initial Borrowing the following,
each dated the Closing Date, in form and substance satisfactory to the Agent
and
in sufficient copies for each Bank:
(a) A
fully executed copy of this Agreement and of the Japan Local Currency
Addendum.
26
(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 Austin LLP, counsel for the Agent, given upon the
Agent’s express instructions, substantially in the form of Exhibit E
hereto.
In
addition, (i) the obligation of each Bank requesting Notes to make its initial
Advance is subject to the further condition precedent that the Agent shall
have
received, on or before the day of the initial Borrowing, the Notes dated the
Closing Date and payable to the order of such Bank, 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.
27
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, 2006
and as at June 30, 2007, 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, 2006, there has been no material adverse change in such condition
or operations.
28
(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.
29
(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 reasonable judgment of such
Borrower, desirable in the conduct of its business or the business of any
Subsidiary of such Borrower and not disadvantageous in any material respect
to
the Banks.
(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;
30
(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 written request of the Agent or any Bank, copies of all reports and
notices which such Borrower or any Subsidiary of such Borrower files under
ERISA
with the Internal Revenue Service or the PBGC or the U.S. Department of Labor
or
which such Borrower or any Subsidiary of such Borrower receives from any such
Person;
(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
▇▇▇▇▇’▇ and (B) within two (2) Business Days after such Borrower receives notice
from S&P or ▇▇▇▇▇’▇ 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 in writing with an indication
of
the reason for such request.
Financial
statements and other documents required to be furnished pursuant to Section
5.01(f)(i) or (ii) (to the extent any such financial statements or other
documents are included in reports or other materials otherwise filed with the
Securities and Exchange Commission) may be delivered electronically and if
so
delivered, shall be deemed to have been furnished on the date on which (i) the
applicable Borrower posts such financial statements or other documents, or
provides a link thereto, on such Borrower’s website on the Internet, or (ii)
such financial statements or other documents are posted on behalf of the
applicable Borrower on an Internet or intranet website, if any, to which each
Bank and the Agent have access (whether a commercial, third-party website or
whether sponsored by the Agent or the Securities and Exchange Commission’s
website located at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇); provided
that the applicable Borrower shall notify the Agent of the posting of any such
financial statements and other documents and provide to the Agent electronic
versions thereof.
31
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; exceptthat 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. 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, 2007. 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.
32
(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
30
days after written notice thereof shall have been received by such Borrower;
provided, that should CFSC or any of its Subsidiaries fail to observe any
such term, covenant or agreement referred to in subsections (i) or (ii) above,
such failure shall not be attributable to Caterpillar; or
(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 2006 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 2006 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
33
(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 2006 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 an officer or other authorized representative of such Borrower or Subsidiary
shall admit in writing such Borrower’s or Subsidiary’s inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by such Borrower or any of
its
Subsidiaries (other than CFSC and its Subsidiaries in the case of Caterpillar)
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for
it or for any substantial part of its property; or any such proceeding shall
be
instituted against such Borrower or any of its Subsidiaries (other than CFSC
and
its Subsidiaries in the case of Caterpillar) and either an order for relief
against such Borrower or Subsidiary is entered in such proceeding or such
proceeding is not dismissed within forty-five (45) days; or such Borrower or
any
of its Subsidiaries (other than CFSC and its Subsidiaries in the case of
Caterpillar) shall take any corporate action to authorize any of the actions
set
forth above in this subsection (e); 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;
34
(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.
35
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.
36
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 providedfurther 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.
37
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 ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Manager - Corporate Finance Services; if to CFSC or
CFC,
at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
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, ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank Loan Syndications,
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇, with a copy to Citicorp North America, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇; 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
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. 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 RESULTED FROM
SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
38
(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 written demand all reasonable costs and expenses of the Agent
and the Japan Local Currency Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Japan Local Currency Addendum, the Notes and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent and the Japan Local Currency
Agent with respect thereto and with respect to advising the Agent and the Japan
Local Currency Agent as to their rights and responsibilities under this
Agreement and the Japan Local Currency Addendum. 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 reasonably determine in
good
faith to be required to compensate such Bank for any additional losses, costs
or
expenses which it may reasonably incur as a result of such
payment. 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 create a rebuttable presumption 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.
39
(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, regulation, ordinance, or
judicial or governmental agency 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 20, 2007 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.
|
40
(ii) In
addition, each Bank may, with the written 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.
41
(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 forumnonconveniens. CFSC agrees to
act as agent for service of process for CFC.
42
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.
43
SECTION
8.14. Confidentiality. Each
of the Agent, the Japan Local Currency Agent, each Bank and each Japan Local
Currency Bank agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its affiliates
and to its and its affiliates’ respective managers, administrators, trustees,
partners, directors, officers, employees, agents, advisors and other
representatives (it being understood that the Persons to whom such disclosure
is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations
or
by any subpoena or similar legal process, (d) to any other party hereto, (e)
in
connection with the exercise of any remedies hereunder, under the Japan Local
Currency Addendum or under any other document related to or executed in
connection herewith or therewith or any action or proceeding relating to this
Agreement, the Japan Local Currency Addendum or any other document related
to or
executed in connection herewith or therewith or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
party (or its managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors and other representatives) to any swap or derivative
or similar transaction under which payments are to be made by reference to
the
Borrowers and their respective obligations, this Agreement or payments
hereunder, (iii) any rating agency, or (iv) the CUSIP Service Bureau or any
similar organization, (g) with the consent of the Borrowers or (h) to the extent
such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Agent, the Japan Local
Currency Agent, any Bank, any Japan Local Currency Bank or any of their
respective affiliates on a nonconfidential basis from a source other than the
Borrowers.
For
purposes of
this Section, “Information” means all information received from the
Borrowers or any of their respective Subsidiaries relating to the Borrowers
or
any of their respective Subsidiaries or any of their respective businesses,
other than any such information that is available to the Agent, the Japan Local
Currency Agent, any Bank and any Japan Local Currency Bank on a nonconfidential
basis prior to disclosure by the Borrowers or any of their respective
Subsidiaries, provided that, in the case of information received from the
Borrowers or any of their respective Subsidiaries after the date hereof, such
information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION
8.15. Termination
of
Prior Agreement. Citibank, as Agent under the Prior Agreement
(the "Existing Agent"), and each of the Banks party to the Prior
Agreement (the "Existing Banks"), hereby confirm that upon the Existing
Agent's receipt of all principal, accrued interest, fees, expenses, costs and
other amounts outstanding under the Prior Agreement, and the Existing Agent's
distribution of such amounts to the Existing Banks and any other parties
entitled thereto, the Prior Agreement and the commitments of the Existing Banks
thereunder shall be terminated, and all of the Borrowers' obligations to the
Existing Agent and the Existing Banks under the Prior Agreement shall be
terminated (other than contingent indemnity obligations and any other
obligations which by the terms of the Prior Agreement expressly survive the
termination of the Prior Agreement). Each of the Borrowers hereby
acknowledges and agrees to the termination of the Prior Agreement pursuant
to
this Section 8.15.
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.
44
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.
45
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.
46
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.
CATERPILLAR
INC.
By /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Treasurer
CATERPILLAR
FINANCIAL SERVICES
CORPORATION
By /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
CATERPILLAR
FINANCE
CORPORATION
By /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Director
47
CITIBANK,
N.A., as
Agent
By /s/
▇▇▇▇▇
▇▇▇
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice
President
48
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD.,
as Japan Local Currency Agent
as Japan Local Currency Agent
By /s/
Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
49
Banks
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|||
|
$175,000,000
|
$175,000,000
|
CITIBANK,
N.A.
|
By /s/
▇▇▇▇▇
▇▇▇
Name: ▇▇▇▇▇
▇▇▇
Title: Vice
President
Domestic
Lending
Office:
Citibank,
N.A.
▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇
▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Citibank,
N.A.
▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
50
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$131,250,000
|
$131,250,000
|
JPMORGAN
CHASE BANK, N.A.
|
By /s/
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Executive
Director
Domestic
Lending
Office:
JPMorgan
Chase
Bank, N.A.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
JPMorgan
Chase
Bank, N.A.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
51
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$131,250,000
|
$131,250,000
|
BANK
OF
AMERICA, N.A.
|
By /s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Senior
Vice President
Domestic
Lending
Office:
Bank
of America,
N.A.
▇▇▇▇
▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇,
▇▇
Attention:
▇▇▇▇
▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Bank
of America,
N.A.
▇▇▇▇
▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇,
▇▇
Attention:
▇▇▇▇
▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
52
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$106,250,000
|
$106,250,000
|
ABN
AMRO BANK
N.V.
|
By /s/
▇▇▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇
Title: Director
By /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Director
Domestic
Lending
Office:
ABN
AMRO Bank
N.V.
▇▇▇
▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Attention:
Credit Administration/Loan
Administration
|
Fax: (▇▇▇)
▇▇▇-▇▇▇▇/5152
with
copies
to:
ABN
AMRO Bank
N.V.
▇▇▇
▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Same
as
above.
53
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$112,500,000
|
$112,500,000
|
BARCLAYS
BANK
PLC
|
By /s/
▇▇▇▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇
Title: Director
Domestic
Lending
Office:
Barclays
Bank
PLC
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Barclays
Bank
PLC
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
54
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
$106,250,000
|
$106,250,000
|
SOCIÉTÉ
GÉNÉRALE
|
By /s/
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Director
Domestic
Lending
Office:
Société
Générale
▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Société
Générale
▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
55
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
| $62,500,000 | $62,500,000 | WESTLB AG, NEW YORK BRANCH |
By /s/
▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title: Managing
Director
By /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Manager
Domestic
Lending
Office:
WestLB
AG, New York
Branch
1211
Avenue of the
Americas, 24th
Floor
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
WestLB
AG, New York
Branch
1211
Avenue of the
Americas, 24th
Floor
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
56
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$75,000,000
|
ROYAL
BANK OF
CANADA
|
By /s/
▇▇▇▇▇▇▇▇
Majesty
Name: ▇▇▇▇▇▇▇▇
Majesty
Title: Authorized
Signatory
Domestic
Lending
Office:
Royal
Bank of
Canada, New York Branch
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: GLA
Administrator
Phone: (▇▇▇)
▇▇▇-▇▇▇▇/(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇/(▇▇▇) ▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Royal
Bank of
Canada, New York Branch
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: GLA
Administrator
Phone: (▇▇▇)
▇▇▇-▇▇▇▇/(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇/(▇▇▇) ▇▇▇-▇▇▇▇
57
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$50,000,000
|
$50,000,000
|
TORONTO
DOMINION (TEXAS) LLC
|
By /s/
▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Authorized
Signatory
Domestic
Lending
Office:
TD
Securities
Royal
Trust
Tower
▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
TD
Securities
Royal
Trust
Tower
▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
58
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$25,000,000
|
$25,000,000
|
AUSTRALIA
AND
NEW ZEALAND
BANKING
GROUP LIMITED
|
By /s/
▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Director
Domestic
Lending
Office:
Australia
and New
Zealand Banking Group Limited
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Australia
and New
Zealand Banking Group Limited
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
59
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$0
|
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD.
|
By /s/
▇▇▇▇▇▇▇▇
▇▇▇▇
Name: Masakazuu
Sato
Title: Deputy
General Manager
Domestic
Lending
Office:
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
60
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$75,000,000
|
LLOYDS
TSB
BANK plc
|
By /s/
▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title: Associate
Director
Corporate
Banking
USA
L007
By /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Director
Corporate
Banking
USA
C103
Domestic
Lending
Office:
Lloyds
TSB Bank
plc
1251
Avenue of the
Americas—39th
Floor
New
York,
NY 10020
Attention:
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Lloyds
TSB Bank
plc
1251
Avenue of the
Americas—39th
Floor
New
York,
NY 10020
Attention:
▇▇▇
▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
61
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$50,000,000
|
$50,000,000
|
STANDARD
CHARTERED BANK
|
By /s/
▇▇▇▇▇
Bershtern
Name: ▇▇▇▇▇
Bershtern
Title: Associate
Director
By /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Title: AVP/Credit
Documentation
Credit
Risk
Control
Standard
Chartered Bank N.Y.
Domestic
Lending
Office:
Standard
Chartered
Bank
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
Standard
Chartered
Bank
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
62
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$50,000,000
|
$50,000,000
|
COMMERZBANK
AG, NEW YORK AND GRAND CAYMAN
BRANCHES
|
By /s/
▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Assistant
Vice President
By /s/
Hajo
Neugartner
Name: Hajo
Neugartner
Title: Vice
President
Domestic
Lending
Office:
|
|
Commerzbank
AG, New York and
|
|
|
Grand
Cayman
Branches
|
Two
World Financial
Center
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
|
|
Commerzbank
AG, New York and
|
|
|
Grand
Cayman
Branches
|
Two
World Financial
Center
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
63
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$75,000,000
|
▇▇▇▇▇▇▇
STREET COMMITMENT CORPORATION
(Recourse only to assets of ▇▇▇▇▇▇▇
Street
Commitment Corporation)
|
|
|
|
By /s/
▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: Assistant
Vice President
Domestic
Lending
Office:
▇▇▇▇▇▇▇
Street
Commitment Corporation
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
▇▇▇▇▇▇▇
Street
Commitment Corporation
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
64
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$75,000,000
|
$75,000,000
|
▇▇▇▇▇▇▇
▇▇▇▇▇
BANK USA
|
By /s/
▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇
Title: Director
Domestic
Lending
Office:
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank
USA
▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank
USA
▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
65
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$37,500,000
|
$37,500,000
|
ING
BANK
N.V., DUBLIN BRANCH
|
By /s/
▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title: Manager
Domestic
Lending
Office:
ING
Bank N.V.,
Dublin Branch
49
St. Stephen’s Green
Dublin
2
Ireland
Attention:
▇▇▇▇▇
▇▇▇▇▇▇
Phone: ▇▇▇-▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
ING
Bank N.V.,
Dublin Branch
49
St. Stephen’s Green
Dublin
2
Ireland
Attention:
▇▇▇▇▇
▇▇▇▇▇▇
Phone: ▇▇▇-▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
66
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$50,000,000
|
$50,000,000
|
THE
BANK OF
NEW YORK
|
By /s/
▇▇▇▇▇▇ ▇.
Lenekos
Name: ▇▇▇▇▇▇
▇. Lenekos
Title: Vice
President
Domestic
Lending
Office:
The
Bank of New
York
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
D’▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
The
Bank of New
York
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
D’▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
67
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$37,500,000
|
$37,500,000
|
U.S.
BANK
NATIONAL ASSOCIATION
|
By /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Senior
Vice President
Domestic
Lending
Office:
U.S.
Bank National
Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
U.S.
Bank National
Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
68
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$25,000,000
|
$25,000,000
|
BANCA
NAZIONALE DEL LAVORO S.p.A., NEW YORK
BRANCH
|
By /s/
▇▇▇▇▇ ▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇ ▇▇▇▇▇
Title: Relationship
Manager
By /s/
▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
Title: General
Manager
Domestic
Lending
Office:
|
|
Banca
Nazionale Del Lavoro S.p.A., New York
Branch
|
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
|
|
Banca
Nazionale Del Lavoro S.p.A., New York
Branch
|
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
69
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$25,000,000
|
$25,000,000
|
KBC
BANK
N.V.
|
By /s/
Olivier
Smokoss
Name: Olivier
Smokoss
Title: Assistant
Vice President
By /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: First
Vice President
Domestic
Lending
Office:
KBC
Bank
N.V.
1177
Avenue of the
Americas
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
KBC
Bank
N.V.
1177
Avenue of the
Americas
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
70
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$25,000,000
|
$25,000,000
|
THE
NORTHERN
TRUST COMPANY
|
By /s/
▇▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇
Title: 2nd
Vice
President
Domestic
Lending
Office:
The
Northern Trust
Company
▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Eurocurrency
Lending Office:
The
Northern Trust
Company
▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
71
|
COMMITMENT
|
REVOLVING
CREDIT
COMMITMENT
|
|
|
$50,000,000
|
$50,000,000
|
WESTPAC
BANKING CORPORATION
|
By /s/
▇.
▇▇▇▇▇▇
Name: ▇.
▇▇▇▇▇▇
Title: Vice
President
Domestic
Lending
Office:
Westpac
Banking
Corporation
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇
Attention:
Phone:
Fax:
Eurocurrency
Lending Office:
Westpac
Banking
Corporation
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇
Attention:
Phone:
Fax:
|
TOTAL
COMMITMENT
|
TOTAL
REVOLVING CREDIT COMMITMENT:
|
| $1,625,000,000 | $1,550,000,000 |
72
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 20, 2007, 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
UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for the Bank
and such other banks. The Credit Agreement, among other things, (i)
provides for the making of advances (the “Advances”) by the Bank to the
Borrowers from time to time in an aggregate amount not to exceed at any time
outstanding such Bank’s Commitment (as defined in the Credit Agreement) at such
time, the indebtedness of the Borrower resulting from each such Advance to
the
Borrower being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
The
Borrower hereby
waives presentment, demand, protest and notice of any kind. No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
This
Promissory
Note shall be governed by, and construed in accordance with, the laws of the
State of New York, United States.
[CATERPILLAR
INC./CATERPILLAR
FINANCIAL
SERVICES
CORPORATION]
By
Title:
ADVANCES,
MATURITIES, AND PAYMENTS OF PRINCIPAL
|
Date
|
Type
of
Advance
|
Currency
and
Amount
of
Advance
|
Maturity
of
Advance
|
Amount
of
Principal
Paid
or
Prepaid
|
Unpaid
Principal
Balance
|
Notation
Made
By
|
NOTICE
OF
REVOLVING CREDIT BORROWING
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
▇▇▇
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇
Ladies
and
Gentlemen:
The
undersigned,
[Caterpillar Inc./Caterpillar Financial Services Corporation], refers to the
Credit Agreement (Five-Year Facility) dated as of September 20, 2007, 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
UFJ, Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for
said
Banks, and hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests a Revolving Credit
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Revolving Credit Borrowing (the “Proposed
Revolving Credit Borrowing”) as required by Section 2.02(a) of the Credit
Agreement:
(i) The
Business Day of the Proposed Revolving Credit Borrowing is __________,
200_.
(ii) The
Type of Revolving Credit Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances][Eurocurrency Rate Advances].
(iii) The
currency of the Proposed Revolving Credit Borrowing is ______.
(iv) The
aggregate amount of the Proposed Revolving Credit Borrowing is
$__________.
(v) The
Interest Period for each Advance made as part of the Proposed Revolving Credit
Borrowing is [30 days] [_____ month[s]].
(vi) The
proceeds of the Proposed Revolving Credit Borrowing should be remitted in same
day funds to [Account Number, Bank Name, Account Name, ______].
The
undersigned hereby certifies that the following statements are true on the
date
hereof, and will be true on the date of the Proposed Revolving Credit
Borrowing:
(A) the
representations and warranties contained in Section 4.01 [(excluding
those contained in the second sentence of subsection (e) and in subsection
(f)
thereof)]1 [(excluding those contained
in the second sentence of subsection (e) thereof)]2 [and Section 4.02]3
are correct, before and after giving effect to
the Proposed Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no
event has occurred and is continuing, or would result from such Proposed
Revolving Credit Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default [or would constitute an Event of Default
but for the requirement that notice be given or time elapse or both].2
Very
truly
yours,
[CATERPILLAR
INC./CATERPILLAR
FINANCIAL
SERVICES
CORPORATION]
By
Title:
1 To
be included in Notices of Revolving Credit Borrowing pursuant to Section
3.02,
unless Section 3.03 shall apply.
3 To
be included in Notices of Revolving Credit Borrowing from CFSC.
NOTICE
OF
JAPAN LOCAL CURRENCY BORROWING
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
as
Japan Local Currency Agent
Corporate
Banking
Division No. 3, Corporate Banking Group
▇-▇,
▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇.
▇▇▇ ▇▇▇▇▇▇
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
▇▇▇
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bank
Loan Syndications
Citicorp
North
America, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇
Ladies
and
Gentlemen:
The
undersigned,
Caterpillar Finance Corporation, refers to (1) the Credit Agreement (Five-Year
Facility) dated as of September 20, 2007, 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 UFJ, Ltd.,
as Japan Local Currency Agent, and Citibank, N.A., as Agent for said Banks,
and
(2) the Japan Local Currency Addendum dated as of September 20, 2007, among
the
undersigned, CFSC, the Japan Local Currency Banks party thereto, and The Bank
of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent (the
“Addendum”). The undersigned hereby gives you notice, irrevocably,
pursuant to Section 2.03A 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 [(excluding those contained
in the second sentence of subsection (e) thereof)]5 and Section 4.02 are correct, before
and after giving effect to the Proposed Borrowing and to the application of
the
proceeds therefrom, as though made on and as of such date; and
(B) no
event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, which constitutes
an Event of Default [or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both].7
Very
truly
yours,
CATERPILLAR
FINANCE
CORPORATION
By
Title:
5 To
be included in Notices of Borrowing pursuant to Section 3.03.
NOTICE
OF
ALLOCATION
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
▇▇▇
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇
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 20,
2007, 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 UFJ, Ltd., as Japan Local Currency Bank, and
Citibank, N.A., as Agent for said Banks, and hereby gives you notice, pursuant
to Section 2.01(b) of the Credit Agreement that the Borrowers request a
re-allocation of the Total Commitment, and in that connection sets forth below
the information relating to such re-allocation as required by Section
2.01(b) of the Credit Agreement:
(i) The
Business Day of the proposed re-allocation is ________, 200_.
(ii) The
Allocation for each of Caterpillar Inc. and Caterpillar Financial Services
Corporation after giving effect to such re-allocation is as
follows:
Borrower Allocation
Caterpillar
Inc.
$________
Caterpillar
Financial Services Corporation $________
Very
truly
yours,
CATERPILLAR
INC.
By:
Title:
NOTICE
OF
BANK ADDITION
Citibank,
N.A., as
Agent
for
the Banks
parties
to
the Credit Agreement
referred
to
below
▇▇▇
▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Bank
Loan Syndications
Citicorp
North
America, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇
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 20, 2007, 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 UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for said
Banks, and hereby give you notice, pursuant to Section 2.05(c) of the
Credit Agreement that the Borrowers request a Bank Addition, and in that
connection set forth below the information relating to such proposed Bank
Addition (the “Proposed Bank Addition”) as required by Section 2.05(c) of
the Credit Agreement:
(i) The
Business Day of the Proposed Bank Addition is ________, 200_.
(ii) The
name and address of the proposed Added Bank are as follows:
______________________________
______________________________
______________________________
(iii) The
amount of the Commitment of the proposed Added Bank, after giving effect to
the
Proposed Bank Addition, would be $__________.
Very
truly
yours,
CATERPILLAR
INC.
By:
______________________________
Title:
CATERPILLAR
FINANCIAL SERVICES
CORPORATION
By:
______________________________
Title:
CATERPILLAR
FINANCE
CORPORATION
By:
______________________________
Title:
ASSIGNMENT
AND ACCEPTANCE
Dated
_______________, 200_
Reference
is made
to the Credit Agreement (Five-Year Facility) dated as of September 20, 2007,
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 UFJ,
Ltd., as Japan Local Currency Agent, and Citibank, N.A., as Agent for the Banks
(the “Agent”). Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein with the same meaning.
_____________
(the
“Assignor”) and ___________________ (the “Assignee”) agree as
follows:
1. The
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, the percentage interest specified
on
Schedule 1 hereto in and to all of the Assignor’s rights and obligations
under the Credit Agreement as of the date hereof (after giving effect to any
other assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, but without giving effect to any other
assignments thereof also made on the date hereof), including, without
limitation, such percentage interest in (i) the Assignor’s Commitment and
Revolving Credit Commitment, which on the date hereof (after giving effect
to
any other assignments thereof made prior to the date hereof, whether or not
such
assignments have become effective, but without giving effect to any other
assignments thereof also made on the date hereof) are in the dollar amounts
specified as the Assignor’s Commitment and Revolving Credit Commitment on
Schedule 1 hereto, which Commitment is allocated between Caterpillar and
CFSC, the Assignor’s Allocated Commitment for each such Borrower as of the date
hereof being set forth on Schedule 1 hereto; [(ii) the Assignor’s 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 1
hereto; (ii)/(iii)]6 the aggregate
outstanding principal amount of Advances owing to the Assignor by each Borrower,
which on the date hereof (after giving effect to any other assignments thereof
made prior to the date hereof, whether or not such assignments have become
effective, but without giving effect to any other assignments thereof also
made
on the date hereof) is in the dollar amount specified as the aggregate
outstanding principal amount of Advances owing to the Assignor from such
Borrower on Schedule 1 hereto; and (iii)/(iv) the Notes, if any, held by
the Assignor.
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 held by
it immediately prior to the Effective Date, have the rights and obligations
under the Credit Agreement [and the Japan Local Currency Addendum]8 that have been assigned to it pursuant
to this
Assignment and Acceptance and (ii) the Assignor shall, to the extent provided
in
this Assignment and Acceptance, relinquish its rights and be released from
its
obligations under the Credit Agreement [and the Japan Local Currency
Addendum]9.
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 shall
make all payments under the Credit Agreement [,the Japan Local Currency
Addendum]11 and the Notes, if any, in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest, and Facility Fees with respect thereto) to
the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement [, the Japan Local
Currency Addendum]12 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.
12 Applicable
if Assignor is a Japan Local Currency Bank.
to
Assignment
and
Acceptance
Dated
__________,
200_
Section 1.
Percentage
Interest: __________%
Assignor’s
Commitment: $_________
Assignor’s
Revolving Credit
Commitment:
[Assignor's Japan
Local
CurrencyCommitment:] $_________
(a) Allocated
Commitment to
Caterpillar $_________
(b) Allocated
Commitment to
CFSC
$_________
Aggregate
Outstanding Principal
|
|
(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: __________,
200_
Section 4.
Domestic
Lending
Office ______________
Eurocurrency
Lending
Office ______________
|
|
[NAME
OF
ASSIGNOR]
|
By:___________________________
Title:
[NAME
OF
ASSIGNEE]
By:___________________________
Title:
Accepted
this _____
day
of
_________________, 200_
[NAME
OF AGENT], as
Agent
By:___________________________
Title:
[NAME
OF JAPAN
LOCAL CURRENCY AGENT], as Japan Local Currency Agent
By:___________________________
Title:
Agreed
to
this _____ day
of
_____________, 200_ 14
CATERPILLAR
INC.
By:___________________________
Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:___________________________
Title:
ASSUMPTION
AND ACCEPTANCE
Dated
_______________, 200_
Reference
is made
to the Credit Agreement (Five-Year Facility) dated as of September 20, 2007,
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 UFJ,
Ltd., as Japan Local Currency Bank and Citibank, N.A., as Agent for the Banks
(the “Agent”). Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein with the same meaning.
The
Borrowers and
___________________ (the “Added Bank”) agree as follows:
1. The
Borrowers have requested the Added Bank to [become a Bank under the Credit
Agreement and to accept and make a Commitment and Revolving Credit Commitment
[and Japan Local Currency Commitment] under the Credit Agreement in the amounts
set forth on Schedule 1 hereto]15
[increase its Commitment and Revolving Credit Commitment [and Japan Local
Currency Commitment] under the Credit Agreement to the amounts set forth on
Schedule 1 hereto]16 and the
Added Bank has agreed to so [become a Bank and accept and make a Commitment
and
Revolving Credit Commitment [and Japan Local Currency Commitment] under the
Credit Agreement in such amounts]17
[increase its Commitment and Revolving Credit Commitment [and Japan Local
Currency Commitment] under the Credit Agreement to such amounts].18 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”).
16 To
be used if the Added Bank is already a Bank under the Credit Agreement.
17 To
be used if the Added Bank is not already a Bank under the Credit
Agreement.
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.
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: ________,
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:
|
|
[NAME
OF
ADDED BANK]
|
By:___________________________
Title:
Accepted
this _____
day
of
_________________, 200_
[NAME
OF
AGENT]
By:___________________________
Title:
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
20, 2007,
among
Caterpillar
Inc.,
Caterpillar
Financial
Services
Corporation,
Caterpillar
Finance
Corporation,
said
Banks,
Citibank, N.A., as Agent,
and
The Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
as
Japan Local Currency Agent
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
20, 2007 (the “Credit Agreement”), among the Borrower, [names of other Borrowers
under the Credit Agreement], the Banks parties thereto, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank, N.A.,
as Agent for said Banks. 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 and its Notes.
2. The
execution, delivery and performance by the Borrower of the Credit Agreement
[,
the Japan Local Currency Addendum]21 and the Notes to be executed by it
are within the 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 and the Notes
to be executed by it.
4. The
Credit Agreement [, the Japan Local Currency Addendum]23 and its Notes have been duly executed
and
delivered by a duly authorized officer of the Borrower. 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.
23 For
CFSC opinion.
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,
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
UFJ,
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 20, 2007 (“Credit
Agreement”), among the Borrowers, the Banks party thereto, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, and Citibank, as
Agent for the Banks. 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
opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel for Caterpillar Inc.
(“Caterpillar), dated as of the date hereof.
(3) The
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, internal counsel for Caterpillar Financial
Services Corporation (“CFSC”), dated as of the date hereof.
In
our examination
of the documents referred to above, we have assumed the authenticity of all
such
documents submitted to us as originals, the genuineness of all signatures,
the
due authority of the parties executing such documents, and the conformity to
the
originals of all such documents submitted to us as copies. We have
also assumed that each of the Banks, the 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 opinion expressed below involves conclusions as to the matters set forth
in
the opinions of counsel referred to in items (2) and (3) above, we have assumed
without independent investigation the correctness of the matters set forth
therein.
Based
upon the
foregoing examination of documents and assumptions, and subject to the
qualifications contained herein, and upon such other investigation as we have
deemed necessary, we are of the opinion that (a) the Credit Agreement is, and
the Notes executed by each of Caterpillar and CFSC and delivered on or prior
to
the date hereof are, the legal, valid and binding obligations of each of
Caterpillar and CFSC, respectively, enforceable against such Borrower in
accordance with their respective terms; and (b) the Japan Local Currency
Addendum is the legal, valid and binding obligation of CFSC, enforceable against
CFSC in accordance with its terms.
Our
opinion above
is subject to the following qualifications:
(a) Our
opinion above is subject to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing. In applying such principles, a court, among
other things, might not allow a creditor to accelerate maturity of a debt upon
the occurrence of a default deemed immaterial or might decline to order a debtor
to perform covenants. Such principles applied by a court include a
requirement that a creditor act with reasonableness and in good
faith.
(b) Our
opinion above is also subject (i) to the effect of any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar law
affecting creditors’ rights generally and (ii) to the effect of any federal or
state law, rule or regulation (including any federal or state securities law,
rule or regulation) or public policy, to the extent that such law, rule,
regulation or public policy limits rights to indemnification.
(c)
Our opinion above is limited to the law of the State of New York and the federal
law of the United States, and we do not express any opinion herein concerning
any other law. Without limiting the generality of the foregoing, we
express no opinion as to (i) the effect of the law of any jurisdiction, other
than the State of New York, wherein any Bank may be located or wherein
enforcement of the Credit Agreement, the 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 or 8.05 of the Credit
Agreement, or any comparable provisions under the Japan Local Currency Addendum,
insofar as they provide that any Bank purchasing a participation from another
Bank pursuant thereto may exercise set-off or similar rights with respect to
such participation or that any affiliate of a Bank may exercise set-off or
similar rights with respect to such Bank’s claims under the Credit Agreement,
the Japan Local Currency Addendum or the Notes; (ii)Sections 2.12(c) or 8.04(c)
of the Credit Agreement or any comparable provisions of the Japan Local Currency
Addendum, to the extent that any such section or provision may be construed
as
requiring indemnification with respect to a claim, damage, liability or expense
incurred as a result of any violation of law by a Bank or the Agent; (iii)
the
first sentence of Section 8.08(b) of the Credit Agreement, or any comparable
provisions of the Japan Local Currency Addendum, insofar as any such provision
relates to the subject matter jurisdiction of the United States District Court
to adjudicate any controversy related to the Credit Agreement; or (iv) Sections
8.10 or 8.12, the last sentence of Section 8.08(b) of the Credit Agreement
or
any comparable provisions of the Japan Local Currency Addendum.
(f) We
express no opinion as to the legality, validity or enforceability of any of
the
Credit Agreement or the Japan Local Currency Addendum with regard to or as
against Caterpillar Finance Corporation (“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
opinion expressed herein is being delivered to you as of the date hereof in
connection with the transactions described hereinabove and is solely for your
benefit in connection with the transactions described hereinabove and may not
be
relied on in any manner for any other purpose and may not be relied on for
any
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 opinion expressed herein is based solely on factual
matters in existence as of the date hereof and laws and regulations in effect
on
the date hereof, and we assume no obligation to revise or supplement this
opinion letter to reflect any matters which may hereafter come to our attention,
or should such factual matters change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or
otherwise.
Very
truly
yours,
to
the
Opinion
of
Sidley
Austin LLP
Banks
Citibank,
N.A.
JPMorgan
Chase
Bank, N.A.
Bank
of America,
N.A.
ABN
AMRO Bank
N.V.
Barclays
Bank
PLC
Société
Générale
Royal
Bank of
Canada
WestLB
AG, New York
Branch
Toronto
Dominion
(Texas) LLC
Standard
Chartered
Bank
Australia
and New
Zealand Banking Group Limited
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
Lloyds
TSB Bank
plc
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank
USA
▇▇▇▇▇▇▇
Street
Commitment Corporation
Commerzbank
AG, New
York and Grand Cayman Branches
ING
Bank N.V.,
Dublin Branch
U.S.
Bank National
Association
Banca
Nazionale del
Lavoro S.p.A., New York Branch
KBC
Bank
N.V.
The
Bank of New
York
The
Northern Trust
Company
Westpac
Banking
Corporation
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 20, 2007, 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 UFJ, Ltd., as Japan Local Currency Agent and
Citibank, N.A., as agent for the Banks. Capitalized terms used and
not otherwise defined herein shall have the meanings attributed to such terms
in
the Agreement.
THE
UNDERSIGNED
HEREBY CERTIFIES THAT:
1. I
am the duly elected ______________ of Caterpillar Inc. (the
“Borrower”).
2. I
have reviewed the terms of the Agreement and I have made, or have caused to
be
made under my supervision, a detailed review of the transactions and conditions
of the Borrower and its Subsidiaries during the accounting period covered by
the
attached financial statements.
3. The
examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes an Event of
Default with respect to the Borrower during or at the end of the accounting
period covered by the attached financial statements or as of the date
hereof.
4. As
required pursuant to Section 5.03 of the Agreement, the Borrower’s
Consolidated Net Worth, as of the end of the accounting period covered by the
attached financial statements, is not less than an amount equal to 75% of the
Borrower’s Consolidated Net Worth as of the end of the last fiscal year, as
shown below.
|
|
a.
|
Consolidated
Net Worth
|
$__________
|
b. 75%
of Consolidated
Net
Worth as of the
end of
the
last fiscal
year $__________
The
foregoing certifications and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _____ day of
__________, 200_.
CATERPILLAR
INC.
By:___________________________
Name:
Title:
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 20, 2007, 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 UFJ, Ltd., as Japan Local Currency Agent,
Citibank, N.A., as agent for the Banks. Capitalized terms used and
not otherwise defined herein shall have the meanings attributed to such terms
in
the Agreement.
THE
UNDERSIGNED
HEREBY CERTIFIES THAT:
1. I
am the duly elected ______________ of Caterpillar Financial Services Corporation
(the “Borrower”).
2. I
have reviewed the terms of the Agreement and I have made, or have caused to
be
made under my supervision, a detailed review of the transactions and conditions
of the Borrower and its Subsidiaries during the accounting period covered by
the
attached financial statements.
3. The
examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes an Event of
Default with respect to the Borrower during or at the end of the accounting
period covered by the attached financial statements or as of the date
hereof.
4. As
required pursuant to Section 5.04(a) of the Agreement, the Borrower’s
Leverage Ratio as of the end of the accounting period covered by the attached
financial statements, is not greater than 8.5 to 1, as shown below.
(a) CFSC
Consolidated
Debt
$__________
(b) CFSC’s
Consolidated Net
Worth
$__________
(i) Stockholders’
equity
$__________
(ii) Accumulated
Other Comprehensive
Income $__________
(c) Leverage
Ratio
(a÷b) $__________
5. As
required pursuant to Section 5.04(b) of the Agreement, the ratio of (1)
the Borrower’s net earnings before provision for income taxes and Interest
Expense to (2) Interest Expense, computed as of the end of the accounting period
covered by the attached financial statements, is not less than 1.15 to 1, as
shown below.
a. Net
earnings before
income taxes and
Interest
Expense $__________
b. Interest
Expense
$__________
c. Ratio
of net earnings
before
income taxes
and
Interest
Expense
to
Interest
Expenses
(a÷b) $__________
The
foregoing
certifications and the financial statements delivered with this Certificate
in
support hereof, are made and delivered this _____ day of __________,
200_.
|
|
CATERPILLAR
FINANCIAL SERVICES CORPORATION
|
By:___________________________
Name:
Title:
CATERPILLAR
FINANCE CORPORATION
JAPAN
LOCAL
CURRENCY ADDENDUM
JAPAN
LOCAL
CURRENCY ADDENDUM, dated as of September 20, 2007, to the Credit Agreement
(as
defined below), among Caterpillar Financial Services Corporation, Caterpillar
Finance Corporation, the Japan Local Currency Banks (as defined below),
Citibank, N.A., as Agent, and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan
Local Currency Agent.
ARTICLE
I
Definitions
SECTION
1.01. Defined Terms. As used in this Addendum, the
following terms shall have the meanings specified below:
“Credit
Agreement” means the Credit Agreement (Five-Year Facility), dated as of
September 20, 2007, among Caterpillar Inc., Caterpillar Financial Services
Corporation, Caterpillar Finance Corporation, the financial institutions from
time to time party thereto as Banks, Citibank, N.A., as Agent, and The Bank
of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent, as the same may
be
amended, waived, modified or restated from time to time.
“Japan
Local
Currency Advance” means any Advance, denominated in Japanese Yen, made to
CFC pursuant to Sections 2.03 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 ▇▇▇, ▇-▇▇-▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ 158-0097, Japan, Attention: Managing Director
(Facsimile No. ▇▇▇-▇▇▇▇-▇▇▇▇, with a copy to CFSC at its address and
telecopy number referenced in Section 8.02 of the Credit
Agreement;
(b) if
to CFSC, at its address and telecopy number referenced in Section 8.02 of
the Credit Agreement;
(c) if
to the Japan Local Currency Agent, at The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
Corporate Banking Division No. 3, Corporate Banking Group, ▇-▇, ▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇. ▇▇▇ ▇▇▇▇▇▇
(Telecopy No.: ▇▇-▇▇▇▇-▇▇▇▇ / ▇▇-▇-▇▇▇▇-▇▇▇▇) 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, ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank Loan Syndications,
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇, with a copy to Citicorp North America, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇▇;
or
as to each party, at such other address as shall be designated by such party
in
a written notice to the other parties. All such notices and
communications shall be deemed to have been given three (3) Business Days after
deposit in the mail (registered or certified, with postage prepaid and properly
addressed), when delivered to the telegraph company, upon receipt of a telex
or
telecopy or when delivered in person or by courier service, except that notices
and communications to the Japan Local Currency Agent pursuant to Article
II or V hereof or Article II of the Credit Agreement shall not
be effective until received by the Japan Local Currency Agent.
SECTION
4.04. Ratification of Guaranty. By its execution of
this Addendum, CFSC ratifies and confirms its guaranty contained in Article
IX of the Credit Agreement with respect to the Japan Local Currency Advances
made pursuant to this Addendum which Guaranty remains in full force and
effect.
SECTION
4.05. Sharing of Payments, Etc. If any Japan Local
Currency Bank shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of the Japan
Local Currency Advances made by it (other than pursuant to Section
2.02(c), 2.05(d), 2.10, 2.12 or 8.04 of the
Credit Agreement) in excess of its ratable share of payments on account of
the
Japan Local Currency Advances obtained by all the Japan Local Currency Banks,
such Japan Local Currency Bank shall forthwith purchase from the other Japan
Local Currency Banks such participations in the Japan Local Currency Advances
made by them as shall be necessary to cause such purchasing Japan Local Currency
Bank to share the excess payment ratably with each of them, provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Japan Local Currency Bank, such purchase from
each other Japan Local Currency Bank shall be rescinded and each such other
Japan Local Currency Bank shall repay to the purchasing Japan Local Currency
Bank the purchase price to the extent of such recovery together with an amount
equal to such other Japan Local Currency Bank’s ratable share (according to the
proportion of (i) the amount of such other Japan Local Currency Bank’s required
repayment to (ii) the total amount so recovered from the purchasing Japan Local
Currency Bank) of any interest or other amount paid or payable by the purchasing
Japan Local Currency Bank in respect of the total amount so
recovered. CFC agrees that any Japan Local Currency Bank so
purchasing a participation from another Japan Local Currency Bank pursuant
to
this Section 4.05 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to
such
participation as fully as if such Japan Local Currency Bank were the direct
creditor of CFC in the amount of such participation.
SECTION
4.06. Applicable Law. THIS ADDENDUM SHALL BE
GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION
4.07 Execution in Counterparts. This Addendum may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which taken together shall constitute one and the same
agreement.
ARTICLE
V
The
Japan
Local Currency Agent
SECTION
5.01 Appointment; Nature of Relationship. The Bank
of Tokyo-Mitsubishi UFJ, Ltd. is appointed by the Japan Local Currency Banks
as
the Japan Local Currency Agent hereunder and under the Credit Agreement, and
each of the Japan Local Currency Banks irrevocably authorizes the Japan Local
Currency Agent to act as the contractual representative of such Japan Local
Currency Bank with the rights and duties expressly set forth herein and in
the
Credit Agreement applicable to the Japan Local Currency Agent. The
Japan Local Currency Agent agrees to act as such contractual representative
upon
the express conditions contained in this Article
V. Notwithstanding the use of the defined term “Japan Local
Currency Agent,” it is expressly understood and agreed that the Japan Local
Currency Agent shall not have any fiduciary responsibilities to any Japan Local
Currency Bank or other Bank by reason of this Addendum and that the
Japan Local Currency Agent is merely acting as the representative of the Japan
Local Currency Banks with only those duties as are expressly set forth in this
Addendum and the Credit Agreement. In its capacity as the Japan Local
Currency Banks’ contractual representative, the Japan Local Currency Agent (i)
does not assume any fiduciary duties to any of the Banks, (ii) is a
“representative” of the Japan Local Currency Banks within the meaning of Section
9-102 of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Addendum and the Credit Agreement. Each of the Japan
Local Currency Banks agrees to assert no claim against the Japan Local Currency
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Bank waives.
SECTION
5.02 Powers. The Japan Local Currency Agent shall
have and may exercise such powers under this Addendum and the Credit Agreement
as are specifically delegated to the Japan Local Currency Agent by the terms
of
each thereof, together with such powers as are reasonably incidental
thereto. The Japan Local Currency Agent shall have neither any
implied duties or fiduciary duties to the Japan Local Currency Banks or the
Banks, nor any obligation to the Japan Local Currency Banks or the Banks to
take
any action hereunder or under the Credit Agreement except any action
specifically provided by this Addendum or the Credit Agreement required to
be
taken by the Japan Local Currency Agent.
SECTION
5.03 General Immunity. Neither the Japan Local
Currency Agent nor any of its respective directors, officers, agents or
employees shall be liable to any of the Borrowers or any Bank for any action
taken or omitted to be taken by it or them hereunder or under the Credit
Agreement or in connection herewith or therewith except to the extent such
action or inaction is found in a final non-appealable judgment by a court of
competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.
SECTION
5.04 No Responsibility for Advances, Creditworthiness, Collateral,
Recitals, Etc. [Intentionally Omitted. See Section
7.02 of the Credit Agreement for these provisions.]
SECTION
5.05 Action on Instructions of Japan Local Currency
Banks. The Japan Local Currency Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under the
Credit Agreement in accordance with written instructions signed by Majority
Japan Local Currency Banks (except with respect to actions that require the
consent of all of the Banks as provided in the Credit Agreement, including,
without limitation, Section 8.01 thereof), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of
the
Japan Local Currency Banks. The Japan Local Currency Agent shall be
fully justified in failing or refusing to take any action hereunder and under
the Credit Agreement unless it shall first be indemnified to its satisfaction
by
the Japan Local Currency Banks pro rata against any and all liability, cost
and
expense that it may incur by reason of taking or continuing to take any such
action.
SECTION
5.06 Employment of Agents and Counsel. The Japan
Local Currency Agent may execute any of its duties hereunder and under the
Credit Agreement by or through employees, agents, and attorneys-in-fact, and
shall not be answerable to the Banks or the Japan Local Currency Banks, except
as to money or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Japan Local Currency Agent shall be
entitled to advice of counsel concerning the contractual arrangement among
the
Japan Local Currency Agent and the Japan Local Currency Banks, as the case
may
be, and all matters pertaining to its duties hereunder and under the Credit
Agreement.
SECTION
5.07 Reliance on Documents; Counsel. [Intentionally
Omitted. See Section 7.02 of the Credit Agreement for these
provisions.]
SECTION
5.08 Other Transactions. The Japan Local Currency
Agent may accept deposits from, lend money to, and generally engage in any
kind
of trust, debt, equity or other transaction, in addition to those contemplated
by this Addendum or the Credit Agreement, with CFSC, CFC or any of their
respective Subsidiaries in which the Japan Local Currency Agent is not
prohibited hereby from engaging with any other Person.
SECTION
5.09
Bank Credit Decision. [Intentionally Omitted. See
Section 7.04 of the Credit Agreement for these provisions.]
SECTION
5.10 Successor Japan Local Currency Agent. The
Japan Local Currency Agent (i) may resign at any time by giving written notice
thereof to the Agent, the Japan Local Currency Banks and the Borrowers, and
may
appoint one of its affiliates as successor Japan Local Currency Agent and (ii)
may be removed at any time with or without cause by the Majority Japan Local
Currency Banks. Upon any such resignation or removal, the Majority
Japan Local Currency Banks, with the consent of the Agent, shall have the right
to appoint (unless, in the case of the resignation of the Japan Local Currency
Agent, the resigning Japan Local Currency Agent has appointed one of its
affiliates as successor Japan Local Currency Agent), on behalf of the Borrowers
and the Japan Local Currency Banks, a successor Japan Local Currency
Agent. If no successor Japan Local Currency Agent shall have been so
appointed and shall have accepted such appointment within thirty days after
the
retiring Japan Local Currency Agent’s giving notice of resignation or the
Majority Japan Local Currency Banks’ removal of the retiring Japan Local
Currency Agent, then the retiring Japan Local Currency Agent may appoint, on
behalf of the Borrowers and the Japan Local Currency Banks, a successor Japan
Local Currency Agent, which need not be one of its
affiliates. Notwithstanding anything herein to the contrary, so long
as no Event of Default, or event which would constitute an Event of Default
but
for the requirement that notice be given, time elapse or both, has occurred
and
is continuing, each such successor Japan Local Currency Agent shall be subject
to written approval by CFSC and CFC, which approval shall not be unreasonably
withheld. Such successor Japan Local Currency Agent shall be a
commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as the Japan
Local Currency Agent hereunder by a successor Japan Local Currency Agent, such
successor Japan Local Currency Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Japan
Local Currency Agent, and the retiring Japan Local Currency Agent shall be
discharged from its duties and obligations hereunder and under the Credit
Agreement. After any retiring Japan Local Currency Agent’s
resignation hereunder as Japan Local Currency Agent, the provisions of this
Article V shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Japan
Local Currency Agent hereunder and under the Credit Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as a deed by their duly authorized officers, all as of the date and
year first above written.
CATERPILLAR
FINANCE
CORPORATION
By:
Name:
Title:
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:
Name:
Title:
CITIBANK,
N.A., as
the Agent
By:___________________________
Name:
Title:
|
|
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency
Agent
|
By:___________________________
Name:
Title:
THE
BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as the Japan Local Currency Bank
By:___________________________
Name:
Title:
SCHEDULE
I
to
Japan Local
Currency Addendum
Japan
Local
Currency Banks
Japan
Local
Currency Commitments
Total
Japan Local
Currency Commitment
Applicable
Lending
Office
|
Japan
Local Currency Bank Name
|
Japan
Local Currency Commitment
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
US
$75,000,000
|
|
Total
Japan Local Currency Commitment:
|
US
$75,000,000
|
|
Japan
Local Currency Bank Name
|
Applicable
Japan Local Currency Lending Office
|
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.
|
The
Bank of
Tokyo-Mitsubishi UFJ, Ltd.,
Corporate
Banking Division No. 3, Corporate Banking Group
▇-▇,
▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇.
▇▇▇ ▇▇▇▇▇▇
(Telephone
No.: ▇▇-▇▇▇▇-▇▇▇▇ / ▇▇-▇-▇▇▇▇-▇▇▇▇)
(Facsimile
No.: ▇▇-▇▇▇▇-▇▇▇▇ /
▇▇-▇-▇▇▇▇-▇▇▇▇)
|
SCHEDULE
II
to
Japan Local
Currency Addendum
MODIFICATIONS
1. Business
Day Definition:
“Business
Day”: Same as Credit Agreement.
|
2.
|
Interest
Payment Dates: Same as Credit Agreement. (See
Section 2.07 of Credit
Agreement).
|
|
3.
|
Interest
Periods: Same as Credit Agreement. (See
definition of “Interest Period”, Section 1.01, and Section
2.07(d) of Credit Agreement).
|
|
4.
|
Interest
Rates:
|
Each
Japan Local
Currency Advance that is a TIBO Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at a rate per annum equal to
the
sum of (i) the TIBO Rate for such Japan Local Currency Advance for such Interest
Period plus (ii) the Applicable TIBOR Margin as in effect from time to
time during such Interest Period; provided, however, after the
occurrence and during the continuance of an Event of Default or an event that
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both, the provisions of Section 2.07(d) of the
Credit Agreement shall be applicable. Each Japan Local Currency
Advance that is a Japan Base Rate Advance shall bear interest during any
Interest Period at a per annum rate equal to the Japan Base Rate in effect
from
time to time during such Interest Period. The terms of Section 2.07
and the other provisions of the Credit Agreement shall otherwise govern the
accrual and payment of interest on Japan Local Currency Advances.
|
5.
|
Other:
|
Additional
Conditions Precedent: None
Termination
Date
for Addendum: The “Termination Date” under the Credit
Agreement.
Prepayment
Notices: CFC shall be permitted to prepay a Japan Local Currency
Advance subject to the provisions of Section 8.04(b) of the Credit
Agreement, on any Business Day, provided, in the case of any prepayment, notice
thereof is given to the Japan Local Currency Agent not later than 10:00 a.m.
(Tokyo time) at least three (3) Business Days prior to the date of such
prepayment.
SCHEDULE
III
to
Japan Local
Currency Addendum
OTHER
PROVISIONS
|
1.
|
Borrowing
Procedures:
|
(a) Notice
of Japan Local Currency Borrowing shall be given by CFC to the Japan Local
Currency Agent not later than 10:00 a.m. (Tokyo time) on the third Business
Day
prior to the date of the proposed Japan Local Currency Borrowing (or not later
than 10:00 a.m. (Tokyo time) on the Business Day of the proposed Japan Local
Currency Borrowing if such proposed Japan Local Currency Borrowing is requested
on a same-day basis), and the Japan Local Currency Agent shall give
each Japan Local Currency Bank prompt notice thereof in accordance with
Section 4.03.
(b) Each
Notice of Japan Local Currency Borrowing shall be addressed to the Japan Local
Currency Agent at its address set forth in Section 4.03 and shall specify
the bank account to which the Japan Local Currency Advances are to be
made.
|
2.
|
Funding
Arrangements:
|
Minimum
amounts/increments for Japan Local Currency Borrowings, repayments and
prepayments:
Same
as Credit
Agreement.
|
3.
|
Promissory
Notes: None
required.
|