Exhibit 4.7
TRI PARTY AGREEMENT
TRI PARTY AGREEMENT (this "Instrument"), dated as of August
23,1994 (the "Effective Date"), by and among Caterpillar Financial
Services Corporation, a Delaware corporation (the "Issuer"),
BankAmerica National Trust Company, a national banking association
(the "Successor Trustee"), and Morgan Guaranty Trust Company of New
York, a New York banking corporation (the " Resigning Trustee").
Terms not otherwise defined herein shall have the meanings
ascribed to them in the Indenture dated as of April 15, 1985, as
supplemented by the First Supplemental Indenture, dated as of May
22, 1986, the Second Supplemental Indenture, dated as of March 15,
1987, the Third Supplemental Indenture, dated as of October 2,
1989, and the Fourth Supplemental Indenture, dated as of October 1,
1990 (the "Indenture"), between the Issuer and the Resigning
Trustee
WITNESSETH:
WHEREAS, the Issuer and the Resigning Trustee entered into
the Indenture to provide for the issuance by the Issuer of Medium
Term Notes in the original aggregate principal amount of
$100,000,000 (the "Securities");
WHEREAS, the Issuer and the Resigning Trustee entered into
a Determination Agency Agreement, dated as of August 27, 1993 (the
"Determination Agency Agreement");
WHEREAS, the Issuer and the Resigning Trustee entered into an
Issuing and Calculation Agent Agreement, dated, as of October
29,1990 (the "Issuing and Calculation Agent Agreement");
WHEREAS, the Issuer and the Resigning Trustee entered into an
Exchange Rate Agency Agreement, dated as of October 29, 1990 (the
"Exchange Rate Agency Agreement");
WHEREAS, the Resigning Trustee has been acting as trustee
under the Indenture and in certain agency capacities pursuant to
the Determination Agency Agreement, Issuing and Calculation Agent
Agreement and Exchange Rate Agency Agreement (together, the "Agency
Agreements");
WHEREAS, the Resigning Trustee wishes to resign as trustee,
in accordance with the terms of the Indenture, and as agent in
accordance with the terms of the Agency Agreements effective upon
execution of this Instrument by all the parties hereto;
WHEREAS, Section 610 of the Indenture provides that the
Trustee may resign and be discharged of the trust created by the
Indenture by giving written notice thereof to the Issuer;
WHEREAS, Section 7 of the Determination Agency Agreement,
Section 11 of the Issuing and Calculation Agent Agreement and
Section 6 of the Exchange Rate Agency Agreement provide,
respectively, for the resignation of the agent thereunder upon the
giving of written notice thereof to the Issuer.
WHEREAS, the Resigning Trustee hereby gives notice to the
Issuer of its resignation as trustee under the Indenture and agent
under the Agency Agreements to become effective upon the acceptance
of appointment by a successor trustee and successor agent;
WHEREAS, Section 610 of the Indenture further provides that
in case the Trustee shall resign, the Issuer shall appoint a
successor trustee and the successor trustee shall be eligible under
the provisions of Section 611 of the Indenture;
WHEREAS, Section 611 of the Indenture, Section 7 of the
Determination Agency Agreement, Section 11 of the Issuing and
Calculation Agent Agreement and Section 6 of the Exchange Rate
Agency Agreement provide that any successor trustee or successor
agent appointed under the Indenture or the Agency Agreements, as
the case may be, shall execute, acknowledge and deliver to the
Issuer and to the Resigning Trustee an instrument accepting such
appointment, and thereupon the resignation of the Resigning Trustee
shall become effective and the Successor Trustee without any
further act, deed or conveyance, shall become fully vested with all
the rights, powers, trusts, duties and responsibilities of the
Resigning Trustee under the Indenture and the Agency Agreements;
and
WHEREAS, this Instrument is intended to constitute such
instrument:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Issuer, the Resigning Trustee and
the Successor Trustee hereby severally covenant and agree as
follows:
THE RESIGNING TRUSTEE
1. Effective as of the close of business on the Effective
Date, the Resigning Trustee hereby assigns, transfers and delivers
to Successor Trustee all of its rights, powers, trusts and duties
in and to the trust under the Indenture and all of the rights,
powers, trusts and duties which the Resigning Trustee now holds by
virtue of the Indenture and pays over to Successor Trustee any and
all property and moneys held by the Resigning Trustee, as trustee.
2. Effective as of the close of business on the Effective
Date, the Resigning Trustee hereby resigns as agent under the
Agency Agreements and herewith delivers unto the Successor Trustee
all of the relevant records or documents maintained by the
Resigning Trustee thereunder.
3. The Resigning Trustee agrees to execute and deliver such
further instruments and shall take such further actions as the
Successor Trustee or the Issuer, may reasonably request and at
their expense, so as to more fully and certainly vest and confirm
in the Successor Trustee all the rights, powers, trusts and duties
under the Indenture hereby assigned, transferred, delivered and
confirmed to the Successor Trustee.
4. The Resigning Trustee agrees to execute and deliver such
further instruments and shall take such further actions as the
Successor Trustee or the Issuer may reasonably request, at their
expense, as to more fully effectuate the assumption by the
Successor Trustee of its duties and obligations under the Agency
Agreements.
5. The Resigning Trustee hereby represents and warrants to the
Successor Trustee (i) no Event of Default or event which, with the
giving of notice or lapse of time, or both, would constitute an
Event of Default under the Indenture has been intentionally waived
by the Resigning Trustee or has been waived in writing delivered to
the Resigning Trustee by the holders of the percentage in aggregate
principal amount of the Securities required by the Indenture to
effect any such waiver and (ii) there is no action, suit or
proceeding pending or, to the best of the knowledge of any officer
of the Resigning Trustee assigned to administer its duties under
the Indenture, threatened against the Resigning Trustee before any
court or governmental authority arising out of any action or
omission by the Resigning Trustee under the Indenture.
THE ISSUER
1. Effective as of the close of business on the Effective
Date, the Issuer hereby accepts the resignation of the Resigning
Trustee and appoints the Successor Trustee as successor in trust
under the Indenture and as successor agent under the Agency
Agreements and assigns, transfers and delivers to the Successor
Trustee all of the rights, titles, interests, capacities,
privileges, duties and responsibilities of the trustee and agent
under the Indenture and Agency Agreements.
2. As of the close of business on the Effective Date, the
Issuer hereby restates and reaffirms to the Successor Trustee each
of the representations and warranties made by the Issuer under the
Indenture and Agency Agreements.
3. The Issuer hereby accepts the resignation of the Resigning
Trustee and effective at the close of business on the Effective
Date, the Issuer hereby appoints the Successor Trustee as agent of
the Issuer in the Borough of Manhattan, the City of New York, State
of New York, where notices and demands to or upon the Issuer in
respect of the Securities or the Indenture may be served, or the
Securities may be presented or surrendered for payment; and where
the Securities may be surrendered for exchange or registration of
transfer.
4. The Issuer hereby represents and warrants 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 under the Indenture.
5. The Issuer agrees to execute and deliver such further
instruments and to take such further action as the Successor
Trustee may reasonably request so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, titles,
interests, capacities, privileges, duties and responsibilities
hereby assigned, transferred, delivered and confirmed to the
Successor Trustee under the Indenture and Agency Agreements
including, without limitation, providing notice to, and obtaining
the consent of, the appropriate parties.
THE SUCCESSOR TRUSTEE
1. Effective as of the close of business on the Effective
Date, the Successor Trustee hereby accepts its appointment as
successor trustee under the Indenture and shall be vested with all
the rights, titles, interests, capacities, privileges, duties and
responsibilities of the trustee under the Indenture.
2. Effective as of the close of business on the Effective
Date, the Successor Trustee hereby accepts its appointment as
successor agent under the Agency Agreements and shall assume all of
the duties and obligations of agent under the Agency Agreements.
3. The Successor Trustee hereby represents that it is a
national banking association and is authorized to exercise
corporate trust powers, has a combined capital and surplus of at
least $50,000,000, is subject to supervision or examination by
Federal or State authority, has its principal office in the Borough
of Manhattan, New York, New York and is qualified and eligible
under the provisions of Section 611 of the Indenture to be
appointed successor trustee and under the provisions of the Agency
Agreements to be appointed successor agent and hereby accepts the
appointment as successor trustee and successor agent and agrees
that upon the signing of this Instrument it shall become vested, on
the Effective Date, with all the rights, titles, interests,
capacities, privileges, duties and responsibilities of the
Resigning Trustee, as trustee and agent, including all rights,
titles, interests, capacities, privileges, duties and
responsibilities with respect to all series of the Securities with
like effect as if originally named as trustee and agent under the
Indenture and Agency Agreements.
MISC ELLANEOUS
1. The parties hereto agree that as of the close of business
on the Effective Date, all references to Morgan Guaranty Trust
Company of New York, as trustee or agent in the Indenture or Agency
Agreements, shall be deemed to refer to the Successor Trustee.
After the Effective Date, all notices or payments which were
required by the terms of the Indenture and the Agency Agreements to
be given or paid to the Resigning Trustee, as trustee and agent,
shall be given or paid to:
Bank America National Trust Company
Dome stic Corporate Trust Administration
One World Trade Center
New York. New York 10048-1191
2. The resignation, appointment and acceptance effected hereby
shall become effective as of the close of business on the Effective
Date.
3. This Instrument shall be governed by and construed in
accordance with the law governing the Indenture.
4. This Instrument may be executed in any number of
counterparts, each of which shall be an original, but which
counterparts shall together constitute but one and the same
instrument.
5. Each of the parties hereto hereby represents and warrants
for itself that as of the date hereof, and the Effective Date:
a. it has the power and authority to execute and deliver
this Instrument and to perform its obligations hereunder,
and all such action has been duly and validly authorized
by all necessary proceedings on its part;
b. this Instrument has been duly authorized, executed and
delivered by it, and constitutes a legal, valid and
binding agreement enforceable against it in accordance
with its terms, except as the enforceability of this
Instrument may be limited by bankruptcy, insolvency or
other similar laws of general application affecting the
enforcement of creditor's rights or by general principles
of equity limiting the availability of equitable
remedies.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed, accepted, acknowledged and attested
by their duly authorized officers, all as of the date and year
first above written.
Caterpillar Financial Services Corporation
as Issuer
Attest: By:______________________________________
_______________________ Title:
[Seal]
BankAmerica National Trust Company
as Successor Trustee
Attest: By:___________________________________
_______________________ Title:________________________________
[Seal]
Morgan Guaranty Trust Company
of New York
as Resigning Trustee
Attest: By:___________________________________
_________________________ Title:________________________________
Caterpillar Financial Services Corporation
as Issuer
Attest: By: \s\ James S. Beard
\s\ Nancy L. Snowden Title: President
[Seal]
BankAmerica National Trust Company
as Successor Trustee
Attest: By: \s\ Mary Fonti
\s\ Janey LaGermine Title: Trust Officer
[Seal]
Morgan Guaranty Trust Company
of New York
as Resigning Trustee
Attest: By: \s\ David K. Leverich
\s\ Diana M. Hies Title: Vice President