AMENDMENT NO. 3 to CREDIT AGREEMENT (FIVE-YEAR FACILITY)
EXHIBIT
99.4
AMENDMENT
NO. 3
to
CREDIT
AGREEMENT (FIVE-YEAR FACILITY)
This AMENDMENT NO.
3 TO CREDIT AGREEMENT (FIVE-YEAR FACILITY) (this “Amendment”), dated as
of September 18, 2008, is entered into by and among Caterpillar Inc. (“Caterpillar”),
Caterpillar Financial Services Corporation (“CFSC”), Caterpillar
Finance Corporation (“CFC”) and Caterpillar
International Finance Limited (f/k/a Caterpillar International Finance p.l.c.
“CIF”, and
together with Caterpillar, CFSC and CFC, the “Borrowers”), the
Banks, Japan Local Currency Banks and Local Currency Banks party hereto
(collectively, the “Banks”), The Bank of
Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent (the “Japan Local Currency
Agent”) and as Japan Local Currency Bank (the “Japan Local Currency
Bank”) under the Credit Agreement (as defined below), Citibank
International plc, as the Local Currency Agent under the Credit Agreement (as
defined below) (the “Local Currency
Agent”), and Citibank, N.A., as Agent (the “Administrative Agent”
and together with the Japan Local Currency Agent and the Local Currency Agent,
the “Agents”)
under the Credit Agreement. Each capitalized term used herein and not
defined herein shall have the meaning ascribed thereto in the Credit
Agreement.
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PRELIMINARY
STATEMENTS
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The Borrowers, the
Banks and the Agents are parties to the Credit Agreement (Five-Year Facility),
dated as of September 21, 2006 (as amended on September 20, 2007, as amended on
March 10, 2008, and as the same may be further amended, restated, supplemented
or otherwise modified from time to time, the “Credit
Agreement”). The Borrowers have requested that the Banks and
the Agents amend the Credit Agreement as hereinafter set forth, and the Banks
and the Agents have agreed to amend the Credit Agreement pursuant to the terms
of this Amendment.
SECTION
1. Amendments
to the Credit Agreement. Effective as of the date
hereof, subject to the satisfaction of the condition precedent set forth in
Section 3
below, the Credit Agreement is hereby amended as follows:
1.1 The definition of
“Caterpillar Purchase
Claims” set forth in Section 1.01 is
amended and restated in its entirety as follows:
“Caterpillar Purchase
Claims” means the outstanding liens on or claims against or in respect of
any of the accounts receivable of Caterpillar or any of its Subsidiaries
(excluding CFSC and CFSC’s Subsidiaries) arising out of the sale or
securitization by Caterpillar or any of its Subsidiaries (excluding CFSC and
CSFC’s Subsidiaries) of such accounts receivable.
1.2 The definition of
“CFSC Purchase
Claims” set forth in Section 1.01 is
amended and restated in its entirety as follows:
“CFSC Purchase Claims”
means the outstanding liens on or claims against or in respect of any of the
accounts receivable of CFSC or any of its Subsidiaries arising out of the sale
or securitization by CFSC or any such Subsidiaries of such accounts
receivable.
1.3 The definition of
“364-Day Credit
Agreement” set forth in Section 1.01 is
amended and restated in its entirety as follows:
“364-Day Credit
Agreement” means that certain Credit Agreement (364-Day Facility) dated
as of September 18, 2008, 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.
1.4 Section 5.02(a) is
amended and restated in its entirety as follows:
(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 (excluding any
assignment of accounts receivable arising out of or in connection with the sale
or securitization by Caterpillar, CFSC or any Subsidiary of either of its
accounts receivable giving rise to Caterpillar Purchase Claims or CFSC Purchase
Claims), 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.
1.5 Section 5.02(b) is
amended by amending and restating the phrase beginning with the first occurrence
of the words “except that” and ending with
the words “any other Person” immediately before the proviso at the end of Section 5.02(b) as
follows:
except that any Subsidiary
of such Borrower may merge or consolidate with or into, or transfer assets to,
or acquire assets of, such Borrower or 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,
1.6 Section 5.04(a) is
amended and restated in its entirety as follows:
(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 10.0
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 10.0 to 1 on each December 31, commencing December 31,
2008. 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.
1.7 Section 6.01(e) is
amended to add the following proviso at the end thereof:
provided, however, that the
filing of one or more of the proceedings and/or the occurrence of one or more of
the other events described in this Section 6.01(e) with respect to Elektrocieplownia Starachowice
Sp. z o.o.,
Przedsiebiorstwo Energetyki Cieplnej “▇▇▇▇▇” Sp. z o.o., Necoles Investments, B.V. or Caterpillar
Power Ventures Europe, B.V. shall not constitute an Event of Default;
or
1.8 Section 8.07(f) is
amended and restated in its entirety as follows:
(f) Notwithstanding the
foregoing, any Bank may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, rights to payments of principal of and/or interest on the Advances)
to secure obligations of such Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, without prior notice to or consent of the
Borrowers or the Agent; provided that no such pledge or assignment shall release
such Bank from any of its obligations hereunder or substitute any such pledgee
or assignee for such Bank as a party hereto.
1.9 Article VII is
amended to add the following new Section 7.08 at the end thereof:
SECTION
7.08. Delegation of
Duties. The Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under the Japan Local Currency
Addendum by or through any one or more sub-agents appointed by the
Agent. The Agent and any such sub-agent may perform any and all of
its duties and exercise its rights and powers by or through their respective
affiliates or through their or their respective affiliates’ respective managers,
administrators, trustees, partners, directors, officers, employees, agents, fund
managers and advisors (for purposes of this Section, the “Related
Parties”). Each such sub-agent and the Related Parties of the
Agent and each such sub-agent shall be entitled to the benefits of all
provisions of this Article VII and Section 8.04 (as though such sub-agents were
the “Agent” hereunder or under the Japan Local currency Addendum) as if set
forth in full herein with respect thereto.
SECTION
2. Reaffirmation
of CFSC Guaranty. CFSC hereby reaffirms all of its
obligations under Article IX of the Credit Agreement and acknowledges and agrees
that such obligations remain in full force and effect and are hereby ratified,
reaffirmed and confirmed.
SECTION
3. Condition
Precedent. This Amendment shall become effective and be
deemed effective as of the date hereof upon the Administrative Agent’s receipt
of duly executed originals of this Amendment from each Borrower, the Agents and
the Banks.
SECTION
4. Covenants,
Representations and Warranties of the Borrowers.
4.1 Upon the
effectiveness of this Amendment, each Borrower hereby reaffirms all covenants,
representations and warranties made by it in the Credit Agreement, as amended
hereby, and agrees that all such covenants, representations and warranties shall
be deemed to have been re-made as of the effective date of this
Amendment.
4.2 Each Borrower
hereby represents and warrants that (a) this Amendment constitutes a legal,
valid and binding obligation of such Borrower, enforceable against such Borrower
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 creditor’s rights generally and by the effect of
general principles of equity and (b) upon the effectiveness of this Amendment,
no Event of Default shall exist with respect to such Borrower and no event shall
exist which, with the giving of notice, the lapse of time or both, would
constitute an Event of Default with respect to such Borrower.
SECTION
5. Reference
to and Effect on the Credit Agreement.
5.1 Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean
and be a reference to the Credit Agreement, as amended hereby, and each
reference to the Credit Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Credit Agreement shall mean and
be a reference to the Credit Agreement as amended hereby.
5.2 Except as
specifically amended above, the Credit Agreement, the Notes and all other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
5.3 The execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of any party under the Credit Agreement, the Notes or
any other document, instrument or agreement executed in connection therewith,
nor constitute a waiver of any provision contained therein, except as
specifically set forth herein.
SECTION
6. Execution
in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument.
SECTION
7. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION
8. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be executed by their respective
officers thereunto duly authorized as of the date first above
written.
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Treasurer
CATERPILLAR
FINANCIAL SERVICES
CORPORATION
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice
President and Chief Financial Officer
CATERPILLAR
INTERNATIONAL FINANCE
LIMITED (f/k/a Caterpillar International Finance p.l.c.)
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Director
CATERPILLAR
FINANCE CORPORATION
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Director
CITIBANK,
N.A., as Administrative Agent
By /s/ ▇▇▇▇▇ ▇
▇▇▇
Name: ▇▇▇▇▇
▇ ▇▇▇
Title: Vice
President
CITIBANK
INTERNATIONAL plc, as Local Currency Agent
By /s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Senior
Specialist
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., as Japan Local Currency Agent
By /s/ Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
CITIBANK,
N.A., as a Bank and as a Local Currency Bank
By /s/ ▇▇▇▇▇ ▇
▇▇▇
Name: ▇▇▇▇▇
▇ ▇▇▇
Title: Vice
President
JPMORGAN
CHASE BANK, N.A., as a Bank and as a Local Currency Bank
By /s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Executive
Director
BANK
OF AMERICA, N.A., as a Bank
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Senior
Vice President
AMRO
BANK N.V., as a Bank and as a Local Currency Bank
By /s/ W. ▇▇▇▇▇▇▇
▇▇▇▇▇
Name: W.
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing
Director
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇
Title: Director
BARCLAYS
BANK PLC, as a Bank and as a Local Currency Bank
By /s/ ▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title: Manager
SOCIETE
GENERALE, as a Bank and as a Local Currency Bank
By /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Director
ROYAL
BANK OF CANADA, as a Bank
By /s/ ▇▇▇▇▇▇▇▇
Majesty
Name: ▇▇▇▇▇▇▇▇
Majesty
Title: Authorized
Signatory
ROYAL
BANK OF CANADA, acting through its London Branch, as a Local Currency
Bank
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Managing
Director
TORONTO
DOMINION (TEXAS) LLC, as a Bank
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Authorized
Signatory
STANDARD
CHARTERED BANK, as a Bank
By /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Associate
Director
By /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Title: AVP
/ Credit Documentation Credit Risk Control
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, as a
Bank
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Director
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank
By /s/ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Authorized
Signatory
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., as Japan Local Currency
Bank
By /s/ Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
LLOYDS
TSB BANK plc, as a Bank and as a Local Currency Bank
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Managing
Director, Corporate Banking - USA
By /s/ Mario Del
Duca
Name: Mario
Del Duca
Title: Managing
Director, Corporate Banking - USA
COMMERZBANK
AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Bank and as a Local Currency
Bank
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Vice
President
By /s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Senior
Vice President
▇▇▇▇▇▇▇
STREET COMMITMENT CORPORATION
(Recourse only to assets of ▇▇▇▇▇▇▇ Street Commitment Corporation), as a
Bank
By /s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: Assistant
Vice President
▇▇▇▇▇▇▇
▇▇▇▇▇ BANK USA, as a Bank
By /s/ ▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇
Title: First
Vice President
ING
BANK N.V., DUBLIN BRANCH
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Director
THE
BANK OF NEW YORK MELLON (as successor to MELLON BANK, N.A.), as a
Bank
By /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: First
Vice President
U.S.
BANK NATIONAL ASSOCIATION, as a Bank
By /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President
BNP
PARIBAS (as successor to Banca Nazionale Del Lavoro S.p.A., New York Branch), as
a Bank
By /s/ Jo ▇▇▇▇▇
▇▇▇▇▇▇
Name: Jo
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing
Director
By /s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: Managing
Director
KBC
BANK N.V., as a Bank and as a Local Currency Bank
By /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: First
Vice President
By /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Managing
Director
THE
NORTHERN TRUST COMPANY, as a Bank
By /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President