AMENDMENT NO. 1 to CREDIT AGREEMENT (364-DAY FACILITY)
EXHIBIT
99.1
AMENDMENT NO.
1
to
CREDIT AGREEMENT
(364-DAY FACILITY)
This AMENDMENT NO.
1 TO CREDIT AGREEMENT (364-DAY FACILITY) (this “Amendment”), dated as
of January 23, 2009, is entered into by and among Caterpillar Inc. (“Caterpillar”),
Caterpillar Financial Services Corporation (“CFSC”) and
Caterpillar Finance Corporation (“CFC”, and together
with Caterpillar and CFSC, the “Borrowers”), the
Banks and Japan Local Currency Banks parties 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) and Citibank, N.A.,
as Agent (the “Administrative Agent”
and together with the Japan 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 (364-Day Facility),
dated as of September 18, 2008 (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. Amendment to the Credit
Agreement. Effective as of the date hereof, subject to the
satisfaction of the conditions precedent set forth in Section 3 below, the
Credit Agreement is hereby amended as follows:
1.1 The
definition of “Maximum
Market Rate Spread” set forth in Section 1.01 is
amended and restated in its entirety as follows:
‘“Maximum Market Rate
Spread” shall mean, as of any date of determination, with respect to any
Advance, a rate per annum equal to 1.75%; provided, that,
commencing on the Term Loan Effective Date, the Maximum Market Rate Spread shall
be a rate per annum equal to 2.00%.”’
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. Conditions
Precedent. This Amendment shall become effective and be deemed
effective as of the date hereof upon the Administrative Agent’s receipt of duly
executed counterparts of each of the following:
3.1 this
Amendment from each Borrower, the Agents and the Banks; and
3.2 Consent
to Credit Agreement (364-Day Facility) of even date herewith with respect to the
Credit Agreement from each Borrower and the Majority Banks (the “Consent”).
SECTION
4. Covenants, Representations
and Warranties of the Borrowers.
4.1 Upon
the effectiveness of this Amendment and the Consent, 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 and the Consent, 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. A facsimile or PDF copy of any signature hereto shall
have the same effect as the original of such signature.
SECTION
7. Governing
Law. This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York without regard for conflict of law principles that would
result in the application of any law other than the internal law 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 or representatives thereunto duly authorized as of the date first above
written.
By
/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Treasurer
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By
/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Treasurer
CATERPILLAR FINANCE
CORPORATION
By
/s/ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
CITIBANK, N.A., as
Agent
By
/s/ ▇▇▇▇▇
▇ ▇▇▇
Name: ▇▇▇▇▇
▇ ▇▇▇
Title: Vice
President
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
By
/s/ ▇▇▇▇▇
▇ ▇▇▇
Name: ▇▇▇▇▇
▇ ▇▇▇
Title: Vice
President
JPMORGAN CHASE
BANK, N.A., as a Bank
By
/s/ ▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇
Title: Vice
President
BANK OF AMERICA,
N.A., as a Bank
By
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Senior
Vice President
AMRO BANK N.V., as
a Bank
By
/s/
▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇
Title: Director
By
/s/ ▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇
Title: Assistant
Vice President
BARCLAYS BANK PLC,
as a Bank
By
/s/ ▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title: Assistant
Vice President
SOCIÉTÉ GÉNÉRALE,
as a Bank
By
/s/ ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ ▇▇.
Name: ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ ▇▇.
Title: Managing
Director
ROYAL BANK OF
CANADA, as a Bank
By
/s/
▇▇▇▇▇▇▇▇ Majesty
Name: ▇▇▇▇▇▇▇▇
Majesty
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
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as Japan Local Currency Bank
By
/s/ Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
By
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized
Signatory
COMMERZBANK AG, NEW
YORK AND GRAND CAYMAN BRANCHES, as a Bank
By
/s/ ▇▇
▇▇▇▇▇▇
Name: ▇▇
▇▇▇▇▇▇
Title: Assistant
Vice President
By
/s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Senior
Vice President
ING BANK N.V.,
DUBLIN BRANCH, as a Bank
By
/s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇
Title: Director
By
/s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President
THE BANK OF NEW
YORK MELLON, as a Bank
By
/s/ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: First
Vice President
BNP PARIBAS, as a
Bank
By
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Managing
Director
By
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
THE NORTHERN TRUST
COMPANY, as a Bank
By
/s/ ▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇
Title: Senior
Vice President
WESTPAC BANKING
CORPORATION, as a Bank
By
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Head
of Corporate and Institutional Banking Americas
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK
USA, as a Bank
By
/s/ ▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇
Title: First
Vice President
▇▇▇▇▇▇▇ STREET LLC,
as a Bank
By
/s/ ▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇
Title: Authorized
Signatory