AMENDMENT NO. 2 to CREDIT AGREEMENT (FIVE-YEAR FACILITY)
EXHIBIT
99.2
AMENDMENT NO.
2
to
CREDIT AGREEMENT
(FIVE-YEAR FACILITY)
This AMENDMENT NO.
2 TO CREDIT AGREEMENT (FIVE-YEAR 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 (Five-Year Facility),
dated as of September 20, 2007 (as the same has been and 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 conditions precedent set forth in Section 3 below, the
Credit Agreement is hereby amended as follows:
1.1 Section 1.01 is
amended by deleting therefrom the defined terms “Applicable Eurocurrency
Margin” and “Applicable TIBOR
Margin” in their entirety.
1.2 Section 1.01 is
amended by adding the following defined terms thereto in alphabetical
order:
‘“Applicable Margin”
means (a) with respect to Base Rate Advances and Japan Base Rate Advances, the
greater of (i) the applicable Market Rate Spread minus 1.00% and (ii) 0.00%; and
(b) with respect to Eurocurrency Rate Advances and TIBO Rate Advances, the
applicable Market Rate Spread.
“Market Rate Spread”
means, for any Advance for any Interest Period, the rate per annum equal to the
five-year credit default swap mid-rate spread of (a) Caterpillar in the case of
any Advance made to Caterpillar or (b) CFSC in the case of any Advance made to
CFSC or CFC, as provided by the Quotation Agency for the five-year period
beginning on the Rate Set Date (as defined below) appearing on the Quotation
Agency’s website as of 12:00 noon (New York City time) or otherwise delivered by
the Quotation Agency to the Agent, in each case two Business Days prior to the
first day of such Interest Period (the “Rate Set Date”);
provided, that
the Market Rate Spread shall in no event be less than a rate per annum equal to
0.25% or greater than the applicable Maximum Market Rate Spread, in each case as
of the applicable Rate Set Date; provided, further that in the
event that the Market Rate Spread is not available from the Quotation Agency on
the Rate Set Date for any Interest Period, the Market Rate Spread for such
Interest Period shall be the Maximum Market Rate Spread on such Rate Set
Date.
“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%.
“Quotation Agency”
means Markit Group Limited or any successor thereto.”’
1.3 Sections 2.07(a),
(b) and (c) are amended and
restated in their entirety as follows:
(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 sum
of the Base Rate in effect from time to time plus the Applicable
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); 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 sum of the
Japan Base Rate in effect from time to time plus the Applicable
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 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
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.
(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
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.”
1.4 Paragraph 4 of Schedule II to the
Form of Japan Local Currency Addendum attached as Exhibit G to the
Credit Agreement is amended and restated in its entirety as
follows:
“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 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 sum of (i) the Japan Base Rate plus (ii) the Applicable Margin 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
Advance.”
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;
3.2 Amendment
No. 1 to Japan Local Currency Addendum of even date herewith from CFSC, CFC, the
Agents and the Majority Japan Local Currency Banks; and
3.3 Consent
to Credit Agreement (Five-Year 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.
CATERPILLAR
INC.
By
/s/ Xxxxx
X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Treasurer
By
/s/ Xxxxx
X. Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Treasurer
CATERPILLAR FINANCE
CORPORATION
By
/s/ Xxxxx
X. Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title: Director
CITIBANK, N.A., as
Agent
By
/s/ Xxxxx
X Xxx
Name: Xxxxx
X Xxx
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/ Xxxxx
X Xxx
Name: Xxxxx
X Xxx
Title: Vice
President
JPMORGAN CHASE
BANK, N.A., as a Bank
By
/s/ Xxxx
Xxxx
Name: Xxxx
Xxxx
Title: Vice
President
BANK OF AMERICA,
N.A., as a Bank
By
/s/ Xxxx
XxXxxxxx
Name: Xxxx
XxXxxxxx
Title: Senior
Vice President
AMRO BANK N.V., as
a Bank
By
/s/
Xxxxxxx Xxxx
Name: Xxxxxxx
Xxxx
Title: Director
By
/s/ Xxxx
Xxxx
Name: Xxxx
Xxxx
Title: Assistant
Vice President
BARCLAYS BANK PLC,
as a Bank
By
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title: Assistant
Vice President
SOCIÉTÉ GÉNÉRALE,
as a Bank
By
/s/ Xxxx
X.X. Xxxxxxx Xx.
Name: Xxxx
X.X. Xxxxxxx Xx.
Title: Managing
Director
ROYAL BANK OF
CANADA, as a Bank
By
/s/
Xxxxxxxx Majesty
Name: Xxxxxxxx
Majesty
Title: Authorized
Signatory
STANDARD CHARTERED
BANK, as a Bank
By
/s/ Xxxxx
Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: Associate
Director
By
/s/ Xxxxxx
X. Xxxxxxxxxx
Name: Xxxxxx
X. Xxxxxxxxxx
Title: AVP
/ Credit Documentation Credit Risk Control
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as a Bank
By
/s/ Xxxxxx
Xxxxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxxxx
Title: Authorized
Signatory
COMMERZBANK AG, NEW
YORK AND GRAND CAYMAN BRANCHES, as a Bank
By
/s/ Xx
Xxxxxx
Name: Xx
Xxxxxx
Title: Assistant
Vice President
By
/s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title: Senior
Vice President
ING BANK N.V.,
DUBLIN BRANCH, as a Bank
By
/s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title: Director
By
/s/ Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: Vice
President
THE BANK OF NEW
YORK MELLON, as a Bank
By
/s/ Xxxxxx
X. Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title: First
Vice President
BNP PARIBAS, as a
Bank
By
/s/ Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title: Managing
Director
By
/s/
Xxxxxxx Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Director
THE NORTHERN TRUST
COMPANY, as a Bank
By
/s/ Xxxxx
Xxxx
Name: Xxxxx
Xxxx
Title: Senior
Vice President
WESTPAC BANKING
CORPORATION, as a Bank
By
/s/
Xxxxxxx Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
Title: Head
of Corporate and Institutional Banking Americas
XXXXXXX XXXXX BANK
USA, as a Bank
By
/s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: First
Vice President
XXXXXXX STREET
COMMITMENT CORPORATION (Recourse only to assets of
Xxxxxxx Street
Commitment Corporation), as a Bank
By
/s/ Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: Authorized
Signatory
WESTLB AG, NEW YORK
BRANCH, as a Bank
By
/s/
Xxxxxxxxx Xxxxxxxxxx
Name: Xxxxxxxxx
Xxxxxxxxxx
Title: Managing
Director
By
/s/ Xxxxx
Xxxxxxxxxxx
Name: Xxxxx
Xxxxxxxxxxx
Title: Manager
AUSTRALIA AND NEW
ZEALAND BANKING GROUP LIMITED, as a Bank
By
/s/ Xxxx
X. Xxxx
Name:
Xxxx X. Xxxx
Title: Deputy
General Manager / Head of Operations and Infrastructure
