AMENDMENT NO. 1 to JAPAN LOCAL CURRENCY ADDENDUM
EXHIBIT
99.5
AMENDMENT NO.
1
to
This AMENDMENT NO.
1 TO JAPAN LOCAL CURRENCY ADDENDUM (this “Amendment”), dated as
of January 23, 2009, is entered into by and among Caterpillar Financial Services
Corporation (“CFSC”) and
Caterpillar Finance Corporation (“CFC” and together
with CFSC, the “Borrowers”), 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”) and Citibank, N.A., as Agent (the “Administrative Agent”
and together with the Japan Local Currency Agent, the “Agents”) under the
Credit Agreement, dated as of September 21, 2006, among the Borrowers,
Caterpillar Inc. (“Caterpillar”),
Caterpillar International Finance Limited (f/k/a Caterpillar International
Finance p.l.c.) (“CIF”), the Banks
party thereto and the Agent (as the same has been and may be further amended,
restated, supplemented or otherwise modified from time to time, 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
Japan Local Currency Bank and the Agents are parties to the Japan Local Currency
Addendum, dated as of September 21, 2006 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the “Addendum”). The
Borrowers have requested that the Japan Local Currency Bank and the Agents amend
the Addendum as hereinafter set forth, and the Japan Local Currency Bank and the
Agents have agreed to amend the Addendum pursuant to the terms of this
Amendment.
SECTION
1. Amendment to the
Addendum. Effective as of the date hereof, subject to the
satisfaction of the conditions precedent set forth in Section 3 below, the
Addendum is hereby amended as follows:
1.1 Paragraph 4 of Schedule II to the
Addendum 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 Majority Japan Local
Currency Banks;
3.2 Amendment
No. 4 to Credit Agreement (Five-Year Facility) of even date herewith with
respect to the Credit Agreement from each Borrower, Caterpillar, CIF, the Agents
and the Banks; and
3.3 Consent
to Credit Agreement (Five-Year Facility) of even date herewith with respect to
the Credit Agreement from each Borrower, Caterpillar, CIF 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
Addendum, 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 Addendum.
5.1 Upon
the effectiveness of this Amendment, each reference in the Addendum to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean
and be a reference to the Addendum, as amended hereby, and each reference to the
Addendum in any other document, instrument or agreement executed and/or
delivered in connection with the Addendum shall mean and be a reference to the
Addendum as amended hereby.
5.2 Except
as specifically amended above, the Addendum 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 Addendum 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
FINANCIAL SERVICES CORPORATION
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
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as Japan Local Currency Bank
By
/s/ Muneya
Taniguchi
Name: Muneya
Taniguchi
Title: Chief
Manager
