Omnibus Amendment and Waiver Agreement (Amendment No. 2) to the 2006 Five-Year Credit Agreement among the Company, Caterpillar, Caterpillar Finance Corporation, Caterpillar International Finance p.l.c., the Banks and Local Currency Banks named therein, Citibank International plc and Citibank, N.A

This OMNIBUS AMENDMENT AND WAIVER AGREEMENT (this “Amendment”), dated as of March 10, 2008, is entered into by and among Caterpillar Inc. (“Caterpillar”), Caterpillar Financial Services Corporation (“CFSC”), Caterpillar Finance Corporation (“CFC”), Caterpillar International Finance p.l.c. (“CIF”, and together with Caterpillar, CFSC and CFC, the “Borrowers”), the Banks and Local Currency Banks party hereto (collectively, the “Banks”), Citibank International plc, as the Local Currency Agent (the “Local Currency Agent”) and Citibank, N.A., as Agent (the “Administrative Agent”) under the Credit Agreement (as defined below), with respect to (a) the Credit Agreement and (b) the Local Currency Addendum (as defined below).  Each capitalized term used herein and not defined herein shall have the meaning ascribed thereto in the Credit Agreement.

 

 

PRELIMINARY STATEMENTS

 

A.    The Borrowers, the Banks, the Administrative Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent and as Japan Local Currency Bank, and the Local Currency Agent are parties to the Credit Agreement (Five-Year Facility), dated as of September 21, 2006 (as amended on September 20, 2007, the “Credit Agreement”).  The Borrowers have requested that the Banks and the Administrative Agent amend the Credit Agreement as hereinafter set forth, and the Banks and the Administrative Agent have agreed to amend the Credit Agreement pursuant to the terms of this Amendment.

 

B.    CFSC, CIF, the Local Currency Banks, the Local Currency Agent and the Administrative Agent are parties to the Local Currency Addendum, dated as of September 21, 2006 (the “Addendum”), to the Credit Agreement.  CFSC and CIF have requested that the Local Currency Banks, the Local Currency Agent and the Administrative Agent amend the Addendum as hereinafter set forth, and the Local Currency Banks, the Local Currency Agent and the Administrative Agent have agreed to amend the Addendum pursuant to the terms of this Amendment.

 

C.    CIF, being, as of the date of this Amendment,  a public limited company, plans to re-register as a private company under section 14(6) of the Irish Companies (Amendment) Act 1983 with the name “Caterpillar International Finance Limited” (the “CIF Re-Registration”).  Section 14(6) of the Companies (Amendment) Act 1983 provides that the:

 

        re-registration of a public limited company as a private company pursuant to this Act shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it in its former status may be continued or commenced against it in its new status.

 

Therefore, the proposed re-registration of CIF as a private company does not affect CIF’s obligations under the Credit Agreement and the Addendum. For the avoidance of doubt, the Borrowers, the Banks, the Local Currency Agent and the Administrative Agent have agreed to enter into this Amendment to memorialize the proposed re-registration of CIF as a private company and its confirmation that its obligations under the Credit Agreement and Addendum are not affected thereby.

 

D.    Subsequent to the CIF Re-Registration, CIF proposes to transfer substantially all of its assets (consisting primarily of loans to affiliates of CFSC) to a wholly-owned subsidiary of CIF, Caterpillar International Finance Luxembourg S.ar.l (“CIF Lux”), in return for the issue of certain preferred equity certificates of CIF Lux (the “CIF Asset Transfer”).  The Borrowers have requested that the Banks agree to irrevocably waive any Event of Default or unmatured Event of Default that may arise under Section 6.01(c) of the Credit Agreement as a result of the CIF Asset Transfer, and the Banks have agreed to grant such irrevocable waiver pursuant to the terms hereof.

 

SECTION 1.  CIF Confirmation.

 

CIF confirms that it will, upon the CIF Re-Registration taking effect, remain (a) liable for all of its obligations under the Credit Agreement and the Addendum, and (b) a “Borrower” under the Credit Agreement, the Addendum, and the Notes, and all references in the Credit Agreement, the Addendum and the Notes to “Caterpillar International Finance p.l.c.” or “CIF” shall, for the avoidance of doubt, be references to Caterpillar International Finance Limited.  CIF hereby represents and warrants that the representations and warranties by or relating to CIF set forth in Article IV of the Credit Agreement, as amended by this Amendment, are true and correct on and as of the date hereof and will be true and correct upon the CIF Re-Registration.

 

SECTION 2.  Amendments to the Addendum.  

 

Subject to the satisfaction of the condition precedent set forth in Section 6 below:

 

Section 4.03(a) of the Addendum is hereby amended and restated in its entirety as follows:

 

    (a)    if to CIF, prior to March 25, 2008, at Caterpillar International Finance p.l.c. (after the CIF Re-Registration, Caterpillar International Finance Limited), 1 North Wall Quay, Dublin 1 Ireland, Attention:  Vincent Donlon, Director (Facsimile No.  353-1 ###-###-####) and from and after March 25, 2008, at 2120 West End Avenue, Nashville, Tennessee 37203, Attention: David A. Kacynski, Director (Facsimile No. 1 ###-###-####), with a copy to CFSC at its address and telecopy number referenced in Section 8.02 of the Credit Agreement;

 

SECTION 3.  Limited Waiver.  

 

Effective as of the date hereof, subject to the satisfaction of the condition precedent set forth in Section 6 below, the Banks hereby irrevocably waive any Event of Default or unmatured Event of Default that would otherwise result under Section 6.01(c) of the Credit Agreement solely as a result of the CIF Asset Transfer.  This irrevocable waiver shall not be deemed to constitute a waiver of any other Event of Default or unmatured Event of Default, any future breach of the Credit Agreement, or any future breach of the other agreements, documents and instruments delivered in connection with the Credit Agreement.  The agreement to the terms hereof by any of the Banks, the Administrative Agent or the Local Currency Agent shall not establish a custom or course of dealing among the Administrative Agent, the Local Currency Agent, any Bank or any Borrower.

 

SECTION 4.  Further Assurances.  

 

CIF and each of the other Borrowers shall execute such other documents or instruments as may be reasonably requested by the Administrative Agent, the Local Currency Agent or any of the Banks in connection with this Amendment, the CIF Asset Transfer and the CIF Re-Registration.  Without limiting the generality of the foregoing, the Borrowers agree that within ten (10) Business Days after the CIF Re-Registration, CIF will deliver to the Administrative Agent an opinion from Irish counsel for CIF, substantially in the form attached hereto as Exhibit A, that the CIF Re-Registration has become effective under Irish law.

 

SECTION 5.  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 6.  Conditions Precedent.  

 

This Amendment shall be deemed effective as of the date hereof upon the Administrative Agent having received duly executed copies of this Amendment from each Borrower, the Majority Banks and the Majority Local Currency Banks, provided that this Amendment shall cease to be effective if the CIF Re-Registration has not occurred by April 30, 2008.  The Administrative Agent shall notify the Borrowers within two (2) Business Days after the date that the Administrative Agent receives the requisite duly executed copies of this Amendment from the Majority Banks and the Majority Local Currency Banks.

 

SECTION 7.  Covenants, Representations and Warranties of the Borrowers.

 

7.1    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 giving effect to that certain Waiver to Credit Agreement (Five Year Facility), dated as of November 26, 2007, among the Borrowers, the Banks, the Administrative Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local Currency Agent and as Japan Local Currency Bank, and the Local Currency Agent (the “Waiver”), 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.

 

7.2    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 except, in both cases, for those Events of Default, either matured or unmatured, as described in the Waiver.

 

SECTION 8. Reference to and Effect on the Credit Agreement.

 

8.1    Upon the effectiveness of this Amendment, each reference in (a) 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 and (b) the Addendum to “this Addendum”, “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

 

8.2    Except as specifically amended or waived above, the Credit Agreement, the Addendum, 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.

 

8.3    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 Addendum, 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 9.  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.  Delivery of a signature page by facsimile transmission shall be as effective as manual delivery thereof.

 

SECTION 10. Governing Law.  

 

 

SECTION 11. 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 representatives thereunto duly authorized as of the date first above written.

 

				CATERPILLAR INC.
			By:	/s/ Kevin E. Colgan
				Name:	Kevin E. Colgan
				Title:	Treasurer
				CATERPILLAR FINANCIAL SERVICES CORPORATION
			By:	/s/ David A. Kacynski
				Name:	David A. Kacynski
				Title:	Treasurer
				CATERPILLAR INTERNATIONAL FINANCE p.l.c.
			By:	/s/ David A. Kacynski
				Name:	David A. Kacynski
				Title:	Director
				CATERPILLAR FINANCE CORPORATION
			By:	/s/ David A. Kacynski
				Name:	David A. Kacynski
				Title:	Director

 

				CITIBANK, N.A., as Agent
			By:	/s/ Kevin Ege
				Name:	Kevin Ege
				Title:	Vice President

				CITIBANK, N.A., as a Bank and as a Local Currency Bank
			By:	/s/ Kevin Ege
				Name:	Kevin Ege
				Title:	Vice President

				CITIBANK INTERNATIONAL plc, as Local Currency Agent
			By:	/s/ Alasdair Watson
				Name:	Alasdair Watson
				Title:	Senior Specialist

 

				JPMORGAN CHASE BANK, N.A.
			By:	/s/ Randolph Cates
				Name:	Randolph Cates
				Title:	Executive Director

				BANK OF AMERICA, N.A.
			By:	/s/ Jeff Armitage
				Name:	Jeff Armitage
				Title:	Senior Vice President

				ABN AMRO Bank N.V., as a Bank and as Local Currency Bank
			By:	/s/ Jean Tremblay
				Name:	Jean Tremblay
				Title:	Managing Director
			By:	/s/ Brendan Korb
				Name:	Brendan Korb
				Title:	Director

				BARCLAYS BANK PLC, as a Bank and as a Local Currency Bank
			By:	/s/ Nicholas Bell
				Name:	Nicholas Bell
				Title:	Director

				SOCIETE GENERALE, as a Bank and as a Local Currency Bank
			By:	/s/ Kimberly A. Metzger
				Name:	Kimberly A. Metzger
				Title:	Director

				ROYAL BANK OF CANADA, as a Bank
			By:	/s/ Meredith Majesty
				Name:	Meredith Majesty
				Title:	Authorized Signatory

				ROYAL BANK OF CANADA, acting through its London Branch, as a Local Currency Bank
			By:	/s/ Michael Atherton
				Name:	Michael Atherton
				Title:	Managing Director

				WestLB AG, New York Branch, as a Bank and as a Local Currency Bank
			By:	/s/ Peter Badura
				Name:	Peter Badura
				Title:	Managing Director
			By:	/s/ Salvatore Battinelli
				Name:	Salvatore Battinelli
				Title:	Managing Director

				TORONTO DOMINION (TEXAS) LLC, as a Bank
			By:	/s/ Debbi L. Brito
				Name:	Debbi L. Brito
				Title:	Authorized Signatory

 

				STANDARD CHARTERED BANK
			By:	/s/ Karen Bershtein
				Name:	Karen Bershtein
				Title:	Associate Director
			By:	/s/ Robert K. Reddington
				Name:	Robert K. Reddington
				Title:	AVP/Credit Documentation Credit Risk Control Standard Chartered Bank N.V.

				Australia and New Zealand Banking Group Limited, as a Bank
			By:	/s/ John W. Wade
				Name:	John W. Wade
				Title:	Director

				THE BANK OF TOKYO-MITSUBISHI UFJ LTD., as a Bank
			By:	/s/ Christine Howatt
				Name:	Christine Howatt
				Title:	Authorized Signatory

				LLOYDS TSB BANK PLC, as a Bank
			By:	/s/ Windsor R. Davies
				Name:	Windsor R. Davies
				Title:	Managing Director Corporate Banking USA D061
			By:	/s/ Deborah Carlson
				Name:	Deborah Carlson
				Title:	Director Corporate Banking USA C103

				MERRILL LYNCH BANK USA, as a Bank and as a Local Currency Bank
			By:	/s/ Derek Befus
				Name:	Derek Befus
				Title:	Vice President

				COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES, as a Bank and as a Local Currency Bank
			By:	/s/ Al Morrow
				Name:	Al Morrow
				Title:	Assistant Vice President
			By:	/s/ John Marlatt
				Name:	John Marlatt
				Title:	Senior Vice President

				ING Bank N.V. Dublin Branch, as a Bank and as a Local Currency Bank
			By:	/s/ Emma Condon
				Name:	Emma Condon
				Title:	Vice President
			By:	/s/ Sean Hassett
				Name:	Sean Hassett
				Title:	Director

				U.S. Bank National Association, as a Bank
			By:	/s/ James N. DeVries
				Name:	James N. DeVries
				Title:	Senior Vice President

				Mellon Bank, N.A., as a Bank
			By:	/s/ Daniel J. Lenckos
				Name:	Daniel J. Lenckos
				Title:	First Vice President