ex_99-3.htm

EXHIBIT 99.3

AMENDMENT NO. 1

CREDIT AGREEMENT (FIVE-YEAR FACILITY)

This AMENDMENT NO. 1 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”) and Caterpillar Finance Corporation (“CFC” and together with Caterpillar and CFSC, the “Borrowers”), the Banks and Japan 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) 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.

PRELIMINARY STATEMENTS

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 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 “Bugaj” 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.

CATERPILLAR INC.

By /s/ Kevin E. Colgan

Name: Kevin E. Colgan

Title: Treasurer

CATERPILLAR FINANCIAL SERVICES CORPORATION

By /s/ James A. Duensing

Name: James A. Duensing

Title: Executive Vice President and Chief Financial Officer

CATERPILLAR FINANCE CORPORATION

By /s/ David A. Kacynski

Name: David A. Kacynski

Title: Director

CITIBANK, N.A., as Administrative Agent

By /s/ Kevin A Ege

Name: Kevin A Ege

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/ Kevin A Ege

Name: Kevin A Ege

Title: Vice President

JPMORGAN CHASE BANK, N.A., as a Bank

By /s/ Randolph Cates

Name: Randolph Cates

Title: Executive Director

BANK OF AMERICA, N.A., as a Bank

By /s/ Jeffrey Armitage

Name: Jeffrey Armitage

Title: Senior Vice President

AMRO BANK N.V., as a Bank

By /s/ W. Stephen Jones

Name: W. Stephen Jones

Title: Managing Director

By /s/ Brendan Korb

Name: Brendan Korb

Title: Director

BARCLAYS BANK PLC, as a Bank

By /s/ Alicia Borys

Name: Alicia Borys

Title: Manager

SOCIÉTÉ GÉNÉRALE, as a 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

TORONTO DOMINION (TEXAS) LLC, as a Bank

By /s/ Debbi L. Brito

Name: Debbi L. Brito

Title: Authorized Signatory

STANDARD CHARTERED BANK, as a 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

AUSTRALIA AND NEW ZEALAND

BANKING GROUP LIMITED, as a Bank

By /s/ Damodar Menon

Name: Damodar Menon

Title: Director

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank

By /s/ Christine Howatt

Name: Christine Howatt

Title: Authorized Signatory

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Japan Local Currency Bank

By /s/ Muneya Taniguchi

Name: Muneya Taniguchi

Title: Chief Manager

LLOYDS TSB BANK plc, as a Bank

By /s/ Windsor Davies

Name: Windsor Davies

Title: Managing Director, Corporate Banking - USA

By /s/ Mario Del Duca

Name: Mario Del Duca

Title: Associate Director, Corporate Banking - USA

COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Bank

By /s/ Patrick Hartweger

Name: Patrick Hartweger

Title: Vice President

By /s/ John Marlatt

Name: John Marlatt

Title: Senior Vice President

WILLIAM STREET COMMITMENT CORPORATION (Recourse only to assets of William Street Commitment Corporation), as a Bank

By /s/ Mark Walton

Name: Mark Walton

Title: Assistant Vice President

MERRILL LYNCH BANK USA, as a Bank

By /s/ Louis Alder

Name: Louis Alder

Title: First Vice President

ING BANK N.V., DUBLIN BRANCH

By /s/ Maurice Kenny

Name: Maurice Kenny

Title: Director

By /s/ Sean Hassett

Name: Sean Hassett

Title: Director

THE BANK OF NEW YORK MELLON, N.A., as a Bank

By /s/ Daniel J. Lenckos

Name: Daniel J. Lenckos

Title: First Vice President

U.S. BANK NATIONAL ASSOCIATION, as a Bank

By /s/ Navneet Khanna

Name: Navneet Khanna

Title: Vice President

BNP PARIBAS (as successor to Banca Nazionale Del Lavoro S.p.A., New York Branch), as a Bank

By /s/ Jo Ellen Bender

Name: Jo Ellen Bender

Title: Managing Director

By /s/ Paul Harris

Name: Paul Harris

Title: Managing Director

KBC BANK N.V., as a Bank

By /s/ Thomas G. Jackson

Name: Thomas G. Jackson

Title: First Vice President

By /s/ Robert Snauffer

Name: Robert Snauffer

Title: Managing Director

THE NORTHERN TRUST COMPANY, as a Bank

By /s/ Keith Burson

Name: Keith Burson

Title: Vice President

WESTPAC BANKING CORPORATION

By /s/ Bradley Scammell

Name: Bradley Scammell

Title: Head of Corporate and Institutional Banking Americas