AMENDMENT NO. 1 to CREDIT AGREEMENT (364-DAY FACILITY)
EXHIBIT 99.3
AMENDMENT NO. 1
to
CREDIT AGREEMENT (364-DAY FACILITY)
This AMENDMENT NO. 1 TO CREDIT AGREEMENT (364-DAY FACILITY) (this “Amendment”), dated as of September 17, 2009, is entered into by and among Caterpillar Inc. (“Caterpillar”) and Caterpillar Financial Services Corporation (“CFSC”,
and together with Caterpillar, the “Borrowers”), the Banks parties hereto (the “Banks”) and Citibank, N.A., as Administrative Agent (the “Administrative Agent”) under the Credit Agreement (as defined below). 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 |
The Borrowers, the Banks and the Administrative Agent are parties to the Credit Agreement (364-Day Facility), dated as of March 31, 2009 (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
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.
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 2 below, the Credit Agreement is hereby amended as follows:
1.1 The definition of “Accumulated Other Comprehensive Income” set forth in Section 1.01 is amended and restated in its entirety as follows:
“Accumulated Other Comprehensive Income” means (i) with respect to Caterpillar, on any date of determination, the accumulated other comprehensive income(loss) balance as presented in Caterpillar’s financial statements compiled in accordance with generally accepted accounting principles, and (ii) with respect to CFSC,
on any date of determination, the aggregate amount, as such amount appears in CFSC’s financial statements, compiled in accordance with generally accepted accounting principles, of (x) CFSC’s translation adjustments related to its foreign currency transactions, (y) adjustments to the market value of CFSC’s derivative instruments and (z) adjustments to the market value of CFSC’s retained interests in securitized receivables.
1.2 The definition of “CFSC Consolidated Debt” set forth in Section 1.01 is deleted in its entirety.
1.3 The definition of “Consolidated Net Worth” set forth in Section 1.01 is amended and restated in its entirety as follows:
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“Consolidated Net Worth” means as at any date, (i) for Caterpillar, the consolidated stockholders’ equity (including preferred stock but excluding the pension and other post-retirement benefits balance within Accumulated Other Comprehensive Income) of Caterpillar at such date, and (ii) for CFSC, the stockholders’
equity (including preferred stock but excluding Accumulated Other Comprehensive Income and non-controlling interests as defined in accordance with generally accepted accounting principles) of CFSC on such date.
1.4 The definition of “Existing 364-Day Agreement” set forth in Section 1.01 is amended and restated in its entirety as follows:
“Existing 364-Day Credit Agreement” means that certain Credit Agreement (364-Day Facility) dated as of September 17, 2009, 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.
1.5 The definition of “Interest Expense” set forth in Section 1.01 is amended and restated in its entirety as follows:
“Interest Expense” means for any period of determination, all interest (without duplication), whether paid in cash or accrued as a liability, on Debt of CFSC and its Subsidiaries determined on a consolidated basis for such period (including imputed interest on any capital lease of CFSC or its Subsidiaries)
in accordance with generally accepted accounting principles.
1.6 Section 1.01 is amended by adding the following defined terms thereto in appropriate alphabetical order:
“Insignificant Subsidiary” means, on any date, any Subsidiary of Caterpillar or CFSC whose aggregate asset value, as reasonably calculated by Caterpillar in accordance with generally accepted accounting principles, is at less than or equal to $50,000,000 on such date.
“Net Gain/(Loss) From Interest Rate Derivatives” has the meaning as reflected in the financial caption, Other income(expense), in CFSC’s Consolidated Statement of Profit as compiled under generally accepted accounting principles.
1.7 Section 4.01(h) is amended and restated in its entirety as follows:
“(h) ERISA. Each Plan of such Borrower or a Subsidiary of such Borrower or an ERISA Affiliate complies in all material respects with ERISA, the Code and regulations thereunder and the terms of such Plan. Each Plan has satisfied the minimum funding standard under Section 412(a) of the Code without
the need of any funding waiver under Section 412(c) of the Code. Neither such Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA) (i) has engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Code whereby such prohibited transaction has materially adversely affected the business, financial condition or results of operations of such Borrower and any of its Subsidiaries,
taken as a whole, or (ii) has taken or failed to take any action which would constitute or result in an ERISA Termination Event. Neither such Borrower nor any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. Neither such Borrower nor any ERISA Affiliate has failed to make a required installment or any other required payment under Section
412 of the Code or Section 430 of the Code on or before the due date for such installment or other payment. Neither such Borrower nor any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid.”
1.8 Section 4.01(i) is amended and restated in its entirety as follows:
“(i) Taxes; Assessments. Such Borrower has paid or discharged, or caused to be paid or discharged, before the same shall have become delinquent, all taxes, assessments and governmental charges levied or imposed upon such the Borrower or any Subsidiary of such Borrower or upon the income, profits or property
of such Borrower or any Subsidiary of such Borrower, other than (i) such taxes, assessments and governmental charges the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established, or (ii) up to $10,000,000 at any time in aggregate taxes, assessments, and governmental charges so long as no material adverse effect upon the business, financial condition or results of operations of the Borrowers and their Subsidiaries,
taken as a whole, could reasonably be expected to result therefrom, and so long as, upon knowledge thereof, the applicable Borrower or Subsidiary either promptly pays the applicable delinquent amount or contests such amount as contemplated above.”
1.9 Section 5.01(d) is amended by inserting the following proviso at the end thereof, immediately following the first proviso:
“provided, further, that up to $10,000,000 in aggregate taxes, assessments, governmental charges, and lawful claims as described above may be delinquent at any time so long as no material adverse effect upon the business, financial
condition or results of operations of the Borrowers and their Subsidiaries, taken as a whole, could reasonably be expected to result therefrom, and so long as, upon knowledge thereof, the applicable Borrower or Subsidiary either promptly pays the applicable delinquent amount or contests such amount as contemplated above.”
1.10 Section 5.01(f)(viii) is amended and restated in its entirety as follows:
“(viii) promptly after (A) the occurrence thereof, notice that (1) an ERISA Termination Event or a “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA, with respect to any Plan of such Borrower has occurred and there shall result therefrom a liability or material risk of incurring a liability to the PBGC or a Plan that
will have a material adverse affect upon the business or financial condition or results of such Borrower and its Subsidiaries, taken as a whole, which such notice shall specify the nature thereof and such Borrower’s proposed response thereto, (2) such Borrower or an ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 or Section 430 of the Code and (3) the plan administrator of any Plan has applied under Section 412(c) of the Code for a waiver of the
minimum funding standards of Section 412(a) of the Code, together with copies of such waiver application, and (B) actual knowledge thereof, copies of any notice of the PBGC’s intention to terminate or to have a trustee appointed to administer any Plan;”
1.11 Section 5.03 is amended and restated in its entirety as follows:
“SECTION 5.03. Financial Covenant of Caterpillar. So long as any Advance shall remain unpaid or any Bank shall have any Commitment hereunder, Caterpillar will, unless the Majority Banks shall otherwise consent in writing, maintain at all times during each fiscal year of Caterpillar, Consolidated Net Worth
of not less than $9,000,000,000.”
1.12 Sections 5.04(a) and (b) are amended and restated in their entirety as follows:
“(a) Ratio of CFSC Debt to Consolidated Net Worth.
(i) Maintain at all times a ratio (the “Leverage Ratio”) of (x) Debt of CFSC and its Subsidiaries on a consolidated basis to (y) 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, 2009. For purposes of this subsection (ii), the Leverage Ratio shall be the ratio of (x) Debt of CFSC and its Subsidiaries on a consolidated basis to (y) CFSC’s Consolidated Net Worth
on the date for which computed.
(b) Interest Coverage Ratio. Maintain a ratio of (i) profit excluding income taxes, Interest Expense and Net Gain/(Loss) From Interest Rate Derivatives to (ii) Interest Expense, of not less than 1.15 to 1, in each case, calculated at the end of each calendar quarter for the rolling four-quarter period then most
recently ended for CFSC and its Subsidiaries on a consolidated basis in accordance with generally accepted accounting principles.”
1.13 The proviso appearing in Section 6.01(e) is amended and restated in its entirety as follows:
“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 any Insignificant Subsidiary shall
not constitute an Event of Default hereunder until such time as the aggregate of the asset values, as reasonably determined by Caterpillar in accordance with generally accepted accounting principles, of all Insignificant Subsidiaries subject to the proceedings and/or other events described in this Section 6.01(e) equals or exceeds $250,000,000 (with each Insignificant Subsidiary’s asset value being determined, for purposes of this
clause (e), on the date on which such filing or other event commences or otherwise initially occurs with respect to such Insignificant Subsidiary, and with such value remaining in effect for such Insignificant Subsidiary once determined); or”
1.14 Exhibit F-1 attached to the Credit Agreement is deleted in its entirety and Exhibit F-1 attached to this Amendment as Attachment 1 shall be inserted in the place thereof.
1.15 Exhibit F-2 attached to the Credit Agreement is deleted in its entirety and Exhibit F-2 attached to this Amendment as Attachment 2 shall be inserted in the place thereof.
SECTION 2. 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 counterparts of this Amendment from each Borrower, the Administrative Agent and the Majority Banks.
SECTION 3. Covenants, Representations and Warranties of the Borrowers.
3.1 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.
3.2 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 4. Reference to and Effect on the Credit Agreement.
4.1 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.
4.2 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.
4.3 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 5. 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 6. 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 7. 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 Agreement to be executed by their respective officers or representatives thereunto duly authorized, as of the date first above written.
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CATERPILLAR INC. | |||
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By: |
/s/ Xxxxx X. Xxxxxx | ||
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Name: |
Xxxxx X. Xxxxxx | ||
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Title: |
Treasurer | ||
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By: |
/s/ Xxxxx X. Xxxxxxxx | ||
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Name: |
Xxxxx X. Xxxxxxxx | ||
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Title: |
Executive Vice President and Chief Financial Officer | ||
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CITIBANK, N.A., as Administrative Agent | |||
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By: |
/s/ Xxxxx Xxx | ||
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Name: |
Xxxxx Xxx | ||
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Title: |
Authorized Signatory | ||
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CITIBANK, N.A., as a Bank | |||
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By: |
/s/ Xxxxx Xxx | ||
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Name: |
Xxxxx Xxx | ||
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Title: |
Authorized Signatory | ||
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SOCIETE GENERALE, as a Bank | |||
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By: |
/s/ Xxxx X.X. Xxxxxxx, Xx. | ||
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Name: |
Xxxx X.X. Xxxxxxx, Xx. | ||
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Title: |
Managing Director | ||
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COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Bank | |||
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By: |
/s/ Xxxxxxx Xxxxxxxxx | ||
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Name: |
Xxxxxxx Xxxxxxxxx | ||
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Title: |
Vice President | ||
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By: |
/s/ Xxxxx Wesemeier | ||
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Name: |
Xxxxx Wesemeier | ||
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Title: |
Assistant Vice President | ||
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LLOYDS TSB BANK PLC, as a Bank | |||
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By: |
/s/ Xxxxxxx Xxxxxxx | ||
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Name: |
Xxxxxxx Xxxxxxx | ||
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Title: |
Senior Vice President | ||
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By: |
/s/ Xxxxxx Xxxxx | ||
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Name: |
Xxxxxx Xxxxx | ||
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Title: |
Vice President | ||
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THE ROYAL BANK OF SCOTLAND PLC, as a Bank | |||
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By: |
/s/ L. Xxxxx Xxxxxx | ||
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Name: |
L. Xxxxx Xxxxxx | ||
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Title: |
SVP | ||
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HBSC BANK USA, NATIONAL ASSOCIATION, as a Bank | |||
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By: |
/s/ Xxxx X. Xxxxxx | ||
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Name: |
Xxxx X. Xxxxxx | ||
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Title: |
Managing Director | ||
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TORONTO DOMINION (NEW YORK) LLC, as a Bank | |||
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By: |
/s/ Xxxxx X. Xxxxx | ||
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Name: |
Xxxxx X. Xxxxx | ||
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Title: |
Authorized Signatory | ||
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BANCO BILBAO VIZCAYA ARGENTARIA S.A., NEW YORK BRANCH, as a Bank | |||
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By: |
/s/ Xxxxxxx Xxxx | ||
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Name: |
Xxxxxxx Xxxx | ||
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Title: |
Managing Director | ||
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By: |
/s/ Xxxxxxx D’Xxxx | ||
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Name: |
Xxxxxxx D’Xxxx | ||
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Title: |
Director | ||
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XXXXXXX SACHS BANK USA, as a Bank | |||
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By: |
/s/ Xxxxxx Xxxxxx | ||
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Name: |
Xxxxxx Xxxxxx | ||
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Title: |
Authorized signatory | ||
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Bank | |||
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx | ||
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Name: |
Xxxxxx Xxxxxxxxxxxx | ||
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Title: |
Authorized Signatory | ||
ATTACHMENT 1
EXHIBIT F-1
COMPLIANCE CERTIFICATE
CATERPILLAR INC.
To: The Banks which are parties to the Credit Agreement described below
This Compliance Certificate is furnished pursuant to that certain Credit Agreement (364-Day Facility) dated as of March 31, 2009, as the same may be amended, restated, supplemented or otherwise modified from time to time (the “Agreement”) among Caterpillar Inc. and Caterpillar Financial Services Corporation (collectively, the “Borrowers”), the Banks party thereto, and Citibank,
N.A., as administrative agent for the Banks. Capitalized terms used and not otherwise defined herein shall have the meanings attributed to such terms in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of Caterpillar Inc. (the “Borrower”).
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default with respect to the Borrower during or at the end of the accounting period covered by the attached financial statements or as of the date hereof.
4. As required pursuant to Section 5.03 of the Agreement, the Borrower’s Consolidated Net Worth, as of the end of the accounting period covered by the attached financial statements, is at least $9,000,000,000 as shown below.
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a. |
Consolidated Net Worth |
$ |
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(i) |
Stockholders’ equity |
$ |
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(ii) |
Accumulated Other Comprehensive Income |
$ |
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(iii) |
Pension and other post-retirement benefits balance within Accumulated Other Comprehensive Income |
$ |
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The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this _____ day of __________, 200_.
CATERPILLAR INC.
By:___________________________
Name:
Title:
ATTACHMENT 2
EXHIBIT F-2
COMPLIANCE CERTIFICATE
To: The Banks which are parties to the Credit Agreement described below
This Compliance Certificate is furnished pursuant to that certain Credit Agreement (364-Day Facility) dated as of March 31, 2009, as the same may be amended, restated, supplemented or otherwise modified from time to time (the “Agreement”) among Caterpillar Inc. and Caterpillar Financial Services Corporation (collectively, the “Borrowers”), the Banks party thereto, and Citibank,
N.A., as administrative agent for the Banks. Capitalized terms used and not otherwise defined herein shall have the meanings attributed to such terms in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of Caterpillar Financial Services Corporation (the “Borrower”).
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default with respect to the Borrower during or at the end of the accounting period covered by the attached financial statements or as of the date hereof.
4. As required pursuant to Section 5.04(a) of the Agreement, the Borrower’s Leverage Ratio as of the end of the accounting period covered by the attached financial statements, is not greater than 10.0 to 1, as shown below.
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a. |
Debt of CFSC and its Subsidiaries on a consolidated basis |
$ |
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b. |
CFSC’s Consolidated Net Worth |
$ |
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c. |
Leverage Ratio (a÷b) |
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5. As required pursuant to Section 5.04(b) of the Agreement, the ratio of (1) the CFSC’s profit excluding income taxes, Interest Expense and Net Gain/(Loss) From Interest Rate Derivatives to (2) Interest Expense, computed as of the end of the calendar quarter covered
by the attached financial statements for the rolling four-quarter period then most recently ended, is not less than 1.15 to 1, as shown below.
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a. |
Profit excluding income taxes, Interest Expense and excluding Net Gain/(Loss) From Interest Rate Derivatives |
$ |
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(i) |
Net Gain/(Loss) From Interest Rate Derivatives |
$ |
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b. |
Interest Expense |
$ |
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c. |
Ratio of profit excluding income taxes, Interest Expense and Net Gain/(Loss) From Interest Rate Derivatives to Interest Expenses (a÷b) |
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The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this _____ day of __________, 200_.
By:___________________________
Name:
Title:
