Registration No. - 333-_________
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CATERPILLAR INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
37-0602744
(IRS Employer Identification Number)
100 NE Adams Street, Peoria, Illinois
(Address of principal executive offices)
61629
(Zip Code)
Registrant's telephone number, including area code: (309) 675-1000
R. RENNIE ATTERBURY III
Vice President, General Counsel and Secretary
Caterpillar Inc.
100 NE Adams Street
Peoria, IL 61629-7310
Approximate Date of Commencement of Proposed Sale to the Public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: __
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: __
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: __
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. __
CALCULATION OF REGISTRATION FEE
Title of each Class of Securities to be Registered:
Debentures
Amount to be Registered<F1>
$500,000,000
Proposed Maximum Offering Price per Unit<F2>
$500,000,000
Proposed Maximum Aggregate Offering Price<F1><F2>
$500,000,000
Amount of Registration Fee
$151,515.15
<F1> In U.S. dollars or the equivalent thereof in foreign denominated
currency or a composite currency.
<F2> Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(a) under the Securities Act of 1933 and exclusive of
accrued interest, if any.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a) may determine.
[CATERPILLAR LOGO]
PROSPECTUS
$500,000,000
DEBT SECURITIES
Caterpillar Inc.
100 NE Adams Street
Peoria, IL 61629
(309) 675-1000
Caterpillar Inc. intends to offer at one or more times Debentures with a total
value not to exceed $500,000,000 and a maturity up to 100 years. We will
provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the supplements carefully
before you invest.
The information in this prospectus is not complete. We may not sell these
securities until the registration statement filed with the SEC is effective.
This prospectus is not an offer to sell nor is it seeking an offer to buy
these securities in any state where the offer or sale is not permitted.
These securities have not been approved by the Securities & Exchange
Commission or any state securities commission, nor have these organizations
passed upon the adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
The date of this prospectus is ____________________, 1997.
WHERE YOU CAN FIND MORE INFORMATION
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We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public from the SEC's web site at http://www.SEC.gov. Our common stock
and certain debt securities are listed on the New York Stock Exchange. Our
common stock is also listed on the Chicago and Pacific Stock Exchanges.
Information about us is also available at those locations.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference
is considered to be part of this prospectus, and later information that we
file with the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the Debentures. This prospectus is
part of a registration statement filed with the SEC.
* Annual Report on Form 10-K for the year ended December 31, 1995;
* Quarterly Reports on Form 10-Q for quarters ended March 31, June 30, and
September 30, 1996;
* Current Reports on Form 8-K filed on March 19, June 3, June 12, July 16,
October 15, December 11, December 16, 1996, and January 21 and February
18, 1997.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Caterpillar Inc.
100 N.E. Adams St.
Peoria, IL 61629
Attn: Corporate Secretary
(309)675-1000
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these Debentures in any state where the offer is not permitted.
You should not assume that the information in this prospectus or any
supplement is accurate as of any date other than the date on the front of
those documents.
THE COMPANY
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Caterpillar, through its employees and dealers, design, manufacture,
market, finance and provide support for Caterpillar machines and engines.
We believe our products help make progress possible around the world.
More information about Caterpillar is available on our web site at
http://www.CAT.com.
Construction, Mining and Agricultural Machinery: Caterpillar
construction machines are used to build, maintain and rebuild the world's
infrastructure - highways, dams, airports, water and sewer systems, office
complexes and housing developments. Our mining machines help extract and
deliver needed raw materials and our agricultural tractors till the world's
soil.
Engines: Caterpillar engines provide power to the world - for on-highway
trucks, ships and boats, locomotives, and construction, mining and
agricultural equipment. Through electrical power generating systems, they
supply power to developing or isolated areas. Other systems provide emergency
power to hospitals, schools, factories, office buildings and airports. A
Caterpillar subsidiary, Solar Turbines Incorporated, makes turbine engines
that are used to produce, process and transport crude oil and natural gas,
and to provide electrical power in many different industries.
Financial Products: Caterpillar Financial Services Corporation and its
subsidiaries offer a wide variety of financing options to help Caterpillar
customers worldwide acquire and use Caterpillar equipment. Caterpillar
Insurance Services Corporation provides various forms of insurance to
Caterpillar customers and dealers to help support their purchase and financing
of Caterpillar equipment.
PROSPECTUS SUPPLEMENT
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The Prospectus Supplement for each offering of debentures will contain
the specific information and terms for that offering. The Prospectus
Supplement may also add, update or change information contained in this
Prospectus. It is important for you to read both this Prospectus and the
Prospectus Supplement in making your investment decision.
USE OF PROCEEDS
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The net proceeds from the sale of securities will be used for general
corporate purposes. General corporate purposes may include acquisitions,
repurchases of common stock, additions to working capital, capital
expenditures, and retirement of debt.
RATIO OF PROFIT TO FIXED CHARGES
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The Ratio of Profit to Fixed Charges for each of the periods indicated is
as follows:
Twelve months ended December 31,
1996 4.5
1995 4.0
1994 3.8
1993 2.4
1992 <F1>
<F1>Because of pretax losses for the year ended December 31, 1992, profit
was not sufficient to cover fixed charges. The coverage deficiency was
approximately $341 million.
These ratios include Caterpillar, our consolidated subsidiaries, and 50%-
owned unconsolidated affiliated companies. Profit is determined by adding
income from continuing operations, income taxes and fixed charges. Fixed
charges include interest, other costs related to borrowed funds and a portion
of rentals representing interest.
DESCRIPTION OF THE DEBENTURES
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General
We will issue the debentures under an indenture between us and the
Trustee, Citibank, N.A., dated May 1, 1987, and supplemented June 1, 1989, May
15, 1992, and December 16, 1996. This Prospectus briefly outlines some of the
indenture provisions. If you would like more information on these provisions,
review the indenture and its supplements that we filed with the SEC as
Exhibits to the registration statement containing this prospectus. See Where
You Can Find More Information on how to locate the indenture and the
supplements. You may also review the indenture at the Trustee's offices
located in New York, New York.
The indenture does not limit the amount of debentures that may be issued
and each series of debentures may differ as to their terms. The debentures
may be issued up to the principal amount that may be authorized by us and may
be in any currency or currency unit designated by us.
The debentures will be unsecured and unsubordinated and will rank equally
with all our unsecured and unsubordinated indebtedness. The debentures will
not be subject to any conversion, amortization, or sinking fund. It is
anticipated that the debentures will be "book-entry," represented by a
permanent global certificate registered in the name of the Depository Trust
Company or its nominee. However, we reserve the right to issue the securities
in certificate form registered in the name of the security holders.
For current information on our debt outstanding see our most recent Form
10-K and 10-Q. See Where You Can Find More Information.
Conditional Right to Advance Maturity and Tax Event Redemption
We plan to deduct interest paid on the Debentures for federal income tax
purposes. However, President Clinton's budget proposal for Fiscal Year 1997,
released March 19, 1996, had proposed tax law changes that, among other
things, would prohibit us from deducting interest payments on debt with a
maturity of more than 40 years. On March 29, 1996, the Chairmen of the Senate
Finance Committee and the House Ways and Means Committee issued a joint
statement that the proposed legislation if enacted would not be effective
prior to the date of appropriate congressional action. Senator Daniel Patrick
Moynihan and Representatives Sam M. Gibbons and Charles B. Rangel wrote
letters to the Treasury Department concurring with the joint statement. The
proposed legislation was not enacted by the 104th Congress. There can be no
assurance that the proposed legislation or similar legislation affecting our
ability to deduct interest paid on the Debentures will not be enacted in the
future. There also can be no assurance that this type of legislation would
not have a retroactive effect.
If independent tax counsel tells us that based on governmental action
there is some risk interest on the Debentures will not be deductible for
federal income tax purposes, we will have the right to advance the maturity
date on the Debentures to the minimum extent required for interest on the
Debentures to be deductible. If we do so, we will mail notice of the advanced
maturity to each record holder of the Debentures within 60 days of having
received tax counsel's opinion.
We believe the Debentures should constitute indebtedness for federal
income tax purposes under current law and that advancing the maturity date as
described above would not be a taxable event to holders. You should be aware,
however, that exercise of our right to advance the maturity date would be a
taxable event to holders if the Debentures are treated as equity for purposes
of federal income taxation before the maturity date is advanced.
If the maturity date is advanced as described above and tax counsel
believed there was still a risk that interest on the debentures may not be
deductible, we would have the right to redeem the debentures in whole within
90 days of tax counsel's opinion. The redemption price would be equal to the
greater of:
* 100% of the principal amount of the Debentures; or
* the sum, as determined by the Quotation Agent, of the present values of the
principal amount and the remaining scheduled payments of interest from the
redemption date, in each case discounted to the redemption date on a semi-
annual basis at the Adjusted Treasury Rate, plus, in each such case,
accrued interest thereon to the date of redemption.
We would mail notice of any redemption at least 30 days but not more than
60 days before the redemption date to each Debenture holder. Unless we
defaulted in payment of the redemption price, on and after the redemption
date, interest would no longer accrue on the Debentures called for redemption.
For purposes of this discussion:
Adjusted Treasury Rate means, for any redemption date, the rate per annum
equal to the semi-annual yield to maturity of the Comparable Treasury Issue,
calculated on the third Business Day preceding such redemption date using a
price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption
date plus ___%.
Comparable Treasury Issue means the United States Treasury security
selected by the Quotation Agent as having a maturity that would be used, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with
the Remaining Life of the Debentures.
Quotation Agent means the Reference Treasury Dealer appointed by the
Trustee after consultation with us.
Comparable Treasury Price means, with respect to any redemption date, the
average of five Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or, if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer Quotations means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
Exchange, Registration, Transfer, and Payment
Principal and interest on the Debentures will be payable, and the
exchange or transfer of Debentures will be registerable at a location
designated in the Prospectus Supplement. No service charge will be applied
for a registration of transfer or exchange of Debentures except to cover
tax or any governmental charge.
Global Securities
Debentures may be issued in the form of one or more Global Securities
that will be deposited with The Depository Trust Company, New York, New York
("DTC"). If this is done, we will not issue certificates to each holder. One
or more global securities would be issued to DTC who would keep a computerized
record of its participants (for example, your broker) whose clients have
purchased the securities. The participant would then keep a record of its
clients who purchased the securities. A global security may not be
transferred; except that DTC, its nominees, and their successors may transfer
a global security as a whole to one another.
Beneficial interests in global securities will be shown on, and transfers
of global securities will be made only through, records maintained by DTC and
its participants.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the United States Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered under Section 17A of the Securities Exchange Act
of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also records the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through computerized records for Direct Participant's accounts.
This eliminates the need to exchange certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
Direct Participant. The rules that apply to DTC and its participants are on
file with the SEC.
DTC is owned by a number of its Direct Participants and by the New York
Stock Exchange, Inc., The American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and
the Trustee will treat DTC's nominee as the owner of the global securities for
all purposes. Accordingly, we, the Trustee, and the paying agent will have no
direct responsibility or liability to pay amounts due on the securities to
owners of beneficial interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Direct Participants' accounts on the payment date
according to their respective holdings of beneficial interests in the global
securities as shown on DTC's records. In addition, it is DTC's current
practice to assign any consenting or voting rights to Direct Participants
whose accounts are credited with securities on a record date, by using an
omnibus proxy. Payments by participants to owners of beneficial interests in
the global securities, and voting by participants, will be governed by the
customary practices between the participants and owners of beneficial
interests, as is the case with securities held for the account of customers
registered in "street name." However, payments will be the responsibility of
the participants and not of DTC, the trustee, or us.
Securities represented by a global security would be exchangeable for
Debenture certificates with the same terms in authorized denominations
only if:
* DTC notifies us that it is unwilling or unable to continue as depositary or
if DTC ceases to be a clearing agency registered under applicable law and a
successor depository is not appointed by us within 90 days;
* We deliver to the Trustee an order that the global security shall be
exchangeable; or
* There is a continuing Event of Default, as described below, regarding the
securities.
Certain Restrictive Covenants
The indenture requires us to comply with certain restrictive covenants.
These covenants apply to us and Restricted Subsidiaries maintained by us.
What is a Restricted or Unrestricted Subsidiary?
A "Restricted Subsidiary" is defined as any subsidiary other than an
Unrestricted Subsidiary and any Unrestricted Subsidiary designated by our
Board of Directors after May 1, 1987, as a Restricted Subsidiary.
"Unrestricted Subsidiary" is defined as:
* any subsidiary acquired or organized by us after May 1, 1987, as long as
that subsidiary is not a successor to a Restricted Subsidiary.
* any subsidiary with principal business and assets located outside the United
States (its territories and possessions) and Canada;
* any subsidiary with the principal business of financing our dealers and
distributors, as well as acquisitions and dispositions of our products
by dealers, distributors, or other customers;
* any subsidiary with the principal business of owning, leasing, dealing in or
developing real property; and
* any subsidiary with substantially all assets consisting of securities of
subsidiaries described above.
Other Definitions
Important Property: means any manufacturing plants or facilities of us or
any Restricted Subsidiary located in the U.S., Canada, or Puerto Rico having a
gross book value (without deduction for depreciation) in excess of 1% of
Consolidated Net Tangible Assets, other than any plant or other facility our
Board believes is not important to our business as a whole.
Consolidated Net Tangible Assets: means the total of all assets appearing on
a consolidated balance sheet of Caterpillar and its consolidated subsidiaries
prepared in accordance with generally accepted accounting principles,
excluding the sum of (1) all current liabilities and (2) all goodwill,
patents, copyrights, trademarks and other like intangibles.
Secured Debt: means indebtedness secured by a mortgage, pledge, lien,
security interest or encumbrance on:
* any Important Property of Caterpillar or any Restricted Subsidiary; or
* any shares of stock or indebtedness of a Restricted Subsidiary.
Value: means with respect to a Sale and Leaseback Transaction, an amount
equal to the greater of:
* the net proceeds of the sale of the property leased pursuant to the Sale and
Leaseback Transaction; or
* the fair value of the property at the time of the Sale and Leaseback
Transaction, as determined by our Board of Directors.
(In either case, the amount derived is first divided by the term of the
lease and then multiplied by the number of years remaining on the lease at the
time of determination.)
Restrictions on Secured Debt (Indenture Section 1007)
The Indenture prohibits us and our Restricted Subsidiaries from creating
Secured Debt (without securing the Debentures equally and ratably with Secured
Debt), with the following exceptions:
* certain mortgages, pledges, liens, security interests or encumbrances to
secure payment of all or part of the cost of construction or improvement of
our property or the property of a Restricted Subsidiary;
* mortgages, pledges, liens, security interests or encumbrances on property
acquired, whether or not assumed by us or a Restricted Subsidiary;
* mortgages, pledges, liens, security interests or encumbrances on property,
stock, or indebtedness of a Restricted Subsidiary at the time it becomes
such;
* mortgages, pledges, liens, security interests or encumbrances on property of
a corporation merged with us or a Restricted Subsidiary or at the time of a
disposition of substantially all of the property of another corporation to
us or a Restricted Subsidiary;
* mortgages, pledges, liens, security interests, or encumbrances on our
property or the property of a Restricted Subsidiary in favor of a
governmental entity pursuant to contract or statute or to secure certain
indebtedness;
* any extension, renewal or replacement of any mortgage, pledge, lien or
encumbrance referred to above;
* any mortgage, pledge, lien, security interest, or encumbrance securing debt
owed by us or a Restricted Subsidiary to us or a Restricted Subsidiary.
In addition to these exceptions, we or a Restricted Subsidiary may
create, assume, or guarantee other Secured Debt without securing the
Debentures if the total amount of Secured Debt outstanding and value of Sale
and Leaseback Transactions at the time does not exceed 10% of Consolidated Net
Tangible Assets.
Restrictions on Sale and Leaseback Transactions (Indenture Section 1008)
Neither we nor any Restricted Subsidiary can sell or transfer (except to
us or a Restricted Subsidiary) any Important Property we own with the
intention of taking back a lease on the property, except for a lease not
exceeding three years, with the following exceptions:
* we or a Restricted Subsidiary may incur Secured Debt equal to the amount
received on a sale or transfer secured by a mortgage on the property to be
leased without equally and ratably securing the Debentures;
* we or a Restricted Subsidiary apply an amount equal to the value of the
property leased to the retirement, within 120 days after the effective date
of the arrangement, of indebtedness for money borrowed by us or a Restricted
Subsidiary recorded as funded debt as of the date of its creation and which,
in the case of indebtedness of us, is not subordinated in right of payment
to the prior payment of the Debentures. The amount applied to the
retirement of that indebtedness shall be reduced by (i) the principal amount
of any Debentures delivered within 120 days of the effective date to
the Trustee for retirement and cancellation, and (ii) the principal amount
of the indebtedness, other than Debentures, retired by us or a
Restricted Subsidiary within 120 days of the effective date of the
arrangement. No retirement referred to in this clause may be by payment
at maturity or a mandatory prepayment provision.
Restriction on Transfer of Important Property (Indenture Section 1009)
Neither we nor a Restricted Subsidiary can transfer Important Property to
an Unrestricted Subsidiary except in limited circumstances. The transfer can
occur if we apply an amount equal to the fair value of the property at the
time of transfer (as determined by our Board of Directors) to the retirement
of indebtedness of us or a Restricted Subsidiary that is recorded as funded
debt and is not subordinated in right of payment to the Debentures. The debt
retirement must occur within 120 days of the transfer.
Events of Default (Indenture Sections 501, 502, 601, 602, and 603)
Unless we indicate otherwise in a Prospectus Supplement, the following
events are defined in the indenture as "Events of Default" regarding the
Debentures:
* failure to pay principal or premium on any Debenture when due;
* failure to pay interest on a Debenture when due, continued for 60 days;
* failure to deposit any sinking fund payment when due;
* failure to perform any other covenant in the indenture for 60 days after we
have received written notice of the failure;
* certain events in bankruptcy, insolvency or reorganization; and
* any other Event of Default stipulated.
Unless stated otherwise in a Prospectus Supplement, any Event of Default
on a particular series of Debentures is not necessarily an Event of Default on
another series of Debentures.
If an Event of Default occurs on outstanding Debentures of a particular
series and continues, the Trustee or holders of at least 25% of that series'
Debentures may declare the principal amount of all Debentures in the series
due and payable. Under certain circumstances, holders of a majority of the
Debentures in the series may rescind that declaration.
The Trustee must within 90 days after a default occurs, notify the
holders of Debentures of that series of the default if we have not remedied
it. The Trustee may withhold notice to the holders of any default (except in
the payment of principal or interest) if it in good faith considers such
withholding in the interest of holders. We are required to file an annual
certificate with the Trustee, signed by an officer, about any default by us
under any provisions of the indenture.
Subject to the provisions of the indenture relating to its duties in case
of default, the Trustee shall be under no obligation to exercise any of its
rights or powers under the indenture at the request, order or direction of any
holders unless such holders offer the Trustee reasonable indemnity. Subject
to the provisions for indemnification, the holders of a majority in principal
amount of the Debentures may direct the time, method and place of conducting
any proceedings for any remedy available to, or exercising any trust or power
conferred on, the Trustee with respect to such Debentures.
Modification of Indenture (Indenture Section 902)
Under the Indenture, our rights and obligations and the rights of the
holders of debt securities may be changed. Certain changes require the
consent of the holders of not less than 66(% in aggregate principal amount
of the outstanding debt of all series to be affected, voting as one class.
However, the following changes may not be made without the consent of each
holder of the Debentures:
* changes to the stated maturity date of the principal or any interest
installment;
* reductions in the principal amount or interest due;
* changes to the place or currency regarding payment of principal;
* impairment of the right to institute suit for the enforcement of
payment;
* reduction of the stated percentage of holders necessary to modify the
indenture; or
* modifications to any of these requirements or to reduce the percentage
of outstanding Debentures necessary to waive compliance with certain
provisions of the Indenture or for the waiver of certain defaults.
Consolidation, Merger, or Sale (Indenture Section 801)
We cannot merge with another company or sell or lease substantially all
of our property to another company unless:
* we as the continuing corporation or the successor corporation expressly
assumes the payment of principal and interest on the Debentures and the
performance and observance of all the covenants and conditions of the
indenture binding on us;
* we, or the successor corporation, are not immediately after the merger,
consolidation, or sale in default in the performance of a covenant or
condition in the indenture; and
* if as a result of the merger, consolidation or sale we become subject to a
mortgage, pledge, lien, security interest or other encumbrance not permitted
by the Indenture, we or the successor corporation take steps necessary to
secure the Debentures equally and ratably with all indebtedness secured.
Defeasance (Indenture Section 1301 through 1305)
We may be discharged from our obligations on the Debentures of a series
at any time before the stated maturity if we deposit with the Trustee
money or certain equivalents in an amount sufficient to pay the principal
and interest on the Debentures. Under Federal income tax law as of the
date of this prospectus, such deposit and discharge may be treated as an
exchange of the related Debentures. Each holder may be required to recognize
gain or loss equal to the difference between the holder's cost or other tax
basis for the Debentures and the value of the holder's interest in the trust.
Such holders might be required to include in income a different amount than
would be includable without the discharge. Prospective investors are urged to
consult their own tax advisers as to the consequences of such a deposit and
discharge, including the applicability and effect of tax laws other than the
Federal income tax law.
PLAN OF DISTRIBUTION
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We may sell the Debentures (a) through underwriters or dealers;
(b) directly to one or more purchasers; or (c) through agents. The Prospectus
Supplement will include the names of underwriters, dealers or agents
retained. The Prospectus Supplement also will include the purchase price of
the Debentures, Caterpillar's proceeds from the sale, any underwriting
discounts or commissions and other items constituting underwriters'
compensation.
The underwriters will acquire the Debentures for their own account. They
may resell the Debentures in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters will be
obligated to purchase all the securities offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
Underwriters, dealers, and agents that participate in the distribution of
the Debentures may be underwriters as defined in the Securities Act of 1933
("Act"), and any discounts or commissions received by them from us and any
profit on the resale of the Debentures by them may be treated as underwriting
discounts and commissions under the Act.
We may have agreements with the underwriters, dealers, and agents to
indemnify them against certain civil liabilities, including liabilities under
the Act, or to contribute with respect to payments which the underwriters,
dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
businesses.
LEGAL OPINIONS
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Richard P. Konrath, our Securities Counsel, will issue an opinion about
the legality of the Debentures for us. Underwriters and agents may have their
own counsel issuing an opinion for them. They may rely on the opinion of our
counsel as to matters of Illinois law.
EXPERTS
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Price Waterhouse LLP, independent accountants, audited our financial
statements and schedules incorporated by reference in this prospectus and
elsewhere in the registration statement. These documents are incorporated by
reference in reliance upon the authority of Price Waterhouse as experts in
accounting and auditing in giving the report.
TABLE OF CONTENTS
Where You Can Find More Information
The Company
Prospectus Supplement
Use of Proceeds
Ratio of Profit to Fixed Charges
Description of the Debt Securities
Plan of Distribution
Legal Opinions
Experts
$500,000,000
[CAT LOGO]
DEBENTURES
_______________________
PROSPECTUS SUPPLEMENT
___________, 1997
_______________________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration Fee $151,515.15
Accountants' Fees and Expenses 25,000.00
Trustee Fees and Expenses 25,000.00
Debt Rating Agency Fees 250,000.00
Printing and Delivery Expenses 50,000.00
Legal Fees and Expenses 75,000.00
Miscellaneous Expenses 50,000.00
Total $626,515.15
All except the first item are estimates.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware Corporation Law and our Bylaws provide for
indemnification of officers and directors under certain circumstances.
Insurance carried by us provides (within limits and subject to certain
exclusions) for reimbursement of amounts which (a) we may be required to pay
as indemnities to officers or directors for claims made against them and (b)
individual directors, officers and certain employees may become legally
obligated to pay as the result of acts committed while acting in their
corporate fiduciary capacities.
The underwriting and distribution agreements may provide for the
indemnification of our officers and directors under certain circumstances.
Item 16. Exhibits
Reference is made to the Exhibit Index filed as part of this Registration
Statement.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement(or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of the securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8, or
Form F-3 and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Peoria, State of Illinois, on the
12th day of February, 1997.
CATERPILLAR INC.
(Registrant)
By: /s/R. R. ATTERBURY III
R. R. Atterbury III, Secretary
Date: February 19, 1997
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
February 19, 1997 /s/DONALD V. FITES Chairman of the Board, Director
and Chief Executive Officer
February 19, 1997 /s/GLEN A. BARTON Group President
February 19, 1997 /s/GERALD S. FLAHERTY Group President
February 19, 1997 /s/JAMES W. OWENS Group President
February 19, 1997 /s/RICHARD L. THOMPSON Group President
February 19, 1997 /s/DOUGLAS R. OBERHELMAN Vice President and
Chief Financial Officer
February 19, 1997 /s/ROBERT R. GALLAGHER Controller and
Chief Accounting Officer
February 19, 1997 /s/LILYAN H. AFFINITO Director
February 19, 1997 /s/JOHN W. FONDAHL Director
February 19, 1997 /s/DAVID R. GOODE Director
February 19, 1997 /s/PETER A. MAGOWAN Director
February 19, 1997 /s/GORDON R. PARKER Director
February 19, 1997 /s/GEORGE A. SCHAEFER Director
February 19, 1997 /s/JOSHUA I. SMITH Director
February 19, 1997 /s/CLAYTON K. YEUTTER Director
EXHIBIT INDEX
Exhibit
Number Description
1 Form of Underwriting Agreement
4.1 Indenture dated as of May 1, 1987, between the Registrant and The
First National Bank of Chicago, as Trustee.
4.2 First Supplemental Indenture, dated as of June 1, 1989, between
Caterpillar Inc. and The First National Bank of Chicago, as
Trustee.
4.3 Appointment of Citibank, N.A. as Successor Trustee, dated October
1, 1991, under the Indenture, as supplemented, dated May 1, 1987.
4.4 Second Supplemental Indenture, dated as of May 15, 1992, between
Caterpillar Inc. and Citibank, N.A., as Successor Trustee.
4.5 Third Supplemental Indenture, dated as of December 16, 1996,
between Caterpillar Inc. and Citibank, N.A., as Successor Trustee.
4.6 Rights Agreement dated as of December 11, 1996, between
Caterpillar Inc. and First Chicago Trust Company of New York
(incorporated by reference from Exhibit 1 to Form 8-A filed
December 11, 1996, Commission File No. 1-768).
5 Opinion of Richard P. Konrath, Securities Counsel for Caterpillar
Inc., as to the legality of debt securities.
12 Statement Setting Forth Computation of Ratios of Profit to Fixed
Charges
23.1 The consent of Richard P. Konrath, Securities Counsel for
Caterpillar Inc., is contained in his opinion filed as Exhibit 5
to this Registration Statement.
23.2 Consent of Price Waterhouse LLP
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Citibank, N.A.
Exhibit 1
CATERPILLAR INC.
BASIC TERMS OF UNDERWRITING AGREEMENT
[ ]
as Representative(s) of the several Underwriters
Ladies and Gentlemen:
Caterpillar Inc. (the "Company"), confirms its agreement with
_____________________________ ("_____________") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom _____________ is acting as
representative(s) (in such capacity, the "Representative(s)"), with respect to
the issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set forth in
said Schedule A of $500 million aggregate principal amount of the Company's
debt securities (the "Debt Securities"), and with respect to the grant by the
Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of an additional
principal amount of Debt Securities to cover over-allotments, if any. The
aforesaid principal amount of Debt Securities (the "Initial Securities") to
be purchased by the Underwriters and all or any part of the principal amount
of Debt Securities subject to the option described in Section 2(b) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities".
The Securities are to be issued pursuant to an indenture dated as of May 1,
1987, as supplemented (the "Indenture") between the Company and Citibank,
N.A., as trustee (the "Trustee"). The term "Indenture," as used herein,
includes the Officer's Certificate (as defined in the Indenture) establishing
the form and terms of the Securities pursuant to Section 201 of the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative(s) deem(s) advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_________) covering
the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company
has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file a term sheet (a "Term Sheet") in accordance with the
provisions of Rule 434 and Rule 424(b). The information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each prospectus used before such registration
statement became effective, and any prospectus that omitted, as applicable,
the Rule 430A Information or the Rule 434 Information, that was used after
such effectiveness and prior to the execution and delivery of this Agreement,
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto, schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is
herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated ________, 1997
together with the Term Sheet and all references in this Agreement to the date
of the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which
is incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations"),
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company
in writing by any Underwriter through ______________ expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at the Closing Time (and if any Option
Securities are purchased, at the Date of Delivery), did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and
the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information included in
the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C) except for
regular quarterly dividends on the Common Stock in amounts per share that are
consistent with past practice, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X) has
been duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none
of the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are the subsidiaries listed
on Schedule C hereto.
(viii) Capitalization. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when duly
executed and delivered by the Company and the Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the
Company and, when authenticated, issued and delivered in the manner provided
for in the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and will be
in substantially the respective forms filed or incorporated by reference, as
the case may be, as exhibits to the Registration Statement.
(xiii) Authorization and Description of Common Stock. The Common
Stock conforms to all statements relating thereto contained or incorporated by
reference in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same. Upon issuance and delivery of the
Securities in accordance with this Agreement and the Indenture, the Securities
will be convertible at the option of the holder thereof for shares of Common
Stock in accordance with the terms of the Securities and the Indenture; the
shares of Common Stock issuable upon conversion of the Securities have been
duly authorized and reserved for issuance upon such conversion by all
necessary corporate action and such shares, when issued upon such conversion,
will be validly issued and will be fully paid and non-assessable; no holder of
such shares will be subject to personal liability by reason of being such a
holder; and the issuance of such shares upon such conversion will not be
subject to the preemptive or other similar rights of any securityholder of the
Company.
(xiv) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments") except for
such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated herein and in
the Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption "Use of Proceeds" and the issuance of the
shares of Common Stock issuable upon conversion of the Securities) and
compliance by the Company with its obligations hereunder and under the
Indenture and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not result in a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or by-
laws of the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xv) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xvi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any subsidiary, which
is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially
and adversely affect the properties or assets thereof or the consummation of
the transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party or
of which any of their respective property or assets is the subject which are
not described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xvii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be filed
as exhibits thereto which have not been so described and filed as required.
(xviii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder,
the issuance of shares of Common Stock upon conversion of Securities or the
consummation of the transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture by the Company, except
such as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws and except for the
qualification of the Indenture under the 1939 Act.
(xx) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xxi) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xxii) Compliance with Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xxiii) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company and
its subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its subsidiaries and
(D) there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative(s) or
to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price set forth in Schedule B, the aggregate
principal amount of Initial Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional principal amount of Initial
Securities which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional principal amount of
Securities at the same price per share set forth in Schedule B for the Initial
Securities, plus accrued interest, if any, from the Closing Date to the date
of Delivery (as defined below). The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Representative(s) to the Company setting forth the number of
Option Securities as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall
be determined by the Representative(s), but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number
of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
underwriters' counsel, or at such other place as shall be agreed upon by the
Representative(s) and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with
the provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative(s) and the
Company (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-
mentioned offices, or at such other place as shall be agreed upon by the
Representative(s) and the Company, on each Date of Delivery as specified in
the notice from the Representative(s) to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representative(s) for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representative(s), for its account,
to accept delivery of, receipt for, and make payment of the purchase price
for, the Initial Securities and the Option Securities, if any, which it has
agreed to purchase. ______________, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations
($1,000 or integral multiples thereof) and registered in such names as the
Representative(s) may request in writing at least one full business day before
the Closing Time or the relevant Date of Delivery, as the case may be. The
certificates [,which may be in temporary form,] for the Initial Securities
and the Option Securities, if any, will be made available for examination and
packaging by the Representative(s) in The City of New York not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representative(s)
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments The Company will give the Representative(s)
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative(s) with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representative(s) or counsel for
the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative(s) and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative(s),
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities and the shares of
Common Stock issuable upon conversion of Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions as
the Representative(s) may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration
Statement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement. The Company will also supply the
Underwriters with such information as is necessary for the determination of
the legality of the Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities or the issuance or delivery of the
Common Stock issuable upon conversion thereof, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters and the certificates for the Common Stock issuable upon
conversion thereof, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities and
the Common Stock under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any
amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (ix) the fees and expenses of any transfer agent
or registrar for the Common Stock, and (x) any fees payable in connection
with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative(s) in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if
the Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representative(s) shall have received the favorable opinion, dated as of
Closing Time, of Richard P. Konrath, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative(s) shall have received the favorable opinion, dated as of
Closing Time, of _________________, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in clauses (i), (ii), (vi)
through (ix), inclusive, (x) (solely as to preemptive or other similar rights
arising by operation of law or under the charter or by-laws of the Company),
(xi) through (xiv), inclusive, (xvii), (xix) (solely as to the information in
the Prospectus under "Description of Capital Stock -- Common Stock") and the
penultimate paragraph of Exhibit A hereto. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York [and] the federal law of the
United States [and the General Corporation Law of the State of Delaware],
upon the opinions of counsel satisfactory to the Representative(s). Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates
of officers of the Company and its subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative(s) shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative(s) shall have received from Price Waterhouse LLP
a letter dated such date, in form and substance satisfactory to the
Representative(s), together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative(s)
shall have received from Price Waterhouse LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall be
rated at least ________ by Moody's Investor's Service Inc. and _________ by
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., and the
Company shall have delivered to the Representative(s) a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory
to the Representative(s), confirming that the Securities have such ratings;
and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the Company's
other securities by any "nationally recognized statistical rating agency", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that it
has under surveillance or review its rating of the Securities or any of the
Company's other securities.
(h) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representative(s) shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Richard P. Konrath, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
________________, counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(iv) Bring-down Comfort Letter. A letter from
_____________________, in form and substance satisfactory to the
Representative(s) and dated such Date of Delivery, substantially in the same
form and substance as the letter furnished to the Representative(s) pursuant
to Section 5(f) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(v) No Downgrading. Subsequent to the date of this Agreement, no
downgrading shall have occurred in the rating accorded the Securities or of
any of the Company's other securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
ratings of any of the Company's securities.
(i) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance
to the Representative(s) and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representative(s) by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections
1, 6, 7 and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ______________),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through ______________ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a)[(1)] of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ______________ expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a)[(1)] above, counsel to the indemnified parties shall be selected by
______________, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Initial Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative(s) may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative(s), impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, Chicago Stock
Exchange, or the Pacific Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representative(s) shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representative(s)
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased on such date,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after the
Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option
Securities, as the case may be, either the Representative(s) or the Company
shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative(s) at
________________________________________________________, attention of
__________________; and notices to the Company shall be directed to it at is
corporate offices in Peoria, Illinois, attention of Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
CATERPILLAR INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
INDENTURE
Dated as of May 1, 1987
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of May 1, 1987
between
Caterpillar Inc.
and
The First National Bank of Chicago, Trustee
Trust Indenture Act Section Indenture Section
310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
311(a) 613(a)
(b) 613(b)
(b)(2) 703(a)(2)
703(b)
312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
313(a) 703(a)
(b) 703(b)
(c) 703(a), 703(b)
(d) 703(c)
314(a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315(a) 601(a)
(b) 602
703(a)(6)
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
317(a)(1) 503
(a)(2) 504
(b) 1003
318(a) 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
TABLE OF CONTENTS
PARTIES 1
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINIATIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act 2
Affiliate; control 2
Authenticating Agent 2
Board of Directors 2
Board Resolutions 2
Business Day 2
Commission 2
Company 3
Company Request; Company Order 3
Consolidated Net Tangible Assets 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Event of Default 3
Holder 3
Important Property 3
Indenture 4
interest 4
Interest Payment Date 4
Maturity 4
Officers' Certificate 4
Opinion of Counsel 4
Original Issue Discount Security 4
Outstanding 4
Paying Agent 5
Person 5
Place of Payment 5
Predecessor Security 5
Redemption Date 6
Redemption Price 6
Regular Record Date 6
Responsible Officer 6
Restricted Subsidiary 6
Secured Debt 6
Securities 6
Security Register and Security Registrar 6
Special Record Date 7
Stated Maturity 7
Subsidiary 7
Trustee 7
Trust Indenture Act 7
Unrestricted Subsidiary 7
U.S. Government Obligations 8
Vice President 8
Section 102. Compliance Certificates and Opinions 8
Section 103. Form of Documents Delivered to Trustee 9
Section 104. Acts of Holders 10
Section 105. Notices, Etc., to Trustee and Company 10
Section 106. Notice to Holders, Waiver 11
Section 107. Conflict with Trust Indenture Act 11
Section 108. Effect of Headings and Table of Contents 12
Section 109. Successors and Assigns 12
Section 110. Separability Clause 12
Section 111. Benefits of Indenture 12
Section 112. Governing Law 12
Section 113. Legal Holidays 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally 13
SECTION 202. Form of Face of Security 13
SECTION 203. Form of Reverse Security 16
SECTION 204. Form of Trustee's Certificate of Authentication 20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series 20
SECTION 302. Denominations 22
SECTION 303. Execution, Authentication, Delivery and Dating 23
SECTION 304. Temporary Securities 24
SECTION 305. Registration, Registration of Transfer and
Exchange 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 26
SECTION 307. Payment of Interest, Interest Rights Preserved 27
SECTION 308. Persons Deemed Owners 28
SECTION 309. Cancellation 29
SECTION 310. Computation of Interest 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture 29
SECTION 402. Application of Trust Money 30
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 31
SECTION 502. Acceleration of Maturity; Rescission and
Annulment 32
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 33
SECTI0N 504. Trustee May File Proofs of Claim 34
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities 35
SECTION 506. Application of Money Collected 36
SECTION 507. Limitation on Suits 36
SECTI0N 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest 37
SECTION 509. Restoration of Rights and Remedies 37
SECTION 510. Rights and Remedies Cumulative 37
SECTION 511. Delay or Omission Not Waiver 38
SECTI0N 512. Control by Holders 38
SECTION 513. Waiver of Past Defaults 38
SECTION 514. Undertaking for Costs 39
SECTION 515. Waiver of Stay or Extension Laws 39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities 40
SECTION 602. Notice of Defaults 41
SECTION 603. Certain Rights of Trustee 42
SECTION 604. Not Responsible for Recitals or Issuance
of Securities 43
SECTION 605. May Hold Securities 43
SECTION 606. Money Held in Trust 43
SECTION 607. Compensation and Reimbursement 43
SECTION 608. Disqualification; Conflicting Interests 44
(a) Elimination of Conflicting Interest or
Resignation 44
(b) Notice of Failure to Eliminate Conflicting
Interest or Resign 44
(c) "Conflicting Interest" Defined 44
(d) Definitions of Certain Terms Used in This
Section 48
(e) Calculation of Percentages of Securities 49
SECTION 609. Corporate Trustee Required; Eligibility 51
SECTION 610. Resignation and Removal; Appointment of
Successor 51
SECTION 611. Acceptance of Appointment by Successor 53
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business 54
SECTION 613. Preferential Collection of Claims Against
Company 55
(a) Segregation and Apportionment of Certain
Collections by Trustee, Certain Exceptions 55
(b) Certain Creditor Relationships Excluded
from Segregation and Apportionment 57
(c) Definitions of Certain Terms Used In
This Section 58
SECTION 614. Appointment of Authenticating Agent 59
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders 61
SECTION 702. Preservation of Information; Communications
to Holders 62
SECTION 703. Reports by Trustee 63
SECTION 704. Reports by Company 65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms 66
SECTION 802. Successor Corporation Substituted 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without
Consent of Holders 67
SECTION 902. Supplemental Indentures with Consent of Holders 68
SECTION 903. Execution of Supplemental Indentures 70
SECTION 904. Effect of Supplemental Indentures 70
SECTION 905. Conformity with Trust Indenture Act 70
SECTION 906. Reference in Securities to Supplemental
Indentures 70
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest 71
SECTION 1002. Maintenance of Office or Agency 71
SECTION 1003. Money for Securities Payments to Be
Held in Trust 71
SECTION 1004. Corporate Existence 73
SECTION 1005. Maintenance of Properties 73
SECTION 1006. Payment of Taxes and Other Claims 74
SECTION 1007. Restriction on Creation of Secured Debt 74
SECTION 1008. Restriction on Sale and Leaseback Transactions 76
SECTION 1009. Restriction on Transfer of Important Property
to Unrestricted Subsidiary 77
SECTION 1010. Certificate of Officers as to Default 77
SECTION 1011. Waiver of Certain Covenants 78
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article 78
SECTION 1102. Election to Redeem; Notice to Trustee 78
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed 79
SECTION 1104. Notice of Redemption 79
SECTION 1105. Deposit of Redemption Price 80
SECTION 1106. Securities Payable on Redemption Date 80
SECTION 1107. Securities Redeemed in Part 80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article 81
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities 81
SECTION 1203. Redemption of Securities for Sinking Fund 82
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance 82
SECTION 1302. Defeasance and Discharge 82
SECTION 1303. Covenant Defeasance 83
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance 83
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions 85
TESTIMONIUM 87
SIGNATURES AND SEALS 87
ACKNOWLEDGMENTS 88
INDENTURE, dated as of May 1, 1987, between Caterpillar Inc., a
corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 100
N.E. Adams Street, Peoria, Illinois 61629, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATON
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference thereon, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof' and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities and Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Tangible Assets" means as of any particular time the
aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights,
trademarks, trade names, unamortized debt discount and expense and other like
intangibles, all as shown in the most recent consolidated financial statements
of the Company and its Restricted Subsidiaries prepared in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered.
"Corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Important Property" means any manufacturing plant or other facility of
the Company or any Restricted Subsidiary, whether now owned or hereafter
acquired (other than any facility hereafter acquired for the control or
abatement of atmospheric pollutants or contaminants, water pollution, noise,
odor or other pollution), located in the United States of America, Canada or
the Commonwealth of Puerto Rico and having a gross book value (without
deduction for depreciation) as of the date of determination of such value in
excess of 1% of Consolidated Net Tangible Assets as of such date, other than
any such manufacturing plant or other facility that in the opinion of the
Board of Directors of the Company, is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as a whole.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent)for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a a bona fide
purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of (and premium, if any) or
interest on any Security on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Unrestricted Subsidiary which, subsequent
to May 1, 1987, is designated by the Board of Directors as a Restricted
Subsidiary; provided, however, that as a result of such designation no
covenant or agreement in this Indenture would be breached.
"Secured Debt" means indebtedness for money borrowed which is secured by
a mortgage, pledge, lien, security interest or encumbrance on (a) any
Important Property of the Company or any Restricted Subsidiary or on (b) any
shares of stock or indebtedness of any Restricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable, whether at the
option of the Holder or otherwise.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or organized
after May 1, 1987; provided, however, that such Subsidiary shall not be a
successor, directly or indirectly, to any Restricted Subsidiary, and (b) any
Subsidiary whose principal business and assets are located outside the United
States of America, its territories and possessions and Canada, and (c) any
Subsidiary the principal business of which consists of financing or assisting
in financing (i) the Company's dealers or distributors or (ii) the acquisition
or disposition of products of the Company or a Subsidiary, directly or
indirectly, by dealers, distributors or other customers, and (d) any
Subsidiary the principal business of which is owning, leasing, dealing in or
developing real property, and (e) any Subsidiary substantially all the assets
of which consist of stock or other securities of a Subsidiary or Subsidiaries
of a character described in clauses (a) through (d) of this paragraph.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which in either case
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided, that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and(subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiently of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
of the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, unless with respect to
Securities of a series it is provided that the laws of another jurisdiction
shall govern.
SECTION 113. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest of principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity, as
the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security
[Insert any legend required by the Internal Revenue Code and the
Regulations thereunder]
CATERPILLAR INC.
[TITLE OF SECURITY]
No. $
Caterpillar Inc.,a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ........................................
..............., or registered assigns, the principal sum of .................
................................................................Dollars on
........................................................................
[If the Security is to bear interest prior to Maturity; insert---, and to pay
interest thereon from ......... or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on
........ and ......... in each year, commencing ........., at the rate of
.....% per annum, until the principal hereof is paid or made available for
payment [If applicable insert---, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of ......% per annum on any
overdue principal and premium and on any overdue installment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ..... or ..... (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture].
[If the Security if not to bear interest prior to Maturity, insert- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ....% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the
date of such default in payment to the date payment of such principal has been
made or duly provided for. Interest on any overdue principal shall be payable
on demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of .....% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert-any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in the City of Chicago,
Illinois or at the option of the Holder in the Borough of Manhattan, The City
of New York, New York, in such coin and currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert-; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CATERPILLAR INC.
By
.................................... ...................
Attest:
......................
SECTION 203. Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of May 1, 1987 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the fact hereof [, limited in
aggregate principal amount to $..........].
[If applicable, insert-The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert-
(1)on ... in any year commencing with the year ... and ending with the
year ... through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [on or after
..........., 19 ...], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before ....., .....%, and if redeemed] during the
12-month period beginning ..... of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- -----------
and thereafter at a Redemption Price equal to .....% of the principal amount
together in the case of any such redemption [if applicable, insert-(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, or record at the close of
business on the relevant Record Dates referred to on the fact hereof, all as
provided in the Indenture.]
[If applicable, insert-The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ..... in any
year commencing with the year ... and ending with the year ... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ....], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning ..... of
the years indicated,
Redemption Price
For Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to .....,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed
having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ....% per annum.]
[The sinking fund for this series provides for the redemption on ... in
each year beginning with the year .... And ending with the year .... Of [not
less than] $..... [("mandatory sinking fund") and not more than $ .....]
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made-in the inverse order in which they
become due.]]
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
[If the Security is not an Original Issue Discount Security,-If an Event
of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security-If an Event of
Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of
the principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent o the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee and transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIRST NATIONAL BANK
OF CHICAGO
as Trustee
By
......................................................
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906, 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the formula pursuant to which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any) and
interest on Securities of the series shall be payable, and if other than as
set forth herein, the method or methods of such payments;
(6) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(10) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company or
a Holder thereof, in a currency or currencies, including composite currencies,
other than that or those in which the Securities are stated to be payable, the
currency or currencies in which payment of the principal of (and premium, if
any) or interest on Securities of such series as to which such election is
made shall be payable, and the period within which and the terms and
conditions upon which such election is to be made;
(11) if other than the currency of the United States of America, the
currency or currencies, including composite currencies, in which payment of
the principal of (and premium, if any) and interest on the Securities of the
series shall be payable;
(12) if the amount of payments of the principal of (and premium, if any)
or interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(13) the application, if any, of either or both of Section 1302 or 1303
to the Securities of the series; and
(14) any other terms of the series, including choice of governing law, if
other than the laws of the State of New York (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
SECTION 302. Denominations
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denomination of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, one of its Vice
Presidents, its Treasurer or one of its Assistant Treasurers under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 or 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted in Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have
established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided; provided, however,
the Company may appoint from time to time one or more successor or additional
Security Registrars and may from time to time rescind any such designations.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of such
series and date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under the Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights of interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company.
and the Company, in the case of (i), (ii), or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness of
such Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 60 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, or any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment
If an event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 60 days, or
(2) default is made in the payment of the principal of (or premium if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities and, in addition,
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owning and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 507. Limitation on Suits
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustees and the Holders shall continue as
though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest,
if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit against for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities of
any series, determined as provided in Section 512, relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security of such series or in the payment
of any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem if desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder; the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance, thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture under
which the only collateral consists of Securities issued under this Indenture,
provided, that there shall be excluded from the operation of this paragraph
(A) the Indenture dated as of April 1, 1967 of the Company to the First
National Bank of Chicago, relating to the Company's 5.30% Sinking Fund
Debentures, due April 1, 1992, (B) the Indenture dated as of June 1, 1972 of
the Company to The First National Bank of Chicago, relating to the Company's
6 7/8% Sinking Fund Debentures due June 1, 1992, (C) the Indenture dated as of
May 1, 1974 of the Company to The First National Bank of Chicago, relating to
the Company's 8.60% Sinking Fund Debentures, due May 1, 1999, (D) the
Indenture dated as of November 1, 1974 of the Company to The First National
Bank of Chicago, relating to the Company's 8 3/4% Sinking Fund Debentures, due
November 1, 1999, (E) the Indenture dated as of November 1, 1976 of the
Company to The First National Bank of Chicago, relating to the Company's 8%
Sinking Fund Debentures, due November 1, 2001, (F) the Indenture dated as of
May 1, 1982 of the Company to The First National Bank of Chicago, relating to
the Company's 6% Debentures, due May 1, 2007, (G) the Indenture dated as of
July 1, 1982 of the Company to The First National Bank of Chicago, relating to
the Company's Three-Year Extendable Notes and 12 1/2% Notes due October 1,
1990, (H) this Indenture with respect to the Securities of any series other
than that series or (I) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall have
found and declared by order pursuant to Section 305(b) or Section 307(c) of
the Trust Indenture Act that differences exist between the provisions of this
Indenture with respect to Securities of that series and one or more other
series or the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it necessary in
the public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to the
Securities of that series and such other series or under such other indenture
or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to the Securities of that series
and such other series or such other indenture or indentures is not so likely
to involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to the Securities of
that series and such other series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (i) one
individual may be a director or an executive officer, or both, of the Trustee
and a director or an executive officer, or both, of the Company but may not be
at the same time an executive officer of both the Trustee and the Company;
(ii) if and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Company; and (iii) the
Trustee may be designated by the Company or by any underwriter for the Company
to act in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar capacity,
or, subject to the provisions of paragraph (1) of this Subsection, to act as
trustee, whether under an indenture or otherwise;
(5) 10% of more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more such persons; or 10% or
more of the voting securities of the Trustee is beneficially owned either by
an underwriter for the Company or by any director, partner or executive
officer thereof, or is beneficially owned, collectively, by any two or more
such persons;
(6) The Trustee is the beneficial owner or, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or more
of any other class of security, of the Company not including the Securities
issued under this Indenture and securities issued under any other indenture
which the Trustee is also trustee, or (ii) 10% or more of any class of
security of an underwriter for the Company;
(7) The Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who, to
the knowledge of the Trustee, owns 10% or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person who,
to the knowledge of the Trustee, owns 50% or more of the voting securities of
the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest under paragraph (6),
(7) or (8) of this Subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or testamentary
trustee of an estate which included them, the provisions of the preceding
sentence shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do not
exceed 25% of such voting securities or 25% of any such class of security.
Promptly after May 15 in each calendar year, the Trustee shall make a check of
its holdings of such securities in any of the above-mentioned capacities as of
such may 15. If the Company fails to make payment in full of the principal of
(or premium, if any) or interest on any of the Securities when and as the same
becomes due and payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing provisions
of this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long as
such failure shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not
in default as defined in clause (ii) above, or (B) any security which it holds
as collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the
Company, means every person who, within three years prior to the time as of
which the determination is made, has purchased from the Company with a view
to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking or has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term shall not include
a person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an unincorporated
organization or a government or political subdivision thereof. As used in
this paragraph, the term "trust" shall include only a trust where the interest
or interests of the beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or management
of the affairs of a person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or trustees or agent or
agents for the owner or holder of such security are presently entitled to vote
in the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the treasurer
of a corporation, and any individual customarily performing similar functions
with respect to any organization whether incorporated or unincorporated, but
shall not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities specified
in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are entitled
to cast in the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced by such
other class of securities is not in default as to principal or interest or
otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in the
case of unsecured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such
series different classes and provided, further, that, in the case of secured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
SECTION 609. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
conditions so published. If at any time the Trustee shall crease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders, of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bond fide Holder or a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 611. If within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and conform to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims Against Company
(a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within four months prior to a default, as defined in Subsection(c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owning upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four months' period and valid as against
the Company and its other creditors, except any such reduction resulting from
the receipt or disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds of any such property, if disposed
of, subject, however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the Trustee
to a third Person, and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for any
such claim, if such claim was created after the beginning of such four months'
period and such property was received as security therefor simultaneously with
the creation thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no reasonable
cause to believe that a default, as defined in Subsection (c) of this Section,
would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held
in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their
respective claims figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to apportion among the Trustee, the
Holders and the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole
or in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and
the Holders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period,
it shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or more
at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving any
property which shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances thereon, if
notice of such advances and of the circumstances surrounding the making
thereof is given to the Holders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar, custodian,
paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or securities
sold in a cash transaction, as defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under which
a default exists at the time of the apportionment of the funds and property
held in such special account;
(3) the term "cash transaction' means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
(4) the term "self-liquidation paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or receivables or proceeds arising from
the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of the Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail a written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designed therein referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
As Trustee
By: _______________________________
As Authenticating Agent
By: _______________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than May 1 and November 1 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding April 15 or October 15, as the
case may be, and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnished to the Trustee reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 702(a), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicant access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such tender the Trustee
shall mail to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after June 1 of each year commencing with the year
1988, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such
June 1 with respect to:
(1) its eligibility under Section 609 and its qualifications under
Section 608, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects to so state, the circumstances surrounding the making thereof) made by
the Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior to
that of the Securities, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Securities Outstanding on the
date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owning by the Company (or by any other obligor on the Securities)
to the Trustee in its individual capacity, on the date of such report, with a
brief description of any property held as collateral security therefor, except
an indebtedness based upon a creditor relationship arising in any manner
described in Section 613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the possession of
the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant to Subsection
(a) of this Section (or if no such report has yet been transmitted, since the
date of execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee and which it has not previously
report pursuant to this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate 10% or less of the principal amount of the
Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses appear
in the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER. CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company or convey, transfer
or lease its properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirely to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURE
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to the principal,
and with or without interest coupons or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(6) to secure the Securities pursuant to the requirements of Section
1007 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provisions herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon in payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1011, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1011, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration or transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall have been paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date or the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest on the Securities of that series;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of Chicago, Illinois and such a
newspaper in the Borough of Manhattan, The City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company ant that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. Restriction on Creation of Secured Debt.
The Company will not at any time create, assume or guarantee, and will
not cause, suffer or permit a Restricted Subsidiary to create, assume or
guarantee, any Secured Debt without making effective provision (and the
Company covenants that in such case it will make or cause to be made effective
provision) whereby the Securities of any series then outstanding and, if the
Company shall so determine, any other indebtedness of or guaranteed by the
Company or such Restricted Subsidiary, subject to applicable priorities of
payment, shall be secured by such mortgage, pledge, lien, security interest or
encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations and
indebtedness shall be so secured; provided, however, that the foregoing
covenants shall not be applicable to the following:
(a) (i) Any mortgage, pledge, lien, security interest or encumbrance on
any property hereafter acquired (including acquisition through merger or
consolidation) or hereafter constructed or improved by the Company or a
Restricted Subsidiary and created, or for the creation of which a bona fide
firm commitment in writing was executed, prior to, contemporaneously with or
within 180 days after such acquisition or the completion of such construction
or improvement or the commencement of commercial operation or the placing in
service of such property by the Company or a Restricted Subsidiary, whichever
is later, to secure or provide for the payment of all or a part of the
purchase price or cost of construction or improvement of such property; or
(ii) the acquisition of property subject to any mortgage, pledge, lien,
security interest or encumbrance upon such property existing at the time of
acquisition thereof, whether or not assumed by the Company or such Restricted
Subsidiary; or (iii) any mortgage, pledge, lien, security interest or
encumbrance existing on the property, or on the outstanding shares or
indebtedness, of a corporation at the time such corporation shall become a
Restricted Subsidiary; or (iv) any mortgage, pledge, lien, security interest
or encumbrance on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of properties
of a corporation or firm as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary; or
(b) Mortgages, including mortgages, pledges, liens, security interests
or encumbrances, on property of the Company or a Restricted Subsidiary in
favor of the United States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
department, agency or instrumentality or political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any contract
or statute or to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of construction or
improvement of the property subject to such mortgages; or
(c) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any mortgage, pledge, lien,
security interest or encumbrance referred to in the foregoing subparagraphs
(a) and (b); provided, however, that the principal amount of Secured Debt
secured thereby shall not exceed the principal amount outstanding at the time
of such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the property which secured the mortgage so
extended, renewed or replaced and additions to such property; or
(d) Any mortgage, pledge lien, security interest or encumbrance securing
indebtedness owing by the Company or a Restricted Subsidiary to the Company or
to one or more Restricted Subsidiaries, or both.
Notwithstanding the foregoing provisions of this Section 1007, the
Company and any one or more Restricted Subsidiaries may create, assume or
guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions in a aggregate amount which, together with all other Secured Debt
of or guaranteed by the Company and its Restricted Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Secured Debt
permitted to be secured under subparagraphs (a) through (d) above) and the
aggregate value of the Sale and Leaseback Transactions (subject to the
restrictions of Section 1008) in existence at such time (not including Sale
and Leaseback Transactions the proceeds of which have been or will be applied
in accordance with Section 1008(b)), does not at the time exceed 5% of
Consolidated Net Tangible Assets.
SECTION 1008. Restriction on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary to,
sell or transfer (except to the Company or one or more Restricted
Subsidiaries, or both) any Important Property owned by it with the intention
of taking back a lease on such property except a lease for a period not
exceeding three years with the intent that the use by the Company or such
Restricted Subsidiary of such property will be discontinued on or before the
expiration of such period (herein referred to as a "Sale and Leaseback
Transaction") unless:
(a) either the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 1007, to incur Secured Debt equal in
amount to the amount realized or to be realized upon such sale or transfer
secured by a mortgage on the property to be leased without equally and ratably
securing the Securities, or
(b) the Company or a Restricted Subsidiary shall apply an amount equal
to the value of the property so leased to the retirement, within 120 days
after the effective date of any such arrangement, of indebtedness for money
borrowed by the Company or any Restricted Subsidiary (other than such
indebtedness owed to the Company or any Restricted Subsidiary) which was
recorded as funded debt as of the date of its creation and which, in the case
of such indebtedness of the Company, is not subordinate and junior in right of
payment to the prior payment of the Securities; provided, however, that the
amount to be applied to the retirement of such indebtedness shall be reduced
by (i) the principal amount of any Securities delivered within 120 days of the
effective date of any such arrangement to the Trustee for retirement and
cancellation, and (ii) the principal amount of such indebtedness, other than
Securities, retired by the Company or a Restricted Subsidiary within 120 days
of the effective date of any such arrangement.
Notwithstanding the foregoing, no retirement referred to in the preceding
clause (b) may be effected by payment at maturity or pursuant to any mandatory
prepayment provision.
The term "value" shall mean, with respect to a Sale and Leaseback
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such Sale and
Leaseback Transaction or (ii) the fair value of such property at the time of
entering into such Sale and Leaseback Transaction, as determined by the Board
of Directors, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 1009. Restriction on Transfer of Important Property to
Unrestricted Subsidiary.
The Company will not itself, and will not permit any Restricted
Subsidiary to, transfer any Important Property to any Unrestricted Subsidiary
(whether by merger, consolidation or otherwise) unless it shall apply an
amount equal to the fair value of such property at the time of such transfer,
as determined by the Board of Directors, to the retirement (other than any
mandatory retirement), within 120 days of the effective date of such transfer,
of indebtedness for money borrowed by the Company or any Restricted Subsidiary
(other than such indebtedness owed to the Company or any Restricted
Subsidiary) which was recorded as funded debt as of the date of its creation
and which, in case of such indebtedness of the Company, is not subordinate and
junior in right of payment to the prior payment of the Securities.
SECTION 1010. Certificate of Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of Section 1007 to 1009, inclusive, and
if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
SECTION 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1007 to 1009, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
related, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund
Not less than 50 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and wil also deliver to the Trustee any Securities to
be so delivered. Not less than 40 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the previous
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of such series, elect to have either
Section 1302 (if applicable) or Section 1303(if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge
Upon the Company's exercise of its option to effect a defeasance of the
Securities of a series pursuant to this Section, the Company shall be deemed
to have been discharged from its obligations with respect to the Outstanding
Securities of such series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharge hereunder: (A) the rights of Holders of Outstanding Securities or
such series to receive, solely from the trust fund described in Section 1304
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302 notwithstanding the
prior exercise of its option under Section 1303 with respect to the Securities
of such series.
SECTION 1303. Covenant Defeasance
Upon the Company's exercise of its option to effect a covenant defeasance
of the Securities of a series pursuant to this Section, the Company shall be
released from its obligations under Sections 1007, 1008, and 1009 with respect
to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document,
but the remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of either Section
1302 or Section 1303 to the Outstanding Securities of a series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for the purpose of making
the following payment, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such principal
or installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit or at
any time during the period ending on the 123rd day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(4) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be
delisted.
(6) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(7) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same time as would have been the case
if such covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302 or
the covenant defeasance under Section 1303 (as the case may be) have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee - collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of such series shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CATERPILLAR INC.
By /s/F. N. Grimsley
Vice President
Attest:
/s/Sona L. Holt
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By /s/J. R. Grimes
Vice President
Attest:
/s/___________
STATE OF ILLINOIS)
COUNTY OF PEORIA ) SS.:
On the 28th day of May, 1987, before me personally came
F. N. Grimsley, to me known who, being by me duly sworn, did depose and say
that he is Vice President of Caterpillar Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ Linda L. Schearer
Notary Public
State of Illinois
STATE OF ILLINOIS)
COUNTY OF COOK ) SS.:
On the 27th day of May, 1987, before me personally came J. R. Grimes, to me
known, who, being by me duly sworn, did depose and say that he is Vice
President of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ Ernest L. Henley
Notary Public
State of Illinois
CATERPILLAR INC.
AND
THE FIRST NATIONAL BANK
OF CHICAGO
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 1, 1989
FIRST SUPPLEMENTAL INDENTURE, dated as of June 1, 1989, between
Caterpillar Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 100 NE Adams Street, Peoria, Illinois 61629, and The First National
Bank of Chicago, a national banking association duly incorporated and existing
under the laws of the United States, as Trustee (herein called the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a
certain indenture, dated as of May 1, 1987 (herein called the "Indenture"),
pursuant to which one or more series of unsecured debentures, notes or other
evidences of indebtedness of the Company (herein called the "Securities") may
be issued from time to time. All terms used in this First Supplemental
Indenture which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
The Company desires and has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture for the purpose of
amending Articles One, Two, Three, Five, Nine and Eleven of the Indenture in
order to permit the issuance of Securities in the form of global securities.
Section 901 (9) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which we do not adversely affect the interests of the Holders of Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of the First Supplemental Indenture is authorized
or permitted by the Indenture, (ii) an Officer's Certificate stating that all
conditions precedent provided for in the Indenture with respect to this First
Supplemental Indenture have been complied with, and (iii) a copy of the
resolutions of its Board of Directors and a Special Committee thereof,
certified by its Secretary, pursuant to which this First Supplemental
Indenture has been authorized.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and
supplemental to the Indenture have been done.
NOW THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
SECTION 101. Section 101 of the Indenture is amended to include therein the
following provisions:
(a) After the definition of Defaulted Interest:
"'Depository' means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depository for such series by the Company pursuant to
Section 301."
(b) After the definition of Event of Default:
"'Global Security' means a Security in the form prescribed in Section 205
evidencing all or part of a series of Securities, issued to the Depository for
such series or its nominee and registered in the name of such Depository or
nominee."
SECTION 102. Section 104 (a) and (b) of the Indenture are amended as read, in
their entirety, as follows:
"(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing, or by any Person duly authorized by means of any written
certification, proxy or other authorization furnished by a Depository; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or, in the case of the Depository, furnishing the
written certification, proxy or other authorization pursuant to which such
instrument or instruments is signed. Proof of execution of any such
instrument, any writing appointing any such agent or authorizing any such
Person or any such written certification or proxy shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument,
writing, certification or proxy may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument, writing, certification or proxy
acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument,
writing, certification or proxy or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient."
SECTION 103. A new Section 205 is added, to read in its entirety as follows:
"SECTION 205. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 202 and 203, bear a legend as follows:
'This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Global Security is exchangeable
for Securities registered in the name of a person other than the Depository or
its nominee only in the limited circumstances hereinafter described and may
not be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository.'
In addition, such Global Security shall contain the following
provision:
'This Security is a Global Security and shall be exchangeable
for Securities registered in the names of Persons other than the Depository
with respect to this Global Security or its nominee only if (x) such
Depository notifies the Company that it is unwilling or unable to continue as
Depository for this Global Security or at any time ceases to be a clearing
agency registered as such under the Securities Exchange Act or 1934, as
amended, (y) the Company executes and delivers to the Trustee a Company Order
that this Global Security shall be exchangeable or (z) there shall have
occurred and be continuing an Event of Default with respect to the Securities.
If this Global Security is exchangeable pursuant to the preceding sentence it
shall be exchangeable for Securities issuable in denominations of $1,000 and
any integral multiple thereof, registered in such names as such Depository
shall direct.'"
SECTION 104. The word "and" is deleted at the end of Section 301 (14) of
the Indenture, Section 301 (14) of the Indenture is renumbered Section 301
(15) and a new Section 301 (14) is added, to read in its entirety as follows:
"(14) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
Depository for such Global Security or Securities; and"
SECTION 105. The following paragraphs are appended to the end of
Section 305 of the Indenture:
"Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, a Global Security of any series shall be
exchangeable pursuant to this Section for Securities registered in the names
of Persons other than the Depository with respect to such series or its
nominee only as provided in this paragraph. A Global Security shall be
exchangeable pursuant to this Section if (x) such Depository notifies the
Company that it is unwilling or unable to continue as Depository for such
series or at any time ceases to be a clearing agency registered as such under
the Securities Exchange Act of 1934, as amended, (y) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (z) there shall have occurred and be continuing an Event of
Default with respect to the Securities. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities issuable in denominations of $1,000 and any integral multiple
thereof, registered in such names as the Depository for such Global Security
shall direct.
Notwithstanding any other provision of this Section, a Global Security
may not be transferred except as a whole by the Depository to a nominee of
such Depository or by a nominee of such Depository to such Depository or
another nominee of such Depository."
SECTION 106. The following paragraph is appended to the end of Section
308 of the Indenture:
"No holder of any beneficial interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and such Depository may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall impair, as between a Depository and such holders of
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depository as Holder of any Security."
SECTION 107. The following paragraph is added immediately following
paragraph (2) of Section 512 of the Indenture:
"The Trustee may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled so to direct the Trustee.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled so to direct the
Trustee, or to amend any such direction, whether or not such Holders remain
Holders after such record date; provided that such direction or amended
direction shall be given no later than the 90th day after such record date.
SECTION 108. The following paragraph is added immediately following
paragraph (2) of Section 513 of the Indenture:
"With respect to any series of Securities issued after June 1, 1989,
the Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to
waive any default hereunder, or to retract (prior to the delivery to the
Trustee of waivers from the Holders of a majority of such Securities) any such
waiver previously given, whether or not such Holders remain Holders after such
record date; provided, that such waiver shall be effected no later than the
90th day after such record date."
SECTION 109. The following paragraph is added immediately before the
last paragraph of Section 902 of the Indenture:
"With respect to any series of Securities issued after June 1, 1989, the
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date or their
duly designated proxies, and only such Persons, shall be entitled to consent
to such supplemental indenture or to revoke (prior to the delivery to the
Trustee of consents from the Holders of 66-2/3% of such Securities) any such
consent previously given, whether or not such Holders remain Holders after
such record date; provided, that such consent shall become effective no later
than the 90th date after such record date."
SECTION 110. Section 1107 of the Indenture is amended to read in its
entirety as follows:
"SECTION 1107. Securities Redeemed in Part.
Any Security (including any Global Security) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed potion of the principal of the Security so
surrendered; provided, that if a Global Security is so surrendered, the new
Global Security shall be in a denomination equal to the unredeemed portion of
the principal of the Global Security so surrendered."
ARTICLE II
SECTION 201. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
CATERPILLAR INC.
By: /s/ FRANK N. GRIMSLEY
Attest:
/s/ Sona L. Holt
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By: /s/ J. R. Grimes, Vice President
Attest:
/s/ Leland Hansen
Assistant Vice President
STATE OF ILLINOIS)
)SS:
COUNTY OF PEORIA )
On the 9th day of June, 1989, before me personally came F. N. Grimsley,
to me known, who, being by me duly sworn, did depose and say that he is of
Caterpillar Inc., one of the corporations described in and which executed the
foregoing instrument, that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ Patricia L. Audo
Notary Public, State of Illinois
Official Seal
STATE OF ILLINOIS)
)SS.:
COUNTY OF COOK )
On the 9th day of June, 1989, before me personally came J. R. Grimes, to
me known, who, being by me duly sworn, did depose and say that he is Vice
President of the First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporation seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Noreen T. Scaiff
Notary Public, State of Illinois
Official Seal
RESIGNATION OF
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee and Paying Agent (Chicago)
AND RESIGNATION OF
FIRST CHICAGO TRUST COMPANY OF NEW YORK
as Paying Agent (New York)
AND APPOINTMENT OF
CITIBANK, N.A.
as Successor Trustee
and Paying Agent (New York)
AND APPOINTMENT OF
LaSALLE NATIONAL BANK
as Successor Paying Agent
(Chicago)
UNDER THE INDENTURE, as supplemented
(Dated May 1, 1987)
OF
CATERPILLAR INC.
Dated October 1, 1991
This instrument, dated as of October 1, 1991, made and executed by
CATERPILLAR INC., a corporation organized and existing under and by virtue of
the laws of the State of Delaware and having its principal office in Peoria,
Illinois (hereinafter sometimes called the "Company"), THE FIRST NATIONAL BANK
OF CHICAGO, a national banking association incorporated and existing under and
by virtue of the laws of the United States of America and having its principal
office in Chicago, Illinois, FIRST CHICAGO TRUST COMPANY OF NEW YORK, a trust
company incorporated and existing under and by virtue of the laws of New York
and having its principal office in New York, New York, CITIBANK, N.A., a
national banking association incorporated and existing under and by virtue of
the laws of the United States of America and having its principal office in
New York, New York, and LaSALLE NATIONAL BANK, a national banking association
incorporated and existing under and by virtue of the laws of the United States
of America and having its principal office in Chicago, Illinois.
WITNESSETH:
(1) THE FIRST NATIONAL BANK OF CHICAGO hereby resigns and surrenders all
of the rights, powers, trusts and duties now or heretofore vested in it as the
Trustee under that certain indenture dated May 1, 1987, between CATERPILLAR
INC. and THE FIRST NATIONAL BANK OF CHICAGO, as Trustee, which has been
supplemented by one supplemental indenture dated June 1, 1989 (as
supplemented, the "Indenture"); THE FIRST NATIONAL BANK OF CHICAGO and FIRST
CHICAGO TRUST COMPANY OF NEW YORK each hereby resigns and surrenders all of
the rights, powers, trusts and duties now or heretofore vested in it as the
Company's agency where securities issued under the Indenture may be presented
or surrendered for payment, where such securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of such securities and the Indenture may be served
(such agency is referred to as the "Paying Agent") in the City of Chicago and
in the Borough of Manhattan, City of New York, respectively.
(2) CATERPILLAR INC. hereby accepts the resignation of THE FIRST
NATIONAL BANK OF CHICAGO as Trustee and Paying Agent and the resignation of
FIRST CHICAGO TRUST COMPANY OF NEW YORK as Paying Agent and the surrender of
their rights, powers, trusts and duties under the Indenture.
(3) CATERPILLAR INC., acting under and pursuant to the authority
conferred upon it by said Indenture and, having ascertained that CITIBANK,
N.A., is duly qualified for appointment as such Trustee, hereby appoints
CITIBANK, N.A., as the successor Trustee and as the successor Paying Agent in
the Borough of Manhattan, City of New York, under the Indenture, and invests
CITIBANK, N.A., with all of the rights, powers, trusts and duties which were
vested in THE FIRST NATIONAL BANK OF CHICAGO as Trustee and FIRST CHICAGO
TRUST COMPANY OF NEW YORK as Paying Agent in the Borough of Manhattan, City of
New York, under the Indenture before their resignations.
(4) CITIBANK, N.A., hereby accepts its appointment by CATERPILLAR INC.
as successor Trustee and as successor Paying Agent in the Borough of
Manhattan, City of New York, under the Indenture and the rights, powers,
trusts and duties thereby conferred, confirms that it is duly qualified for
appointment as such Trustee, and promises to execute the trusts and duties
created by and defined in the Indenture, all in accordance with the terms,
conditions and provisions of the Indenture.
(5) CATERPILLAR INC., acting under and pursuant to the authority
conferred upon it by said Indenture, hereby appoints LaSALLE NATIONAL BANK as
successor Paying Agent in the City of Chicago, under the Indenture, and
invests LaSALLE NATIONAL BANK, with all of the rights, powers, trusts and
duties which were vested in THE FIRST NATIONAL BANK OF CHICAGO as Paying Agent
in the City of Chicago under the Indenture before its resignation.
(6) LaSALLE NATIONAL BANK hereby accepts its appointment by CATERPILLAR
INC. as successor Paying Agent in the City of Chicago under the Indenture and
the rights, powers, trusts and duties thereby conferred, and promises to
execute the trusts and duties created by and defined in the Indenture, all in
accordance with the terms, conditions and provisions of the Indenture.
(7) THE FIRST NATIONAL BANK OF CHICAGO and FIRST CHICAGO TRUST COMPANY
OF NEW YORK, acting at the request of CATERPILLAR INC. and under and pursuant
to the power conferred and the duties imposed by the Indenture, hereby duly
assign, transfer and deliver unto CITIBANK, N.A., as successor Trustee and as
successor Paying Agent in the Borough of Manhattan, City of New York, under
the Indenture, all property (including all debt securities held for
satisfaction of sinking fund payments) and money held by THE FIRST NATIONAL
BANK OF CHICAGO and FIRST CHICAGO TRUST COMPANY OF NEW YORK under the
Indenture.
(8) The resignations of THE FIRST NATIONAL BANK OF CHICAGO as Trustee
and Paying Agent (Chicago) and of FIRST CHICAGO TRUST COMPANY OF NEW YORK as
Paying Agent (New York) under the Indenture, and the appointments of CITIBANK,
N.A. as Trustee and Paying Agent (New York) and LaSALLE NATIONAL BANK as
Paying Agent (Chicago) under the Indenture, together with all other
obligations specified herein, shall take effect as of the close of business on
October 1, 1991.
(9) The Company's debt securities issued under the Indenture together
with the amount of such debt securities outstanding as of October 1, 1991, are
set forth on Schedule A hereto.
IN WITNESS WHEREOF the parties hereto have executed this instrument and have
caused their corporate seals to be hereunto affixed and have caused the
execution hereof to be attested, as of the day and year first above written.
CATERPILLAR INC.
By /s/ C. E. Rager
Title: Vice President and
Chief Financial Officer
[SEAL]
Attest:
/s/ Sona L. Holt
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Ronald Brumer
Title: Vice President
[SEAL]
Attest:
/s/__________________
Title: Assistant Vice President
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By /s/ Steven Wagner
Title: Vice President
[SEAL]
Attest:
/s/ Tim Marshall
Title: Trust Officer
CITIBANK, N.A.
By /s/ Irene Teutonico
Title: Senior Trust Office
[SEAL]
Attest:
/s/ Pam J. Cote
Title: Senior Trust Office
LaSALLE NATIONAL BANK
By /s/ Sarah H. Webb
Title: Vice President
[SEAL]
Attest:
/s/_______________
Title: Assistant Secretary
STATE OF ILLINOIS)
)SS.
COUNTY OF PEORIA )
On the 23rd day of September, 1991, before me personally came C. E.
Rager, to me known, who, being by me duly sworn, did depose and say that he is
a Vice President and Chief Financial Officer of Caterpillar Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Patricia L. Audo
Notary Public, State of Illinois
Official Seal
STATE OF ILLINOIS)
)SS.
COUNTY OF COOK )
On the 17th day of September, 1991, before me personally came Ronald
Brumer, to me known who, being by me duly sworn, did depose and say that he is
Vice President of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ Eydie A. Wrobel
Notary Public, State of Illinois
Official Seal
STATE OF ILLINOIS)
)SS.
COUNTY OF COOK )
On the 17th day of September, 1991, before me personally came Steven
Wagner, to me known who, being by me duly sworn, did depose and say that he is
Vice President of The Chicago Trust Company of New York, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Eydie A. Wrobel
Notary Public, State of Illinois
Official Seal
STATE OF NEW YORK )
)SS
BOROUGH OF NEW YORK)
On the 19th day of September, 1991, before me personally came Irene
Teutonico, to me known, who, being by me duly sworn, did depose and say that
she is Senior Trust Officer of Citibank, N.A., one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that she signed her name thereto by like authority.
/s/ Enzo l. Carbocci
Notary Public, State of New York
Official Seal
STATE OF ILLINOIS)
)SS
COUNTY OF COOK )
On the 24th day of September, 1991, before me personally came Sarah H.
Webb, to me known, who, being by me duly sworn, did depose and say that she is
Vice President of LaSalle National Bank, one of the corporations described in
and which executed the foregoing instrument; that she knows the seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that she signed her name thereto by like authority.
/s/ Ruby J. Murchison
Notary Public, State of Illinois
Official Seal
SCHEDULE A
Caterpillar Inc. Debt Securities Issued
Under the Indenture Dated as of May 1, 1997
Amount
Outstanding
as of
Debt Issue October 1, 1991
10-1/8% Debentures due June 1, 2017 $100,000,000
9-3/8% Notes due December 1, 1993 $100,000,000
9-3/4% Sinking Fund Debentures due June 1, 2019 $300,000,000
9-3/8% Notes due July 15, 2000 $150,000,000
9-1/8% Notes due December 15, 1996 $150,000,000
9-3/8% Debentures due March 15, 2021 $250,000,000
9% Debentures due April 15, 2006 $250,000,000
9-3/8% Notes due July 15, 2001 $200,000,000
9-3/8% Debentures due August 15, 2011 $150,000,000
CATERPILLAR INC.
AND
CITICORP, N.A.
Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of May 15, 1992
SECOND SUPPLEMENTAL INDENTURE, dated as of May 15, 1992, between
CATERPILLAR INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 100 NE Adams Street, Peoria, Illinois 61629, and CITIBANK, N.A.
(successor trustee to The First National Bank of Chicago), a national banking
association duly organized and existing under the laws of the United States,
as Trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a
certain indenture, dated as of May 1, 1987, as supplemented by the First
Supplemental Indenture dated as of June 1, 1989 (collectively the
"Indenture"), pursuant to which one or more series of unsecured debentures,
notes or other evidence of indebtedness of the Company (herein called the
"Securities") may be issued from time to time. All terms used in this Second
Supplemental Indenture which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The Company desire and has requested the Trustee to join with it in the
execution and delivery of this Second Supplemental Indenture for the purpose
of amending the indenture in order to make certain provisions for the issuance
of Securities denominated in currencies other than United States dollars.
Section 901 (9) of the Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of Securities of
any series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of this Second Supplemental Indenture is authorized
or permitted by the Indenture, (ii) an Officers' Certificate stating that all
conditions precedent provided for in the Indenture have been complied with,
and (iii) a copy of the resolutions of its Board of Directors, certified by
its Secretary, pursuant to which this Second Supplemental Indenture has been
authorized.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSTH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
SECTION 101. The definition of "Outstanding" set forth in Section 101 of
the Indenture is amended to read as follows:
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent), for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered to this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (x) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration
acceleration of the maturity thereof pursuant to Section 502, (y) the
principal amount of a Security denominated in a foreign current or a composite
currency shall be the U.S. dollar equivalent, determined based on the rate of
exchange prevailing on the Business Day immediately preceding the date of
original issuance of such Security by the Company in good faith, and the
Company shall deliver such determination in writing to the Trustee, of the
principal amount of such Security (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent, determined based on the rate of
exchange prevailing on the Business Day immediately preceding the date of
original issuance of such Security, of the amount determined as provided in
(x) above), and (z) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
SECTION 102. The definition of "U.S. Government Obligations" set forth in
Section 101 of the Indenture is amended to read as follows:
"U.S. Government Obligations" shall mean, in respect of any series of
Securities, securities of (i) the government which issued the currency in
which the Securities of such series are denominated and/or in which principal
or interest is payable on the Securities of such series or (ii) government
agencies backed by the full faith and credit of such government.
SECTION 103. Section 101 of the Indenture is amended to include therein the
following provisions after the definition of Depository:
"dollar", "$" and "U.S. dollar" refer to the currency of the United
States of America.
SECTION 104. The following paragraphs are added to the end of Section 506 of
the Indenture:
If in any case Securities are Outstanding which are denominated in
different currencies, or in a composite currency and at least one other
currency, and the Trustee is directed to make ratable payments under this
Section to Holders of such Securities, the Trustee shall calculate the amount
of such payments as follows: (i) as of the day the Trustee collects an amount
under this Article, the Trustee shall, as to each Holder of a Security to whom
an amount is due and payable under this Section which is denominated in a
foreign currency or a composite currency, determine that amount of U.S.
dollars that would be obtained for the amount owing such Holder, using the
rate of exchange as determined in the manner set forth in the respective
Securities; (ii) calculate the sum of all U.S. dollar amounts determined under
(i) and add thereto any amounts due and payable in U.S. dollars; and (iii)
using the individual amounts determined in (i) or any individual amounts due
and payable in U.S. dollars, as the case may be, as a numerator and the sum
calculated in (ii) as a denominator, calculate as to each Holder of a Security
to whom an amount is owed under this Section the fraction of the amount
collected under this Article payable to such Holder. Any expenses incurred by
the Trustee in actually converting amounts owing Holders of Securities
denominated in a currency or composite currency other than that in which any
amount is collected under this Article shall be borne ratably by all Holders
of such Securities.
To the fullest extent allowed under applicable law, if for the purpose of
obtaining judgment against the Company in any court it is necessary to convert
the sum due in respect of the principal of or any premium or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate of exchange at which the Trustee could purchase in the City
of New York the Required Currency with the Judgment Currency on the Business
Day preceding that on which final judgment is given. The Company shall not be
liable for any shortfall nor shall it benefit from any windfall in payments to
Holders of Securities under this Section caused by a change in exchange rates
between the time the amount of a judgment against it is calculated as above
and the time the Trustee converts the Judgment Currency into the Required
Currency to make payments under this Section to Holders of Securities, but
payment of such judgment shall discharge all amounts owed by the Company on
the claim or claims underlying such judgment.
ARTICLE TWO
SECTION 201. Except as hereby otherwise expressly provided, the Indenture is
in all respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
SECTION 202. This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 203. The recitals of fact contained herein shall be taken as the
statements of the Company and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this supplemental indenture.
IN WITNESS HEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
CATERPILLAR INC.
By /s/ C. E. Rager
Title: Vice President
[SEAL]
Attest:
/s/ Sona L. Holt
CITIBANK, N.A.
By /s/ Irene Teutonico
Senior Trust Officer
[SEAL]
Attest:
/s/
STATE OF ILLINOIS)
)SS.
COUNTY OF PEORIA )
On the 21st day of May, 1992, before me personally came C. E. Rager, to
me known, who, being by me duly sworn, did depose and say that he is Vice
President of CATERPILLAR INC., a corporation described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ Patricia L. Audo
Notary Public, State of Illinois
Official Seal
STATE OF NEW YORK )
)SS.
COUNTY OF NEW YORK)
On the 21st day of May, 1992, before me personally came Irene Teutonico,
to me known, who, being by me duly sworn, did depose and say that she is a
Senior Trust Officer of CITIBANK, N.A., a national banking association
described in and which executed the foregoing instrument; that she knows the
seal of said national banking association; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said national banking association, and that she signed her name
thereto by like authority.
/s/ Peter M. Pavlyshin
Notary Public, State of New York
Official Seal
THIRD SUPPLEMENTAL INDENTURE, dated as of December 16, 1996, between
CATERPILLAR INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 100 NE Adams Street, Peoria, Illinois 61629, and CITIBANK, N.A.
(successor trustee to The First National Bank of Chicago), a national banking
association duly organized and existing under the laws of the United States,
as Trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee
a certain indenture, dated as of May 1, 1987, as supplemented by a First
Supplemental Indenture dated as of June 1, 1989, and a Second Supplemental
Indenture dated as of May 15, 1992 (collectively the "Indenture"), pursuant to
which the Company has issued and has outstanding as of the effective date of
this Supplemental Indenture the series of notes and debentures set forth in
Annex A hereto (the "Outstanding Securities") and may issue from time to time
hereafter one or more series of unsecured debentures, notes or other evidence
of indebtedness of the Company (together with the Outstanding Securities, the
"Securities"); and
WHEREAS, Section 902 of the Indenture provides, among other things, that
with the consent of the holders of not less than 66-2/3% in aggregate
principal amount of the outstanding Securities of each series affected by such
supplemental indentures ("Requisite Consent"), the Company and the Trustee may
enter into indentures supplemental to the Indenture for, among other things,
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture; and
WHEREAS, pursuant to its Consent Solicitation Statement dated October 23,
1996, the Company has solicited and obtained the Requisite Consent from the
holders of each series of the Outstanding Securities to amend certain
provisions of the Indenture as herein provided (the "Amendments"); and
WHEREAS, the Company has furnished the Trustee with (i) an Opinion or
Counsel stating that the execution of this Third Supplemental Indenture is
authorized or permitted by the Indenture, (ii) an Officers' Certificate
stating that all conditions precedent provided for in the Indenture with
respect to this Third Supplemental Indenture have been complied with, and
(iii) a copy of the resolutions of its Board of Directors, certified by its
Secretary or an Assistant Secretary, pursuant to which this Third Supplemental
Indenture has been authorized.
NOW THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to effect the Amendments in accordance with Section 902 of
the Indenture, the Company hereby covenants and agrees with the Trustee, for
the equal and proportionate benefit of all the present and future holders of
the Securities, as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 1.01. Amendment to Section 101. Section 101 of the Indenture is
hereby amended by deleting therefrom the definition of "Consolidated Net
Tangible Assets" in its entirety and substituting, in lieu thereof, the
following:
"Consolidated Net Tangible Assets" means as of any particular time
the aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendible or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights,
trademarks, trade names, unamortized debt discount and expense and other like
intangibles, all as shown in the most recent consolidated financial statements
of the Company and its consolidated subsidiaries prepared in accordance with
generally accepted accounting principals.
SECTION 1.02 Amendment to Section 1007. Section 1007 of the Indenture is
hereby amended by deleting such Section 1007 in its entirety and substituting,
in lieu thereof, the following:
The Company will not at any time create, assume or guarantee, and will
not cause, suffer or permit a Restricted Subsidiary to create, assume or
guarantee, any Secured Debt without making effective provision (and the
Company covenants that in such case it will make or cause to be made effective
provision) whereby the Securities of any series then outstanding and, if the
Company shall so determine, any other indebtedness of or guaranteed by the
Company or such Restricted Subsidiary, subject to applicable priorities of
payment, shall be secured by such mortgage, pledge, lien, security interest or
encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations and
indebtedness shall be so secured; provided, however, that the foregoing
covenants shall not be applicable to the following:
(a) (i) Any mortgage, pledge, lien, security interest or encumbrance on
any property hereafter acquired (including acquisition through merger or
consolidation) or hereafter constructed or improved by the Company or a
Restricted Subsidiary and created, or for the creation of which a bona fide
firm commitment in writing was executed, prior to, contemporaneously with or
within 180 days after such acquisition or the completion of such construction
or improvement or the commencement of commercial operation or the placing in
service of such property by the Company or a Restricted Subsidiary, whichever
is later, to secure or provide for the payment of all or a part of the
purchase price or cost of construction or improvement of such property; or
(ii) the acquisition of property subject to any mortgage, pledge, lien,
security interest or encumbrance upon such property existing at the time of
acquisition thereof, whether or not assumed by the Company or such Restricted
Subsidiary; or (iii) any mortgage, pledge, lien, security interest or
encumbrance existing on the property, or on the outstanding shares or
indebtedness, of a corporation at the time such corporation shall become a
Restricted Subsidiary; or (iv) any mortgage, pledge, lien, security interest
or encumbrance on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary; or
(b) Mortgages, including mortgages, pledges, liens, security interests
or encumbrances, on property of the Company or a Restricted Subsidiary in
favor of the United States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
department, agency or instrumentality or political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any contract
or statute or to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of construction or
improvement of the property subject to such mortgages; or
(c) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any mortgage, pledge, lien,
security interest or encumbrance referred to in the foregoing subparagraphs
(a) and (b); provided, however, that the principal amount of Secured Debt
secured thereby shall not exceed the principal amount outstanding at the time
of such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the property which secured the mortgage so
extended, renewed or replaced and additions to such property; or
(d) Any mortgage, pledge, lien, security interest or encumbrance
securing indebtedness owing by the Company or a Restricted Subsidiary to the
Company or to one or more Restricted Subsidiaries, or both.
Notwithstanding the foregoing provisions of this Section 1007, the Company and
any one or more Restricted Subsidiaries may create, assume or guarantee
Secured Debt which would otherwise be subject to the foregoing restrictions in
an aggregate amount which, together with all other Secured Debt of or
guaranteed by the Company and its Restricted Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Secured Debt
permitted to be secured under subparagraphs (a) through (d) above) and the
aggregate value of the Sale and Leaseback Transactions (subject to the
restrictions of Section 1008) in existence at such time (not including Sale
and Leaseback Transactions the proceeds of which have been or will be applied
in accordance with Section 1008(b)), does not at the time exceed 10% of
Consolidated Net Tangible Assets.
SECTION 1.03. Effective Date. These amendments to the Indenture effected by
this Third Supplemental Indenture shall be effective as of December 16, 1996.
ARTICLE TWO
MISCELLANEOUS
SECTION 2.01. Incorporation of Indenture. All the provisions of this Third
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as supplemented and amended by the Third
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument; and all terms used in this Third Supplemental Indenture which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
SECTION 2.02. Headings. The headings of the Articles and Sections of this
Third Supplemental Indenture are inserted for convenience of reference and
shall not be deemed to be a part thereof.
SECTION 2.03. Counterparts. This Third Supplemental Indenture may be
executed in any number of counterparts each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 2.04. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in the Third Supplemental Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
SECTION 2.05. Successors. All covenants and agreements in this Third
Supplemental Indenture by the Company shall bind its successors. All
covenants and agreements of the Trustee in this Third Supplemental Indenture
shall bind its successor.
SECTION 2.06. Benefits of Third Supplemental Indenture. Nothing in this
Third Supplemental Indenture, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this Third
Supplemental Indenture.
SECTION 2.07. Terms Defined. All terms defined in the Indenture shall have
the same meanings herein.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
CATERPILLAR INC.
By /s/Douglas R. Oberhelman
[Corporate Seal]
Attest:
/s/Mary J. Callahan
CITIBANK, N.A., as Trustee
By /s/Arthur W. Aslanian
[Corporate Seal]
Attest:
/s/
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK)
On the 18th day of December, 1996, before me personally came Arthur W.
Aslanian, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of CITIBANK, N.A., a national banking association
described in and which executed the foregoing instrument; that he knows the
seal of said national banking association; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said national banking association, and that he signed his name
thereto by like authority.
/s/ Doris Ware
Notary Public
State of New York
Annex A to Third Supplemental Indenture
Series Title of Series
- ------ ---------------
1. 9.375% Notes due July 15, 2000
2. 9.375% Notes due July 15, 2001
3. 9.000% Debentures due April 15, 2006
4. 9.375% Debentures due August 15, 2011
5. 9.750% Debentures due June 1, 2019
6. 9.375% Debentures due March 15, 2021
7. 8.000% Debentures due February 15, 2023
8. Medium Term Notes:
7.625% Medium Term Notes due November 25, 1997
7.470% Medium Term Notes due January 14, 1998
7.910% Medium Term Notes due November 25, 1998
7.550% Medium Term Notes due January 15, 1999
7.710% Medium Term Notes due January 19, 1999
7.720% Medium Term Notes due January 19, 1999
8.300% Medium Term Notes due December 20, 2001
7.980% Medium Term Notes due January 14, 2002
7.950% Medium Term Notes due January 15, 2002
8.010% Medium Term Notes due January 16, 2002
8.040% Medium Term Notes due January 16, 2002
8.390% Medium Term Notes due November 25, 2002
8.440% Medium Term Notes due November 26, 2003
8.080% Medium Term Notes due January 9, 2004
8.140% Medium Term Notes due January 12, 2004
8.080% Medium Term Notes due January 15, 2004
8.100% Medium Term Notes due January 15, 2004
9. Medium Term Notes, Series B:
7.300% Medium Term Notes due June 4, 1997
7.280% Medium Term Notes due June 5, 1997
7.390% Medium Term Notes due June 9, 1997
7.320% Medium Term Notes due June 9, 1997
7.330% Medium Term Notes due June 9, 1997
7.340% Medium Term Notes due June 9, 1999
7.700% Medium Term Notes due June 10, 1999
6.800% Medium Term Notes due August 24, 1999
6.810% Medium Term Notes due August 24, 1999
6.820% Medium Term Notes due August 24, 1999
Caterpillar Inc.
100 N.E. Adams St.
Peoria, IL 61629
Ladies and Gentlemen:
This opinion is in connection with the Registration Statement filed on
Form S-3 ("Registration Statement") filed by Caterpillar Inc. ("Company") with
the Securities & Exchange Commission ("Commission") for registration under the
Securities Act of 1933 ("Act") of $500 million aggregate initial offering
price of the Company's debt securities. Such $500 million of debt securities
("Securities") are to be issued pursuant to the indenture described in the
Registration Statement.
In that connection, I have examined copies of such corporate records and
made such inquiries as I have deemed necessary for the purposes of rendering
the option set forth.
Based upon the foregoing, in my opinion, when the Registration Statement
becomes effective under the Act and the terms of the Securities and of their
issue and sale have been duly established so as not to violate any applicable
law or agreement or instrument binding on the Company and upon execution and
authentication of the Securities in accordance with the indenture and delivery
of the Securities to the purchasers against payment, the Securities will be
valid and binding obligations of the Company, enforceable in accordance with
their terms. This opinion is qualified insofar as enforceability may be
limited by fraudulent transfer, bankruptcy, insolvency or similar laws
affecting creditor's rights generally and the availability of equitable
remedies may be limited by equitable principles of general applicability.
This opinion is limited to the federal laws of the United States of
America and the laws of the State of Illinois.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under the caption
"Legal Opinions" in the related prospectus. My consent to such reference does
not constitute a consent under Section 7 of the Act, as in consenting to such
reference I have not certified any part of the Registration Statement and do
not otherwise come within the categories of persons whose consent is required
under Section 7 or under the rules and regulations of the Commission
thereunder.
Sincerely,
Richard P. Konrath
Securities Counsel
CATERPILLAR INC.,
CONSOLIDATED SUBSIDIARY COMPANIES,
AND 50%-OWNED UNCONSOLIDATED AFFILIATED COMPANIES
STATEMENT SETTING FORTH COMPUTATION
OF RATIOS OF PROFIT TO FIXED CHARGES
(Millions of dollars)
YEARS ENDED DECEMBER 31,
1996 1995 1994
Profit $1,361 $1,136 $ 955
Add:
Provision for income taxes 653 536 397
------ ------ ------
Profit before taxes $2,014 $1,672 $1,352
Fixed charges:
Interest and other costs related
to borrowed funds<F1> $ 519 $ 502 $ 430
Rentals at computed interest factors<F2> 54 51 51
------ ------ ------
Total fixed charges $ 573 $ 553 $ 481
------ ------ ------
Profit before provision for income
taxes and fixed charges $2,587 $2,225 $1,833
------ ------ ------
------ ------ ------
Ratio of profit to fixed charges 4.5 4.0 3.8
------ ------ ------
------ ------ ------
<F1> Interest expense as reported in the Consolidated Results of Operations
plus the Company's proportionate share of 50 percent-owned unconsolidated
affiliated companies' interest expense.
<F2> Amounts represent those portions of rent expense that are reasonable
approximations of interest costs.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Caterpillar
Inc. of our report dated January 18, 1996 appearing on page A-3 of the
Appendix to the Company's 1996 Annual Meeting of Stockholders Proxy Statement,
which is incorporated by reference in Caterpillar Inc.'s Annual Report on Form
10-K for the year ended December 31, 1995. We also consent to the
incorporation by reference of our report on the Financial Statement Schedules
listed in Item 14(a) of such Annual Report on Form 10-K. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Peoria, Illinois
February 12, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
_______________________
CATERPILLAR INC.
(Exact name of obligor as specified in its charter)
Delaware 37-0602744
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
100 NE Adams Street
Peoria, Illinois 61629
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now
in effect. (Exhibit 1 to T-1 to Registration Statement
No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration
Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to
Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to
Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of September 30, 1996 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 10th day
of February, 1997.
CITIBANK, N.A.
By /s/Wafaa Orfy
Wafaa Orfy
Senior Trust Officer
Exhibit 7 to Form T-1
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
of New York in the State of New York, at the close of business on September
30, 1996, published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter Number 1461
Comptroller of the Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 8,647,000
Interest-bearing balances 13,006,000
Held-to-maturity securities 0
Available-for-sale securities 22,101,000
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold 4,263,000
Securities purchased under agreements to resell 370,000
Loans and lease financing receivables:
Loans and leases, net of unearned income $147,806,000
LESS: Allowance for loan and lease losses 4,386,000
LESS: Allocated transfer risk reserve 0
------------
Loans and leases, net of unearned income, allowance,
and reserve 143,420,000
Trading assets 24,655,000
Premises and fixed assets (including capitalized leases) 3,547,000
Other real estate owned 708,000
Investments in unconsolidated subsidiaries and
associated companies 1,220,000
Customers' liability to this bank on acceptances outstanding 2,270,000
Intangible assets 105,000
Other assets 7,084,000
------------
TOTAL ASSETS $231,396,000
------------
------------
LIABILITIES
Deposits:
In domestic offices $ 35,623,000
Noninterest-bearing $13,178,000
Interest-bearing 22,445,000
-----------
In foreign offices, Edge and Agreement
subsidiaries, and IBFs 130,945,000
Noninterest-bearing 8,792,000
Interest-bearing 122,153,000
-----------
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
Federal funds purchased 1,872,000
Securities sold under agreements to repurchase 398,000
Demand notes issued to the U.S. Treasury 0
Trading liabilities 17,042,000
Other borrowed money:
With a remaining maturity of one year or less 9,839,000
With a remaining maturity of more than one year 4,014,000
Mortgage indebtedness and obligations under capitalized leases 137,000
Bank's liability on acceptances executed and outstanding 2,316,000
Subordinated notes and debentures 4,700,000
Other liabilities 8,549,000
------------
TOTAL LIABILITIES $215,535,000
------------
------------
Limited-life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock $ 751,000
Surplus 6,895,000
Undivided profits and capital reserves 8,308,000
Net unrealized holding gains (losses)
on available-for-sale securities 590,000
Cumulative foreign currency translation adjustments (583,000)
------------
TOTAL EQUITY CAPITAL $ 15,961,000
------------
TOTAL LIABILITIES, LIMITED-LIFE
PREFERRED STOCK, AND EQUITY CAPITAL $231,396,000
------------
------------
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
and its true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
