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EXHIBIT 4.2
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ILLINOIS TOOL WORKS INC.
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
_________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 1990
_________________
Amending Indenture dated as of November 1, 1986
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FIRST SUPPLEMENTAL INDENTURE, dated as of the lst day of May, 1990, between
Illinois Tool Works Inc., a corporation incorporated under the laws of Delaware
(the "Company"), and ▇▇▇▇▇▇ Trust and Savings Bank, an Illinois banking
corporation ("▇▇▇▇▇▇" or the "Trustee").
WHEREAS, the Company and The First National Bank of Chicago ("First
National"), as trustee, entered into an Indenture, dated as of the lst day of
November, 1986 (the "Indenture"), providing for the creation, execution,
authentication and delivery of certain Securities of the Company;
WHEREAS, the Company, First National and ▇▇▇▇▇▇ entered into an Agreement
of Resignation of Trustee and Appointment of Successor, dated January 12, 1990,
pursuant to which First National resigned as trustee, the Company appointed
▇▇▇▇▇▇ as Trustee and ▇▇▇▇▇▇ accepted such appointment under the Indenture;
WHEREAS, the Company has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture in order to
supplement and amend the Indenture, by amending and adding certain provisions
thereof, to permit the Company to require, if it shall so elect, that the
Securities of any series be issued, in whole or in part, in the form of one or
more global securities and to make certain other changes;
WHEREAS, Section 10.01 of the Indenture provides, among other things, that
the Company, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental to the Indenture for the purpose, inter alia, of making
additional provisions in regard to matters or questions arising thereunder as
shall not adversely affect the interests of Holders of Securities of any series;
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WHEREAS, the Company and the Trustee desire to enter into this First
Supplemental Indenture for the purposes set forth in Section 10.01 of the
Indenture as referred to above; and
WHEREAS, all acts and things necessary to constitute this First
Supplemental Indenture a valid, binding and legal instrument of the Company have
been done and performed by the Company, and the execution and delivery of this
First Supplemental Indenture have in all respects been duly authorized by the
Company, and the Company, in the exercise of its vested legal right and power,
executes this First Supplemental Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the premises and the covenants herein contained and the
purchase and acceptance of the Securities issued hereunder by the Holders
thereof, and for other valuable consideration, the receipt and adequacy of which
are acknowledged, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit of the Holders from time to time of the
Securities, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
A. Relation to Indenture. This First Supplemental Indenture constitutes
an integral part of the Indenture.
B. Certain Terms. For all purposes of this First Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of the
Indenture.
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ARTICLE TWO
MODIFICATIONS OF THE INDENTURE
A. Amendment of Article One. Article One of the Indenture is amended as
follows:
(1) Section 1.01 is amended to add new definitions, in the appropriate
alphabetical sequence, as follows:
"Depositary:
The term 'Depositary' 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 Depositary by the Company
pursuant to Section 2.01 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter 'Depositary' shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such
person, 'Depositary' as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Securities of that
series.
"Global Security:
The term 'Global Security' means a Security evidencing all or part of a
series of Securities issued to, and registered in the name of, the
Depositary for such series (or its nominee) in accordance with Section
2.03.
(2) The definition of "authorized newspaper" in Section 1.01 is
amended by adding the words "or official language of the country of
publication" after the words "English language" and by deleting the words
"Chicago, Illinois" and inserting in lieu thereof the words "the place or
places of publication" in the first sentence of such definition.
(3) The definition of "business day" in Section 1.01 is amended by
adding at the end of the sentence the words "or, with reference to any
Securities of any series other than the 8 3/8% Notes Due November 1, 1993,
as set forth in the instrument establishing the series and in the
Securities of such series."
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(4) Section 1.02 is amended by adding the following terms and sections to
the table set forth therein. in appropriate alphabetical sequence:
"Market Exchange Rate.............................................14.08
Specified Currency................................................14.08"
B. Amendment of Article Two. Article Two of the Indenture is amended as
follows:
(1) Clauses (8) and (13) of Section 2.01 are amended to read in their
entirety as follows:
"(8) if other than denominations of $1,000, if registered, and
$5,000, if unregistered, and any integral multiple of the applicable
denominations for Securities denominated in Dollars, the denominations in
which the Securities of such series shall be issuable;
"(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered Securities, with or without
coupons; whether unregistered Securities may be exchanged for registered
Securities of such series and whether registered Securities may be
exchanged for unregistered Securities of such series (if permitted by
applicable laws and regulations) and the circumstances under which and the
place or places where any such exchanges, if permitted, may be made; and
whether the Securities of such series shall be issued in whole or in part
in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and whether any Global
Securities of such series shall be issuable initially in temporary form,
and whether any Global Securities of such series shall be issuable in
definitive form, with or without coupons, and, if so, whether beneficial
owners of interests in any such definitive Global Security may exchange
such interests for Securities of such series and the circumstances under
which and the place or places where any such exchange may occur;
(2) Section 2.01 is amended to renumber clauses (14) and (15) to (19) and
(20) and to add the following additional clauses:
"(14) if other than Dollars, the coin, or currency or currencies, or
currency unit or units in which the Securities of such series shall be
denominated and in which payment of the principal of (and premium, if any)
and interest, if any, on any of such Securities shall be payable;
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"(15) if the principal of (and premium, if any) and interest, if any,
on any of the Securities of such series are to be payable at the election
of the Company or a Holder thereof or under some or all other
circumstances, in a coin, or currency or currencies, or currency unit or
units other than that in which the Securities are denominated, the period
or periods within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of the
Securities are to be so payable, and any provision requiring the Holder to
bear currency exchange costs by deduction from such payments;
"(16) if the amount of payments of principal (and premium, if any)
and interest, if any, on any of the Securities of such series may be
determined with reference to a currency, currency unit, commodity or
financial or non-financial index or indices, then the manner in which such
amounts shall be determined;
"(17) whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of the
Securities and coupons, if any, of such series to any Holder who is not a
U.S. Person (including a definition of such term), in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether
the Company will have the option to redeem such Securities rather than pay
additional amounts (and the terms of any such option);"
"(18) the person to whom any interest on any registered Security of
such series shall be payable, if other than the person in whose name that
Security is registered at the close of business on the Record Date for
such interest, the manner in which, or the person to whom, any interest on
any unregistered Security of such series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining thereto
as they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary Global Security on an interest payment
date will be paid if other than in the manner provided in Section 4.01;"
(3) Article Two is further amended to renumber existing Section 2.03 as
Section 2.04, to appropriately renumber each Section thereafter, and to add a
new Section 2.03 to read as follows:
"SECTION 2.03. Global Securities. If Securities of a series are
issuable in whole or in part as Global Securities pursuant to Section
2.01, then, notwithstanding clause (8) of Section 2.01 and the provisions
of Section 2.04, such Global Securities shall represent such of the
Outstanding Securities of such series as shall be specified therein and
may provide that they shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities represented thereby may
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from time to time be reduced to reflect exchanges or redemptions. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions given by
such person or persons as shall be specified therein or in the Company
Direction to be delivered to the Trustee pursuant to Section 2.04 or
Section 2.07. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.07, the Trustee shall deliver and redeliver any
Global Security in the manner and upon written instructions given by the
person or persons specified therein or in the applicable Company
Direction. If a Company Direction pursuant to Section 2.04 or 2.07 has
been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Global Security
shall be in writing but need not comply with Section 14.05 and need not be
accompanied by an Opinion of Counsel.
"Notwithstanding the provisions of Sections 2.02 and 4.01, unless
otherwise specified pursuant to Section 2.01, payment of principal of (and
premium, if any) and interest, if any, on any Global Security shall be
made to the person or persons specified therein.
"If at any time the Depositary for the Global Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Global Securities of such series shall no longer be
eligible to serve as Depositary, the Company shall appoint a successor
Depositary with respect to the Global Securities of such series. If a
successor Depositary for the Global Securities of such series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 2.01 that such Securities be represented by one or
more Global Securities shall no longer be effective with respect to the
Global Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Direction for the authentication and
delivery of definitive Securities of such series, shall authenticate and
deliver, Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security
or Securities.
"The company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued in the form of
one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute,
and the Trustee, upon receipt of a Company Direction for the
authentication and delivery of definitive Securities of such series in
exchange for such Global Security or Securities, will authenticate and
deliver Securities of such series in definitive form and in an
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aggregate principal amount equal to the principal amount of such Global
Security or Securities being exchanged.
"Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such registered Securities
to, or upon the order of, the persons in whose names such Securities are
so registered.
"Unless otherwise specified by the Company pursuant to Section 2.01,
a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
"None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests."
(4) Section 2.06 (formerly Section 2.05) is amended by adding the words
"Subject to Sections 2.01 and 2.03," before the word "Upon" in the third
sentence of the first paragraph and before the word "At" in the beginning of the
third paragraph.
(5) Article Two is further amended to add new Sections 2.13 and 2.14, to
read in their entirety as follows:
"SECTION 2.13. Compliance with Certain Laws and Regulations. If any
unregistered Securities are to be issued in any series of Securities, the
Company shall use reasonable efforts to provide for arrangements and
procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that such unregistered Securities are sold or resold,
exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company, the Holders
and the Trustee.
"SECTION 2.14. Medium-Term Securities.
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Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be
necessary to deliver the Company Direction, Officers' Certificate,
supplemental indenture or Opinion of Counsel otherwise required pursuant to
Sections 2.01, 2.03, 2.04, 2.07 and Section 14.05 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued; provided that any subsequent
direction by the Company to the Trustee to authenticate Securities of such
series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such direction, the
statements made in the Officers' Certificate or supplemental indenture
delivered pursuant to Section 2.01 shall be true and correct as if made on
such date.
"An Officers' Certificate or supplemental indenture, delivered
pursuant to his Section 2.14 in the circumstances set forth in the
preceding paragraph, may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such
person) and that such persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture, such
terms and conditions of the Securities as are specified in such Officers'
Certificate or supplemental indenture."
C. Amendment of Article Three. Section 3.02 of the Indenture is amended
as follows:
(1) The fourth paragraph is amended to add the words "of like tenor
and terms" after the words "than all the Securities" and before the words
"of any series" in the first sentence of such paragraph.
(2) The fourth paragraph is further amended to add, after the last
sentence of such paragraph, the following sentence:
"If less than all the Securities of unlike tenor and terms of a series
are to be redeemed, the particular Securities to be redeemed shall be
selected by the Company."
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D. Amendment of Article Four. The last sentence of Section 4.01 of the
Indenture is amended by adding at the end of such sentence the words "or by wire
transfer to an account designated by such person."
E. Amendment of Article Fourteen. Article Fourteen of the Indenture is
amended as follows:
(1) Section 14.03 is amended to add the words "in Chicago, Illinois,
New York City and such other cities as shall be specified with respect to
such Securities" after the words "authorized newspaper" in the fourth
sentence of that Section.
(2) Section 14.05 is amended by adding the words "Except as otherwise
expressly provided in this Indenture" before the words "Upon any
application or demand" in the first paragraph of such Section.
(3) Article Fourteen is further amended by renumbering Sections 14.07
through 14.09 as Sections 14.09 through 14.11, and by adding the following
new Sections, to read as follows:
"SECTION 14.07. Moneys of Different Currencies To Be Segregated.
The Trustee shall segregate money, funds and accounts held by the
Trustee hereunder in one currency (or unit thereof) from any moneys,
funds or accounts in any other currencies (or units thereof),
notwithstanding any provision herein which would otherwise permit the
Trustee to commingle such amounts.
"SECTION 14.08. Payment To Be in Proper Currency. Other than as
provided herein or in the Security, an Officers' Certificate or a
supplemental indenture, the obligation of the Company to make any
payment of principal of (and premium, if any) and interest, if any,
on such Security shall not be discharged or satisfied by any tender
by the Company, or collection by the Trustee, in any currency or
currency unit other than that in which such Security is denominated
(the "Specified Currency"), except to the extent that the Trustee
timely holds for such payment the full amount of the Specified
Currency when due and payable. If any such tender or collection is
made in other than the Specified Currency, the Trustee may take such
actions as it considers appropriate to exchange such other currency
or currency unit for the Specified Currency. The
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costs and risks of any such exchange, including without limitation
the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall
or delinquency in the full amount of the Specified Currency then due
and payable and in no circumstances shall the Trustee be liable
therefor. The Company waives any defense of payment based upon any
such tender or collection which is not in the Specified Currency, or
which, when exchanged for the Specified Currency by the Trustee, is
less than the full amount of the Specified Currency then due and
payable.
Notwithstanding the foregoing, if a Specified Currency is not
available to make any payment of principal of (and premium, if any)
and interest, if any, on a Security denominated in other than Dollars
due to the imposition of exchange controls or other circumstances
beyond the Company's control, the Company shall be entitled to
satisfy its obligation by making such payment in Dollars on the basis
of the Market Exchange Rate on the date of such payment, or if such
Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate. For any Specified Currency,
Market Exchange Rate shall mean the noon buying rate in New York, New
York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
A. Ratification of Indenture. The Indenture, as amended and modified by
this First Supplemental Indenture, is in all respects ratified, confirmed and
approved.
B. Successors and Assigns of Company Bound by First Supplemental
Indenture. All the covenants, stipulations, promises and agreements in this
First Supplemental Indenture contained by or on behalf of the Company shall bind
its successors and assigns, whether so expressed or not.
C. First Supplemental Indenture to Be Construed in Accordance with the
Laws of the State of Illinois. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of Illinois.
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D. Provisions Required by Trust Indenture Act of 1939 to Control. If and
to the extent that any provision of this First Supplemental Indenture limits,
qualities or conflicts with another provision included in the Indenture which is
required to be included in the Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
E. First Supplemental Indenture May be Executed in Counterparts. This
First Supplemental Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
F. Separability Clause. In case any provisions in this First Supplemental
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.
The Trustee accepts the trusts in this First Supplemental Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, ILLINOIS TOOL WORKS INC. and ▇▇▇▇▇▇ TRUST AND SAVINGS
BANK have caused this First Supplemental Indenture to be duly executed, and
their respective corporate seals to be affixed and attested, all as of the day
and year first above written.
ILLINOIS TOOL WORKS INC.
[CORPORATE SEAL] By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Secretary
[CORPORATE SEAL] ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By /s/ ▇. ▇. ▇▇▇▇▇
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Vice President
Attest:
/s/ ▇. ▇▇▇▇▇▇▇
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Assistant Secretary
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STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On this _3rd__ day of May, 1990, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇
to me known, who, being by me duly sworn, did depose and say that he resides in
▇▇▇▇ County, Illinois; that he is Vice President of ILLINOIS TOOL WORKS INC.,
one of the parties described in and which executed the above instrument, and
that he signed his name thereto by authority of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the day and year in this
certificate first above written.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On this _3rd_ day of May, 1990, before me personally came __R.G. Mason___
to me known, who, being by me duly sworn, did depose and say that he resides in
Chicago, Illinois; that he is Vice President of ▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
one of the parties described in and which executed the above instrument, and
that he knows the corporate seal of said corporation; that the seal affixed to
the 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.
IN WITNESS WHEREOF, I have hereunto, set my hand the day and year in this
certificate first above written.
/s/ ▇. ▇▇▇▇▇▇▇
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Notary Public
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