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 ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
By: /s/ J. R. ▇▇▇▇▇▇, Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
STATE OF ILLINOIS)
)SS:
COUNTY OF PEORIA )
On the 9th day of June, 1989, before me personally came ▇. ▇. ▇▇▇▇▇▇▇▇,
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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Notary Public, State of Illinois
Official Seal
STATE OF ILLINOIS)
)SS.:
COUNTY OF ▇▇▇▇ )
On the 9th day of June, 1989, before me personally came J. R. ▇▇▇▇▇▇, 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/ ▇▇▇▇▇▇ ▇. Scaiff
Notary Public, State of Illinois
Official Seal