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 000 XX Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, 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/Xxxxxxx X. Xxxxxxxxxx
[Corporate Seal]
Attest:
/s/Xxxx X. Xxxxxxxx
CITIBANK, N.A., as Trustee
By /s/Xxxxxx X. Xxxxxxxx
[Corporate Seal]
Attest:
/s/
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK)
On the 18th day of December, 1996, before me personally came Xxxxxx X.
Xxxxxxxx, 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/ Xxxxx Xxxx
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
