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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
November 15, 1996
(Date of earliest event reported)
ITT CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Nevada 1-13960 88-0340591
(State or Other (Commission
Jurisdiction of File Number) (I.R.S. Employer
of Incorporation) Identification Number)
1330 Avenue of the Americas, New York, New York 10019-5490
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(212) 258-1000
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7. Financial Statements, Pro Forma Financial Infomation and Exhibits
(c) Exhibits.
The following exhibits relate to the Registrant's Registration Statement
on Form S-3 (File 33-63445):
1 - Underwriting Agreement between ITT Corporation and Goldman, Sachs &
Co., as Representative of the several Underwriters, dated November 12,
1996.
4.1 - Definitive Form of 6 3/4% Notes Due November 15, 2003.
4.2 - Amended and Restated Indenture between ITT Corporation (formerly
known as ITT Destinations, Inc.), Issuer, and The First National Bank of
Chicago, Trustee, dated as of November 15, 1995, as Amended and Restated
as of December 19, 1995.
5 - Opinion of Margaret M. Foran, Esq. on behalf of ITT Corporation, in
respect of the legality of the 6 3/4% Notes Due November 15, 2003.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
ITT CORPORATION
By: /s/ Margaret M. Foran
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Margaret M. Foran
Associate General Counsel and
Assistant Secretary
Dated: November 15, 1996
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EXHIBIT INDEX
The following exhibits relate to the Registrant's Registration
Statement on Form S-3 (File No. 33-63445):
Exhibit No. Description Location
1 --- Underwriting Agreement between ITT
Corporation and Goldman, Sachs &
Co., as Representative of the
several Underwriters, dated
November 12,
1996................................ Filed Herewith
4.1 --- Definitive Form of 6 3/4% Notes
Due November 15,
2003................................ Filed Herewith
4.2 --- Amended and Restated Indenture
between ITT Corporation (formerly
known as ITT Destinations, Inc.),
Issuer, and The First National
Bank of Chicago, Trustee, dated as
of November 15, 1995, as Amended
and Restated as of December 19,
1995................................ Filed Herewith
5 --- Opinion of Margaret M. Foran, Esq.
on behalf of ITT Corporation, in
respect of the legality of the 6
3/4% Notes Due November 15,
2003................................ Filed Herewith
Exhibit 1
ITT CORPORATION
DEBT SECURITIES
Underwriting Agreement
November 12, 1996
To the Representative or
Representatives named in
Schedule A hereto of the
Underwriters named in
Schedule B hereto
Gentlemen:
The undersigned ITT Corporation, a Nevada corporation (the
"Company"), confirms its agreement with the several underwriters named
in Schedule B hereto (the "Underwriters"), as set forth below. If the
firm or firms named in Schedule B hereto include only the firm or
firms named in Schedule A hereto (the "Representatives"), then the
terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
The Company proposes to issue and sell debt securities of
the title and amount set forth in Schedule A hereto (the
"Securities"), to be issued under the indenture identified in Schedule
A hereto (the "Indenture") between the Company and the trustee named
therein (the "Trustee"). If so indicated in Schedule A hereto, the
Company also proposes to issue warrants (the "Warrants") to purchase
the aggregate principal amount indicated in Schedule A hereto of the
debt securities identified in Schedule A hereto (the "Warrant
Securities") to be issued pursuant to the provisions of the Indenture.
The Warrants, if any, are to be issued pursuant to the provisions of
the Warrant Agreement identified in Schedule A hereto (the "Warrant
Agreement") between the Company and the Warrant Agent named in
Schedule A hereto (the "Warrant Agent").
1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement on Form S-3 (with the file
number set forth in Schedule A hereto), including a prospectus,
relating to the Securities has been
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prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, has been filed with
the Commission and has become effective. Such registration statement
and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement; any such amendment or supplement
was so prepared and filed and any such amendment has become effective.
A prospectus supplement ("Prospectus Supplement") relating to the
Securities, the Warrants, if any, and the Warrant Securities, if any,
has been so prepared and will be filed pursuant to Rule 424 under the
Act. Copies of such registration statement and prospectus, any such
amendment or supplement, the Prospectus Supplement and all documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement (including one conformed
copy of the registration statement and of each amendment thereto for
each of you and for counsel for the Underwriters) have been delivered
to you. Such registration statement and prospectus, as amended or
supplemented to the date of this Agreement and as supplemented by the
Prospectus Supplement are herein referred to as the "Registration
Statement" and the "Prospectus". Any reference herein to the
Registration Statement or Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein which were
filed with the Commission on or prior to the date of this Agreement,
and any reference to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement or Prospectus shall be
deemed to refer to and include the filing of any document with the
Commission deemed to be incorporated by reference therein after the
date of this Agreement.
(b) The registration statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Registration Statement and the Prospectus, at the date
of this Agreement and at the Closing Date (as hereinafter defined),
and any amendment or supplement thereto, conformed or will conform in
all material respects to the requirements of the Act, the Trust
Indenture Act, and the Rules and Regulations; and no such document
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
except that the foregoing shall not apply to statements in or
omissions from any such document in reliance upon, and in conformity
with, written information furnished to the Company by you, or by any
Underwriter through you, specifically for use in the preparation
thereof.
(c) The documents incorporated by reference in the
Registration Statement or Prospectus, when they became effective or
were filed with the
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Commission, as the case may be, under the Securities Exchange Act of
1934 (the "Exchange Act"), conformed, and any documents so filed and
incorporated by reference after the date of this Agreement will, when
they are filed with the Commission, conform, in all material respects
to the requirements of the Act and the Exchange Act, as applicable,
and the Rules and Regulations of the Commission thereunder.
(d) The Indenture, the Warrant Agreement, if any, the
Securities, the Warrants, if any, and the Warrant Securities, if any,
have been duly authorized; the Indenture has been duly executed and
delivered and duly qualified under the Trust Indenture Act; and the
Indenture, the Warrant Agreement, if any, when duly executed and
delivered, and the Securities, the Warrants, if any, and the Warrant
Securities, if any, when duly executed, authenticated, issued and
delivered as contemplated hereby, by the Indenture, by the Delayed
Delivery Contracts (as hereinafter defined), if any, and by the
Warrant Agreement, if any, constitute, in the case of the Indenture,
and will constitute, in all other cases, valid and legally binding
obligations of the Company in accordance with their respective terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(e) Except as described in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in, or any adverse development which
materially affects, the respective business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole from the dates as of which information is given in
the Registration Statement and the Prospectus.
(f) Arthur Andersen LLP, whose reports appear in the
Company's Annual Report on Form 10-K for the year ended December 31,
1995, which is incorporated in the Prospectus by reference, are, and
at the time of the issuance of said report were, independent public
accountants as required by the Act and the Rules and Regulations.
(g) Each of the Company and its subsidiaries has been duly
organized, is validly existing and in good standing under the laws of
the jurisdiction of its incorporation, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged (subject, in the case of subsidiaries of the
Company, and in the case of the Company with reference to such
qualification and standing and such power and authority, to
<PAGE>
exceptions which in the aggregate do not materially adversely affect
the business or operations of the Company and its subsidiaries taken
as a whole.
(h) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the knowledge of the
General Counsel of the Company, is there any action, suit or
proceeding threatened, which might reasonably be expected to result in
a material adverse change in the financial condition, results of
operations or business of the Company and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration
Statement.
2. Purchase, Sale and Delivery of Securities. On the basis
of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule A hereto, the amount of
Securities, and the amount of Warrants, if any, set forth opposite the
name of such Underwriter in Schedule B hereto reduced by such
Underwriter's portion of any Contract Securities (as hereinafter
defined), determined as provided below.
If so authorized in Schedule A hereto, the Underwriters may
solicit offers from institutional investors of the types set forth in
the Prospectus to purchase Securities and Warrants, if any, from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Such contracts shall be substantially in the form of
Exhibit I hereto but with such changes therein as the Company may
approve. Securities and Warrants, if any, to be purchased pursuant to
Delayed Delivery Contracts are herein called "Contract Securities".
When Delayed Delivery Contracts are authorized in Schedule A, the
Company will enter into a Delayed Delivery Contract in each case where
a sale of Contract Securities arranged through you has been approved
by the Company but, except as the Company may otherwise agree, such
Delayed Delivery Contracts must be for at least the minimum amount of
Contract Securities set forth in Schedule A hereto, and the aggregate
amount of Contract Securities may not exceed the amount set forth in
such Schedule. The Company will advise you not later than 10:00 a.m.,
New York City time, on the second full business day preceding the
Closing Date (or at such later time as you may otherwise agree) of
sales of the Contract Securities which have been so approved. You and
the other Underwriters will not have any responsibility in respect of
the validity or performance of Delayed Delivery Contracts.
The amount of Securities and Warrants, if any, to be
purchased by each Underwriter as set forth in Schedule B hereto shall
be reduced by an amount which shall bear the same proportion to the
total amount of Contract Securities as the
<PAGE>
amount of Securities and Warrants, if any, set forth opposite the name
of such Underwriter bears to the total amount of Securities and
Warrants, if any, set forth in Schedule B hereto, except to the extent
that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company; provided, however, that the
total amount of Securities and Warrants, if any, to be purchased by
all Underwriters shall be the total amount of Securities and Warrants,
if any, set forth in Schedule B hereto less the aggregate amount of
Contract Securities.
The Securities and Warrants, if any, to be purchased by the
Underwriters will be delivered by the Company to you for the accounts
of the several Underwriters at the office specified in Schedule A
hereto against payment of the purchase price therefor, unless
otherwise specified in Schedule A hereto, by certified or official
bank check or checks drawn on or by a bank in New York City payable in
same-day funds to the order of the Company at the office, on the date
and at the times specified in such Schedule A, or at such other time
not later than eight full business days thereafter, as you and the
Company determine, such time being herein referred to as the "Closing
Date". Such Securities and Warrants, if any, will be prepared in
definitive form and in such authorized denominations and registered in
such names as you may require upon at least two business days' prior
notice to the Company and will be made available for checking and
packaging at the office at which they are to be delivered on the
Closing Date (or such other office as may be specified for that
purpose in Schedule A) at least one business day prior to the Closing
Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for
Securities and Warrants, if any, to be purchased by such Underwriter.
Any such payment by you shall not relieve any such Underwriter of any
of its obligations hereunder.
The Company will pay to you on the Closing Date for the
accounts of the Underwriters any fee, commissions or other
compensation which is specified in Schedule A hereto. Such payment
will be made by certified or official bank check drawn on or by a bank
in New York City payable in same-day funds.
The Company shall not be obligated to deliver any Securities
and Warrants, if any, except upon payment for all Securities and
Warrants, if any, to be purchased pursuant to this Agreement as herein
provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to
<PAGE>
purchase the Securities and Warrants, if any, which the defaulting
Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities and Warrants, if
any, set forth in Schedule A hereto to be purchased by each remaining
non-defaulting Underwriter set forth therein bears to the aggregate
principal amount of Securities and Warrants, if any, set forth therein
to be purchased by all the remaining non-defaulting Underwriters;
provided that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Securities and Warrants, if any, if the
aggregate principal amount of Securities and Warrants, if any, which
the defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the total principal amount of Securities and
Warrants, if any, and any remaining non-defaulting Underwriter shall
not be obligated to purchase more than 110% of the principal amount of
Securities and Warrants, if any, set forth in Schedule B hereto to be
purchased by it. If either of the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right,
but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities and Warrants, if any. If,
pursuant to the previous sentence, the remaining Underwriters or other
underwriters satisfactory to the Representative do not elect to
purchase the Securities and Warrants, if any, which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses as set forth in
Section 3(j) hereof.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages
caused by its default. If other underwriters are obligated or agree to
purchase the Securities and Warrants, if any, of a defaulting
Underwriter, either the Representative or the Company may postpone the
Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, any
Prospectus or in any other document or arrangement.
3. Covenants. The Company covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and will notify you
promptly of such filing. During the period in which a prospectus
relating to the Securities, Warrants, if any, and Warrant
Securities, if any, is required to be delivered under the Act,
the Company will notify you promptly of the time when any
<PAGE>
amendment to the Registration Statement has become effective or
any subsequent supplement to the Prospectus has been filed and of
any request by the Commission for any amendment of or supplement
to the Registration Statement or Prospectus or for additional
information; it will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus which, in your opinion, may
be necessary or advisable in connection with the distribution of
the Securities and Warrants, if any, by the Underwriters; it will
file no amendment or supplement to the Registration Statement or
Prospectus (other than any prospectus supplement relating to the
offering of securities other than the Securities, the Warrants,
if any, and the Warrant Securities, if any, registered under the
Registration Statement or any document required to be filed under
the Exchange Act which upon filing is deemed to be incorporated
by reference therein) to which you shall reasonably object by
notice to the Company after having been furnished a copy a
reasonable time prior to the filing; and it will furnish to you
at or prior to the filing thereof a copy of any such prospectus
supplement or any document which upon filing is deemed to be
incorporated by reference in the Registration Statement or
Prospectus.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the
qualification of the Securities, Warrants, if any, and Warrant
Securities, if any, for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceeding for any such
purpose; and it will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) Within the time during which a prospectus relating to
the Securities, Warrants, if any, and Warrant Securities, if any,
is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it
by the Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the
Securities, Warrants, if any, and Warrant Securities, if any, as
contemplated by the provisions hereof and the Prospectus. If
during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act,
<PAGE>
the Company will promptly notify you and will amend or supplement
the Registration Statement or Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect
such compliance.
(d) The Company will use its best efforts to qualify the
Securities, Warrants, if any, and Warrant Securities, if any, for
sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in
effect so long as required for the distribution of the
Securities, Warrants, if any, and Warrant Securities, if any,
except that the Company shall not be required in connection
therewith to qualify as a foreign corporation or to execute a
general consent to service of process in any state. The Company
will also arrange for the determination of the eligibility for
investment for the Securities, Warrants, if any, and Warrant
Securities, if any, under the laws of such jurisdictions as you
reasonably request.
(e) The Company will furnish to the Underwriters copies of
the Registration Statement and Prospectus (including all
documents incorporated by reference therein), and all amendments
and supplements to the Registration Statement or Prospectus which
are filed with the Commission during the period in which a
prospectus relating to the Securities, Warrants, if any, and
Warrant Securities, if any, is required to be delivered under the
Act (including all documents filed with the Commission during
such period which are deemed to be incorporated by reference
therein), in each case in such quantities as you may from time to
time reasonably request.
(f) So long as any of the Securities, and the Warrant
Securities, if any, are outstanding, the Company agrees to
furnish to you (i) as soon as available, copies of all financial
reports to the Company's security holders generally and all
reports and financial statements filed by or on behalf of the
Company with the Commission and the New York Stock Exchange and
(ii) from time to time such other information concerning the
Company as you may reasonably request.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not
later than 15 months after the end of the Company's current
fiscal quarter, an earnings statement (which need not be audited)
covering a 12-month period beginning after the date upon which
the Prospectus Supplement is filed pursuant to Rule 424 under the
Act which shall satisfy the provisions of Section 11(a) of the
Act.
<PAGE>
(h) The Company will apply the net proceeds of the sale of
the Securities, Warrants, if any, and Warrant Securities, if any,
as set forth in the Prospectus.
(i) The Company will not, without your consent, offer or
sell, or publicly announce its intention to offer or sell, any
debt securities denominated in U.S. dollars, except for the
issuance of (y) commercial paper or (z) bank borrowings in the
ordinary course of the Company's business, during the period
beginning the date of this Agreement and ending the later of the
Closing Date or the date on which any price restrictions on the
sale of the Securities are terminated, but in no event later than
five business days after the Closing Date.
(j) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is
terminated, will pay all expenses incident to the performance of
the Company's obligations hereunder, will pay the expenses of
printing all documents relating to the offering, and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with the
matters referred to in Section 3(d) hereof and the preparation of
memoranda relating thereto, for any filing fee of the New York
Stock Exchange, Inc. relating to the Securities, Warrants, if
any, and Warrant Securities, if any, and for any fees charged by
investment rating agencies for rating the Securities and the
Warrant Securities, if any. If the sale of Securities and
Warrants, if any, provided for in this Agreement is not
consummated by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be
performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for
all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in
connection with their preparing to market and marketing the
Securities and Warrants, if any, or in contemplation of
performing their obligations hereunder; provided that, except as
provided in this subsection (j) and in Section 7, the
Underwriters shall pay their own costs and expenses, including
the fees and expenses of their counsel, any transfer taxes on the
Securities and Warrants, if any, which they may sell and the
expenses of advertising any offering of the Securities and
Warrants, if any, made by the Underwriters. The Company shall not
in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this
Agreement.
<PAGE>
4. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter and each person, if any,
participating with the Underwriters in the distribution of the
Securities and Warrants, if any, who is an "underwriter" within the
meaning of Section 2(11) of the Act with respect to the distribution
of the Securities and Warrants, if any (the "Participants"), and each
person, if any, who controls any Underwriter within the meaning of the
Act or any Participant from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to
which that Underwriter, Participant or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus, any document
incorporated by reference in any of the foregoing documents or the
Registration Statement or any Prospectus, as amended or supplemented,
or arises out of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse each Underwriter, Participant and such controlling person,
as incurred, for any legal and other expenses reasonably incurred by
that Underwriter, Participant or controlling person in investigating
or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any Prospectus or any
amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter specifically for inclusion therein or was contained in
that part of the Registration Statement consisting of the Form T-1;
and provided further, that the indemnity agreement contained in this
Section 4(a) with respect to losses, claims, damages, liabilities or
actions arising out of or based upon any untrue statement or alleged
untrue statement made in, or omission or alleged omission from, any
Prospectus shall not inure to the benefit of any Underwriter,
Participant or any person controlling such Underwriter or Participant
from whom the person asserting any such losses, claims, damages,
liabilities or action purchased the Securities with respect to which
such losses, claims, damages, liabilities or actions are asserted, if
the Underwriter or Participant failed to send or give a copy of any
Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in any such Prospectus was corrected
in an amended or supplemented Prospectus, unless such failure resulted
from non-compliance by the Company with Section 3(e) hereof. For
purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include
<PAGE>
the documents incorporated therein by reference, and no Underwriter or
Participant shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Prospectus
to any person other than a person to whom such Underwriter or
Participant has delivered such incorporated documents in response to a
written request therefor. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter, Participant or any controlling person.
(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and any person
who controls the Company within the meaning of the Act from and
against any loss, claim, damage or liability, joint or several, and
any action in respect thereof, to which the Company or any such
director, officer, or controlling person may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus or arises out of, or is based
upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the Statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representative by or
on behalf of such Underwriter specifically for inclusion therein, and
shall reimburse the Company for any legal and other expenses
reasonably incurred by the Company or any such director, officer, or
controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action. The
foregoing indemnity agreement is in addition to any liability which
any Underwriter may otherwise have to the Company or any of its
directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under
Section 4(a) or 4(b) above of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party in writing of the claim or
the commencement of that action, provided that the failure to notify
the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party except to the extent the
indemnifying party is prejudiced thereby. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party; provided, however, if the defendants in any such
<PAGE>
action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to represent such indemnified party
in connection with such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 4 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
(other than reasonable costs of investigation) unless (i) the
indemnified party shall have employed such counsel in accordance with
the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not, in connection with any
one such action, or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses with respect to any period during the pendency of such action
or similar or related actions of more than one separate firm of
attorneys for all indemnified parties so named, designated in writing
by the Representative if the indemnifying party is the Company or by
the Company if the indemnifying party is an Underwriter, it being
further understood, however, that the firm of attorneys so designated
may be changed from time to time with respect to different periods
during the pendency of such action or similar or related actions),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnifying party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party. The indemnifying party shall not be liable for any
settlement of any action or claim effected without its consent, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 4
shall for any reason be unavailable to an indemnified party under
Section 4(a) or 4(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters and Participants on the
other from the offering of the Securities and Warrants, if any, or
(ii) if the allocation provided by clause (i) above 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
<PAGE>
also the relative fault of the Company on the one hand and the
Underwriters and Participants on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters and Participants on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Securities and Warrants, if any, (before deducting expenses) received
by the Company bear to the total underwriting discounts and
commissions received by the Underwriters and the Participants with
respect to such offering, in each case as set forth in the table on
the cover page of the Prospectus. The relative faults shall be
determined by reference to whether the 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 the
Underwriters, the intent of the parties and their relative 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 contributions pursuant to this
Section 4(d) were to be determined by pro rata allocation (even if the
Underwriters and Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to
above in this Section 4(d) shall be deemed to include, for purposes of
this Section 4(d), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 4(d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities and Warrants, if any, underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to
pay by reason of any 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 4(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements,
if any, with respect to the public offering of the Securities set
forth in the first and third paragraphs under the caption
"Underwriting" in the Prospectus Supplement are correct and were
furnished in writing to the Company by the Representative by or on
behalf of the several Underwriters for inclusion in the Registration
Statement and the Prospectus.
<PAGE>
(f) The indemnity agreements contained in this Section 4 and
the representations, warranties and agreements of the Company in
Section 1 and Section 3 shall survive the delivery of the Securities
and Warrants, if any, and shall remain in full force and effect,
regardless of any termination of this Agreement or any investigation
made by or on behalf of any indemnified party.
5. Conditions Subsequent. The obligations of the
Underwriters under this Agreement may be terminated by the
Representative, in its absolute discretion, by notice given to and
received by the Company prior to delivery of and payment for the
Securities and Warrants, if any, if, on or after the date hereof there
shall have occurred any of the following: (a) trading in securities
generally on the New York Stock Exchange is suspended or materially
limited, or minimum prices are established on the New York Stock
Exchange, or (b) a banking moratorium is declared by either Federal or
New York State authorities, or (c) the outbreak or material escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this clause (c) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities and Warrants, if
any, on the terms and in the manner contemplated by the Prospectus.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Securities
and Warrants, if any, as provided herein shall be subject to the
accuracy, as of the date hereof and the Closing Date (as if made at
the Closing Date), of the representations and warranties of the
Company herein, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact which in
your opinion is material, or omits to state a fact which in your
opinion is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
<PAGE>
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have
been any material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, taken as a whole, or any material adverse change,
or any development involving a prospective material adverse
change in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and
its subsidiaries, taken as a whole, or any downgrading in the
rating accorded any securities of the Company by Moody's
Investors Service, Inc. or Standard and Poor's Ratings Group
which, in your judgment, makes it impractical or inadvisable to
offer or deliver the Securities on the terms and in the manner
contemplated in the Prospectus.
(d) Margaret M. Foran, as counsel for the Company, or such
other counsel for the Company as shall be satisfactory to you,
shall have furnished to you such counsel's opinion, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is a
validly existing corporation in good standing under the laws
of Nevada, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified and is in good
standing as a foreign corporation in each country or
jurisdiction wherein the character of property owned or held
under lease by it, or the nature of the business transacted
by it makes such qualification necessary (except where the
failure to so qualify would not have a material adverse
effect upon the Company and its subsidiaries taken as a
whole);
(ii) the Indenture and the Warrant Agreement, if any,
have been duly authorized, executed and delivered, and the
Indenture has been qualified under the Trust Indenture Act;
the Indenture and the Warrant Agreement, if any, constitute
valid and legally binding instruments in accordance with
their respective terms; the Securities, the Warrants, if
any, and the Warrant Securities, if any, have been duly
authorized, and the Securities and Warrants, if any,
delivered on the Closing Date have been duly executed,
authenticated, issued and delivered; the Securities and
Warrants, if any, delivered on the Closing Date constitute,
any Contract Securities when executed, authenticated, issued
and delivered in accordance with the Delayed Delivery
Contracts, if any, the Warrant Agreement, if any, and the
Indenture will constitute, and the Warrant Securities, if
any, when executed, authenticated, issued and delivered
<PAGE>
pursuant to the Warrant Agreement, if any, and the Indenture
will constitute, valid and legally binding obligations of
the Company enforceable in accordance with their respective
terms and the terms of the Indenture and the Warrant
Agreement, if any, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities,
Warrants, if any, and Warrant Securities, if any, conform to
the description thereof in the Prospectus;
(iii) the Registration Statement has become effective
under the Act and to the best knowledge of such counsel no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of such counsel,
threatened by the Commission;
(iv) each part of the Registration Statement, when such
part became effective, and the Registration Statement and
the Prospectus, and any amendment or supplement thereto,
complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; such counsel has no reason to believe
that either any part of the Registration Statement when such
part became effective, or the Registration Statement and the
Prospectus or any amendment or supplement thereto contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and the
documents incorporated by reference in the Registration
Statement or Prospectus, when they became effective under
the Act or were filed with the Commission under the Exchange
Act, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder; it being understood that such counsel
need express no opinion as to the financial statements or
other financial or statistical data included in any of the
documents mentioned in this clause;
(v) the descriptions in the Registration Statement and
Prospectus of legal and governmental proceedings, contracts
and other documents are accurate and fairly present the
information required to be shown; and such counsel does not
know of any statutes or legal or governmental proceedings
required to be described in the Prospectus
<PAGE>
which are not described as required, or of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus (or then required to be
filed under the Exchange Act if upon such filing they would
be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement which are not
described and filed as required;
(vi) to the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or
by-laws, or in default under any material agreement,
indenture or instrument;
(vii) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company; the performance thereof and the consummation of the
transactions therein contemplated (including, without
limitation, the issuance of the Warrant Securities, if any,
upon the exercise of the Warrants, if any) will not result
in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
agreement or instrument known to such counsel to which the
Company is a party or by which it is bound or to which any
of the property of the Company is subject, the Company's
charter or by-laws, or any order, rule or regulation known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order
of, or filing with, any court or governmental agency or body
is required for the consummation of the transactions
contemplated by this Agreement and any Delayed Delivery
Contracts in connection with the issuance or sale of the
Securities (including the Contract Securities, if any),
Warrants, if any, or Warrant Securities, if any, by the
Company, except such as have been obtained under the Act and
the Trust Indenture Act and such as may be required under
state securities laws in connection with the sale of the
Securities, Warrants, if any, and Warrant Securities, if
any; and
(viii) the Company is not an "investment company"
within the meaning of that term as defined in the Investment
Company Act of 1940, as amended, and is not subject to
regulation under said Act.
In rendering the opinion set forth in clause (i), counsel
for the Company may rely, as to matters of Nevada law, upon the
opinion of Roberto Rivera-Soto or such other counsel as may be
satisfactory to you.
<PAGE>
(e) You shall have received from the Company a certificate,
dated the Closing Date, of its Chairman or its Vice Chairman or
its President or a Vice President stating that:
(i) the representations, warranties and agreements of
the Company in Section 1 are true and correct as of the
Closing Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Section 6(a) have been fulfilled; and
(ii) such officer has carefully examined the
Registration Statement and the Prospectus and, in such
officer's opinion, with respect to the Company (A) as of the
date of the Prospectus, the Registration Statement and the
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and (B) since the date of
the Prospectus, no event has occurred which should have been
set forth in a supplement to or amendment of the Prospectus
which has not been set forth in such a supplement or
amendment.
(f) You shall have received from Cravath, Swaine & Moore,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the
Securities, the Warrants, if any, the Warrant Securities, if any,
the Indenture, the Warrant Agreement, if any, the Registration
Statement, the Prospectus and other related matters as you may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) You shall have received on the Closing Date a letter
from Arthur Andersen LLP, addressed to the Underwriters and dated
the Closing Date, substantially to the effect as the draft
delivered on the date hereof appropriately updated, with respect
to the Registration Statement and Prospectus at the time of this
Agreement and confirming that they are independent public
accountants within the meaning of the Rules and Regulations.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance
satisfactory to Cravath, Swaine & Moore, counsel for the Underwriters.
<PAGE>
7. Expense Reimbursement. If this Agreement shall be
canceled or terminated by the Underwriters on any of the grounds
referred to or specified in Section 6 hereof, or because of any
failure or refusal on the part of the Company to comply with any of
the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Underwriters severally for all their
out-of-pocket expenses (including the fees and expenses of their
counsel) reasonably incurred by them in connection with the subject
matter of this Agreement.
8. Notices. All notices or communications hereunder shall be
in writing and if sent to you, shall be mailed, delivered or
telegraphed and confirmed to you at your address set forth for that
purpose in Schedule A hereto or, if sent to the Company shall be
mailed, delivered or telegraphed and confirmed to the Company at 1330
Avenue of the Americas, New York, New York 10019-5490, Attention of
Corporate Secretary. Notices to any Underwriter pursuant hereto shall
be mailed, delivered or telegraphed and confirmed to such
Underwriter's address furnished to the Company in writing for the
purpose of communications hereunder. Any party to this Agreement may
change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
9. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Underwriters and their respective
successors and the controlling persons, officers and directors
referred to in Section 4 and no other person will have any right or
obligation hereunder.
In all dealings with the Company under this Agreement you
shall act on behalf of each of the several Underwriters, and any
action under this Agreement taken by you or by any one of you
designated in Schedule A hereto will be binding upon all the
Underwriters.
10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. Counterparts. This Agreement may be executed by one or
more of you in one or more counterparts, each of which shall
constitute an original and all of which taken together shall
constitute one and the same Agreement.
If the foregoing correctly sets forth our Agreement, please
so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company
and the several Underwriters.
<PAGE>
Alternatively, the execution of this Agreement by the
Company and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written
communications.
ITT CORPORATION,
by
Title:
ACCEPTED at New York, New York,
as of the date first above
written on behalf of ourselves
and the other Underwriters, if
any, named in Schedule B hereto.
GOLDMAN, SACHS & CO.,
by______________________________
(Goldman, Sachs & Co.)
<PAGE>
SCHEDULE A
Underwriting Agreement dated: November 12, 1996
Registration Statement No. 33-63445
Representative: Goldman, Sachs & Co.
Title of Securities: 6 3/4% Senior Notes due 2003
CUSIP Number: 450679 BV6
Amount of Securities: $250,000,000
Maturity Date: November 15, 2003
Interest Rate: 6 3/4%
Redemption: Not redeemable prior to maturity, except pursuant
to gaming laws.
Indenture: Dated November 15, 1995, between ITT Corporation,
Issuer, and the First National Bank of Chicago, Trustee, as
amended and restated as of December 19, 1995.
Purchase Price: 99.160%, plus accrued interest, if any, from
November 15, 1996.
Depository: The Depository Trust Company
Title of Warrant Securities: N/A
Amount of Warrant Securities: N/A
Maturity Date: N/A
Interest Rate: N/A
Title of Warrant Agreement: N/A
Warrant Agent: N/A
Number of Warrants: per each $ N/A principal amount of
Warrant Securities
<PAGE>
Exercise Period: N/A
Exercise Price: N/A
Warrant Securities accrue interest from N/A 19
Delayed Delivery: N/A
Fee: N/A
Minimum principal amount of each Contract: N/A
Maximum aggregate principal amount of all Contracts: N/A
Closing: November 15, 1996.
Office for delivery of Securities, and Warrants, if any:
Goldman, Sachs & Co.
Office for payment for Securities, and Warrants, if any:
Cravath, Swaine & Moore
Date and time of Closing: 9:30 A.M., Friday, November 15,
1996
Office for Checking Securities, and Warrants, if any: The
First National Bank of Chicago
Underwriting commissions or other compensation: N/A
Underwriter designated pursuant to Section 9: Goldman, Sachs
& Co.
Address for notices per Section 8: Goldman, Sachs & Co.
85 Broad Street,
New York, NY 10004
<PAGE>
SCHEDULE B
Principal Amount of
6 3/4% Notes to
Underwriter be Purchased
Goldman, Sachs & Co.......... $ 50,000,000
Chase Securities Inc......... 50,000,000
Lazard Freres & Co. LLC...... 50,000,000
J.P. Morgan Securities Inc... 50,000,000
UBS Securities LLC........... 50,000,000
------------
Total $250,000,000
============
Exhibit 4.1
[FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRIC- TIONS SET FORTH IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.
Number * $*
ITT CORPORATION
6 3/4% NOTE DUE NOVEMBER 15, 2003
CUSIP 450679 BV6
SEE REVERSE FOR
CERTAIN DEFINITIONS
ITT CORPORATION, a Nevada corporation (herein called the
"Company"), for value received, hereby promises to pay to CEDE & CO.,
AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, or registered assigns the
principal sum of * on November 15, 2003, in such coin or currency of
the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, and to pay
interest, semi-annually on May 15 and November 15 of each year, on
said principal sum, in like coin or currency, at the
<PAGE>
rate of 6 3/4% per annum, from the May 15 or the November 15, as the
case may be, next preceding the date of this Note to which interest on
the Notes has been paid or duly provided for unless the date hereof is
the date to which interest on the Notes has been paid or duly provided
for, in which case from the date of this Note, or unless no interest
has been paid or duly provided for on the Notes since the original
issue date (as defined in the Indenture referred to on the reverse
hereof) of this Note in which case from the May 15 or November 15 next
preceding such original issue date (unless such original issue date is
a May 15 or November 15, in which case from such original issue date),
until payment of said principal sum has been made or duly provided
for. Notwithstanding the foregoing, if the date hereof is after April
30 or October 31, as the case may be, and before the following May 15
or November 15, this Note shall bear interest from such May 15 or
November 15; provided, however, that if the Company shall default in
the payment of interest due on such May 15 or November 15, then this
Note shall bear interest from the next preceding May 15 or November 15
to which interest on the Notes has been paid or duly provided for, or,
if no interest has been paid or duly provided for on the Notes since
the original issue date of this Note, from the May 15 or November 15
next preceding such original date unless such original issue date is a
May 15 or November 15, in which case from such original issue date.
The interest so payable on any May 15 or November 15 will, except as
otherwise provided in the Indenture referred to on the reverse hereof
be paid to the person in whose name this Note is registered at the
close of business on the April 30 preceding such May 15 or the October
31 preceding such November 15, whether or not such April 30 or October
31 is a Business Day.
Payments of interest, other than interest payable at
Maturity (or on the date of redemption, if a Note is redeemed by the
Company prior to Maturity) will be made by check mailed to the address
of the person entitled thereto as shown on the Securities Register.
Payments of principal, premium, if any, and interest upon Maturity or
redemption will be made in immediately available funds against
presentation and surrender of the Note at the office of the paying
agent (the "Paying Agent", initially, The First National Bank of
Chicago) in New York, New York, or, at the option of the Holder, at
the principal office of the Paying Agent in Chicago, Illinois.
Notwithstanding the foregoing, payments in respect of the Notes
represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds
to the account of The Depository Trust Company as specified by The
Depository Trust Company.
The Indenture referred to on the reverse hereof contains
provisions setting forth certain conditions to the institution of
proceedings by Holders of the Notes with respect to this Note, said
Indenture, the appointment of a receiver or trustee and the
enforcement of remedies under this Note or said Indenture. However,
<PAGE>
notwithstanding any reference herein to such Indenture or any
provision of such Indenture, the right of the Holder of this Note to
receive payment of the principal of and interest on such Note, on or
after the respective dates expressed in this Note, or to institute
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of such Holder.
The provisions of this Note are continued on the reverse
side hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereof shall have been
duly signed by the Trustee under the Indenture referred to on the
reverse hereof.
IN WITNESS WHEREOF, ITT Corporation has caused this
instrument to be signed manually or by facsimile by its duly
authorized officers and a facsimile of its corporate seal to be
affected hereunto or imprinted hereon.
Dated: November 15, 1996
ITT CORPORATION
CERTIFICATE OF AUTHENTICATION By
--------------------------
Vice President
This is one of the Securities of the
series designated therein referred to in the
within mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
By
By
--------------------------
----------------------- Assistant Secretary
Authorized Officer
[SEAL]
<PAGE>
[REVERSE OF NOTE]
ITT CORPORATION
6 3/4% NOTE DUE NOVEMBER 15, 2003
1. Indenture.
This Note is one of a duly authorized issue of debentures,
notes or other evidence of indebtedness (hereinafter called the
"Securities") of the Company of the series hereinafter specified,
which series is limited in aggregate principal amount of $250,000,000,
all such Securities issued and to be issued under an indenture
(herein, the "Indenture") dated as of November 15, 1995, between the
Company and The First National Bank of Chicago, as Trustee, as amended
and restated as of December 19, 1995, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
specification of the rights and limitation of rights thereunder of the
Holders of the Securities and of the rights, obligations, duties and
immunities of the Trustee and the Company. As provided in the
Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts,
may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any,
may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided or permitted. This Note is
one of a series of the Securities designated pursuant thereto as 6
3/4% Notes Due November 15, 2003 (the "Notes").
2. Paying Agent and Registrar.
Initially, The First National Bank of Chicago, a national
banking association, at both its principal office in the City of
Chicago, Illinois, and its corporate trust facility in the Borough of
Manhattan, The City of New York, will act as Paying Agent and
Securities Registrar. The Company may appoint and change any Paying
Agent, Securities Registrar or co-registrar without notice. The
Company may act as Paying Agent, Securities Registrar or co-registrar.
3. Optional Redemption.
The Notes will not be redeemable prior to Maturity except as
described in the following paragraph.
<PAGE>
4. Redemption Pursuant to Gaming Law.
If a Holder or beneficial owner of a Note is required by any
Gaming Authority to be licensed or found qualified or suitable to hold
or own the Note and such Holder is not licensed or found qualified or
suitable within any time specified by such Gaming Authority or such
Gaming Authority denies a license to or finds unqualified or
unsuitable such Holder, the Company will have the right at its option
to require such Holder to dispose of such Holder's Note within the
time period prescribed by the Company or such other time period as may
be prescribed by any Gaming Authority, which time period shall be
specified in a written notice from the Company. If the Holder having
been given the opportunity by the Company to dispose of such Note
fails to do so within the prescribed time period, the Company will
have the right to call for redemption such Holder's Note by notice of
redemption to such person. On any such redemption, the redemption
price shall be the lesser of (a) the lowest closing sale price of the
Note on any trading day during the 120 day period commencing on the
date upon which the Company shall have received notice from a Gaming
Authority of such Holder's disqualification or (b) the price at which
such Holder acquired the Notes, unless a different redemption price is
required by such Gaming Authority, in which event such required price
shall be the redemption price.
5. Defaults and Remedies.
In case an Event of Default with respect to the Notes, as
defined in the Indenture, shall have occurred and be continuing, the
principal of all Notes may be declared, and upon such declaration
shall become, due and payable, in the manner and with the effect
provided in the Indenture. The Indenture provides that in certain
events such declaration and its consequences may be waived by the
Holders of a majority in aggregate principal amount of the Notes then
outstanding and that, prior to any such declaration, such Holders may
waive any past default under the Indenture and its consequences except
a default in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the Holder of
each Security affected. Any such waiver and any consent by the Holder
of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders
and owners of this Note and any Notes which may be issued in exchange
or substitution herefor, irrespective of whether or not any notation
thereof is made upon this Note or such other Notes.
<PAGE>
6. Supplemental Indentures; Amendment.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a
majority in aggregate amount of the Securities at the time Outstanding
(as defined in the Indenture), of all series of Securities to be
affected thereby, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of each such series;
provided, however, that no such supplemental indenture shall, among
other things (i) extend the Stated Maturity of any Security of such
series, reduce the principal amount thereof, reduce any amount payable
on redemption thereof or reduce the rate or extend the time of payment
of interest thereon, without the consent of the Holder of each
Security of such series so affected, or (ii) reduce the aforesaid
percentage of Securities of such series affected thereby, the consent
of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so
affected.
7. Obligation Unconditional.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of and interest on this Note at the place, at the respective times, at
the rate and in the currency herein prescribed.
8. Denominations; Transfer; Exchange.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple of
$1,000. Any Note or Notes may be exchanged for a Note or Notes in
other authorized denominations, in an equal aggregate principal amount
in the manner, and subject to the limitations provided in the
Indenture, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York and in the
City of Chicago, Illinois.
The transfer of this Note is registrable at the office or
agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, and in the City of Chicago, Illinois,
by the registered Holder hereof in person or by his attorney duly
authorized in writing, but only in the manner and subject to the
limitations provided in the Indenture and upon surrender of this Note
at the office or agency of the Company maintained for that purpose in
said Borough of Manhattan and said City of Chicago. Upon any such
registration of transfer a new
<PAGE>
Note or Notes in authorized denominations, for a like aggregate
principal amount, shall be issued to the transferee in exchange
herefor.
If this Note is issued in the form of a Global Security, it
is exchangeable, in whole but not in part, for Notes registered in the
names of Persons other than the Depositary or its nominee or in the
name of a successor to the Depositary or a nominee of such successor
depositary only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Note or if at
any time such Depositary shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, and, in either case, a
successor depositary is not appointed by the company within 90 days of
the receipt by the Company of such notice or of the Company becoming
aware of such condition, or (ii) the Company in its discretion at any
time determines not to have all of the Notes represented by one or
more Global Security or Securities. If this Note is exchangeable
pursuant to the preceding sentence, it shall be exchangeable for Notes
of like tenor and terms in definitive form in aggregate principal
amount equal to the principal amount of the Global Security. Subject
to the foregoing, if this Note is issued in the form of a Global
Security, it is not exchangeable, except for a Note or Notes of the
same aggregate denominations to be registered in the name of such
Depositary or its nominee or in the name of a successor to the
Depositary or a nominee of such successor depositary.
9. Persons Deemed Owners.
Prior to due presentation of this Note for registration of
transfer, the Company, the Trustee, any paying agent, any Securities
Registrar and other agent to the Company or the Trustee may deem and
treat the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereof made by any other than
the Company, any Securities Registrar or the Trustee), for the purpose
of receiving payment of principal hereof and (subject to the
provisions on the face hereof) interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
nor any Securities Registrar nor any other agent of the Company or the
Trustee shall be affected by any notice to the contrary.
10. No Recourse Against Others.
No recourse shall be had for the payment of the principal of
or interest on this Note, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, or against
any past, present or future stockholder, director or officer, as
<PAGE>
such, of the Company or of any successor either directly or through
the Company or any successor, under any constitution, statute or rule
of law, or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
11. Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on
the Notes to redemption or maturity, as the case may be.
12. Abbreviations.
The following abbreviations, when used in the inscription on
the face of this Note, shall be construed as if they were written out
in full according to applicable laws or regulations: TEN COM (=tenants
in common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
Additional abbreviations, though not in the above list, may also be
used.
13. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee
to use CUSIP numbers in notices of redemption as a convenience to
Noteholders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice
of redemption and reliance may be placed only on the other
identification numbers placed thereon.
14. Defined Terms.
Certain terms used in this Note which are defined in the
Indenture have the meanings set forth therein.
<PAGE>
15. Governing Law.
THIS NOTE FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS MAY OTHERWISE BE
REQUIRED BY MANDATORY PROVISIONS OF LAW.
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Company. The agent may substitute another to act
for him.
Date: ________________ Your Signature:
----------------------------
(Sign exactly as your
name appears on the face
of this Note)
Signature Guarantee:_______________________________________
(Signature must be guaranteed by an
eligible institution within the
meaning of Rule 17A(d)-15 under the
Securities Exchange of 1934, as amended)
<PAGE>
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal
Amount of
Amount of Amount of this Global
decrease in increase in Security Signature
Principal Principal following of
Amount of Amount of such authorized
Date of this Global this Global decrease or officer of
Exchange Security Security increase Trustee
Exhibit 4.2
======================================================================
AMENDED AND RESTATED INDENTURE
Between
ITT CORPORATION (formerly known as ITT Destinations, Inc.), Issuer
and
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
Dated as of November 15, 1995,
as Amended and Restated as of December 19, 1995
Debt Securities
======================================================================
<PAGE>
ITT CORPORATION
CROSS REFERENCE SHEET 1/
Showing the location in the ITT Corporation Indenture of the
provisions required pursuant to Section 310 to 318(a) inclusive of the
Trust Indenture Act of 1939 (including cross-references to provisions
of Sections 310 to 318(a) which, pursuant to Section 318(c) of the
Trust Indenture Act of 1939, as amended by the Trust Indenture Reform
Act of 1990, are part of and govern such Indenture Provisions whether
or not physically contained therein):
Section of the Trust
Indenture Act of 1939 Section of Indenture
--------------------- --------------------
310(a)(1),(2) and (5)........................... 7.9
310(a)(3) and (4)............................... Inapplicable
310(b).......................................... 7.8 and 7.10(a), (b) and (d)
310(c).......................................... Inapplicable
311(a).......................................... 7.13(a) and (c)(1) and (2)
311(b).......................................... 7.13(b)
311(c).......................................... Inapplicable
312(a).......................................... 5.1 and 5.2(a)
312(b).......................................... 5.2(b)
312(c).......................................... 5.2(c)
313(a).......................................... 5.4(a)
313(b)(1)....................................... Inapplicable
313(b)(2)....................................... 5.4(b)
313(c).......................................... 5.4(c)
313(d).......................................... 5.4(d)
314(a)(1), (2) and (3).......................... 5.3
314(a)(4)....................................... 4.7, 11.4
314(b).......................................... Inapplicable
314(c)(1) and (2)............................... 13.6
314(c)(3)....................................... Inapplicable
314(d).......................................... Inapplicable
314(e).......................................... 13.6
314(f).......................................... Inapplicable
315(a), (c) and (d)............................. 7.1
315(b).......................................... 6.11
315(e).......................................... 6.12
- --------
1/ This Cross-Reference Sheet is not part of the Indenture.
<PAGE>
Section of the Trust
Indenture Act of 1939 Section of Indenture
--------------------- --------------------
316(a)(1)(A)................................... 6.9
316(a)(1)(B)................................... 6.10
316(a)(2)...................................... Inapplicable
316(a) (last sentence)......................... 8.4
316(b)......................................... 6.7
317(a)......................................... 6.2
317(b)......................................... 4.4
318(a)......................................... 13.11
<PAGE>
TABLE OF CONTENTS
Page No.
--------
RECITALS OF THE ISSUER............................................ 1
ARTICLE ONE Definitions.......................................... 2
SECTION 1.1. Certain Terms Defined...................... 2
SECTION 1.2. Other Defined Terms........................ 11
ARTICLE TWO Security Forms....................................... 11
SECTION 2.1. Forms Generally............................ 11
SECTION 2.2. Form of Trustee's Certificate of
Authentication........................... 11
SECTION 2.3. Form of Trustee's Certificate of
Authentication by an
Authenticating Agent..................... 12
SECTION 2.4. Securities Issuable in the Form of
a Global Security........................ 12
ARTICLE THREE The Securities..................................... 13
SECTION 3.1. Amount Unlimited; Issuable in Series....... 13
SECTION 3.2. Form and Denominations..................... 16
SECTION 3.3. Authentication, Dating and Delivery
of Securities............................ 16
SECTION 3.4. Execution of Securities and
Coupons.................................. 17
SECTION 3.5. Certificate of Authentication.............. 18
SECTION 3.6. Registration; Registration of
Transfer and Exchange.................... 18
SECTION 3.7. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities or Coupons............. 20
SECTION 3.8. Payment of Interest; Interest Rights
Preserved................................ 21
SECTION 3.9. Cancellation of Securities;
Destruction Thereof...................... 22
SECTION 3.10. Temporary Securities....................... 23
SECTION 3.11. Computation of Interest.................... 23
SECTION 3.12. Currency and Manner of Payments in
Respect of Securities.................... 23
SECTION 3.13. Compliance with Certain Laws and
Regulations.............................. 27
ARTICLE FOUR Covenants of the Issuer............................. 28
SECTION 4.1. Payment of Securities...................... 28
SECTION 4.2. Offices or Agency.......................... 28
SECTION 4.3. Appointment To Fill a Vacancy in
Office of Trustee........................ 29
SECTION 4.4. Paying Agents.............................. 29
SECTION 4.5. Limitation on Sale and Lease-Backs......... 30
SECTION 4.6. Limitations on Liens....................... 31
SECTION 4.7. Certificates to Trustee.................... 33
<PAGE>
ARTICLE FIVE Securityholders Lists and Reports by the Issuer
and the Trustee................................... 34
SECTION 5.1. Issuer To Furnish Trustee Information
as to Names and Addresses of
Securityholders.......................... 34
SECTION 5.2. Preservation and Disclosure of
Securityholders Lists.................... 34
SECTION 5.3. Reports by the Issuer...................... 36
SECTION 5.4. Reports by the Trustee..................... 36
ARTICLE SIX Remedies of the Trustee and Securityholders on
Event of Default................................... 38
SECTION 6.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default........... 38
SECTION 6.2. Collection of Indebtedness by
Trustee; Trustee May Prove Debt.......... 41
SECTION 6.3. Application of Proceeds.................... 43
SECTION 6.4. Suits for Enforcement...................... 44
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings.............................. 44
SECTION 6.6. Limitations on Suits by Securityholders.... 44
SECTION 6.7. Unconditional Right of Securityholders
To Institute Certain Suits............... 45
SECTION 6.8. Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default........ 45
SECTION 6.9. Control by the Holders of
Securities............................... 46
SECTION 6.10. Waiver of Past Defaults.................... 46
SECTION 6.11. Trustee To Give Notice of Default, but
May Withhold in Certain Circumstances.... 47
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs................ 47
SECTION 6.13. Judgment Currency.......................... 48
ARTICLE SEVEN Concerning the Trustee............................. 48
SECTION 7.1. Duties and Responsibilities of
the Trustee; During Default;
Prior to Default......................... 48
SECTION 7.2. Certain Rights of the
Trustee.................................. 50
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof.......... 51
SECTION 7.4. Trustee and Agents May Hold
Securities; Collections, etc............. 51
SECTION 7.5. Moneys Held by Trustee..................... 51
SECTION 7.6. Compensation and Indemnification of
Trustee and Its Prior Claim.............. 51
SECTION 7.7. Right of Trustee To Rely on Officers'
Certificate, etc......................... 52
SECTION 7.8. Qualification of Trustee;
Conflicting Interests.................... 52
SECTION 7.9. Persons Eligible for
Appointment as Trustee................... 52
SECTION 7.10. Resignation and Removal;
Appointment of Successor Trustee......... 53
<PAGE>
SECTION 7.11. Acceptance of Appointment by
Successor Trustee........................ 54
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee........ 55
SECTION 7.13. Preferential Collection of
Claims Against the Issuer................ 55
SECTION 7.14. Authenticating Agent....................... 59
ARTICLE EIGHT Concerning the Holders of Securities............... 60
SECTION 8.1. Action by Holders.......................... 60
SECTION 8.2. Proof of Execution of Instruments
by Holders of Securities................. 61
SECTION 8.3. Holders To Be Treated as Owners............ 61
SECTION 8.4. Securities Owned by Issuer Deemed
Not Outstanding.......................... 62
SECTION 8.5. Right of Revocation of Action Taken........ 62
ARTICLE NINE Holders' Meetings................................... 63
SECTION 9.1. Purposes of Meetings....................... 63
SECTION 9.2. Call of Meetings by Trustee................ 63
SECTION 9.3. Call of Meetings by Issuer or Holders...... 63
SECTION 9.4. Qualifications for Voting.................. 64
SECTION 9.5. Regulations................................ 64
SECTION 9.6. Voting..................................... 64
SECTION 9.7. No Delay of Rights by Meeting.............. 65
ARTICLE TEN Supplemental Indentures.............................. 65
SECTION 10.1. Supplemental Indentures Without
Consent of Securityholders............... 65
SECTION 10.2. Supplemental Indentures with
Consent of Securityholders............... 67
SECTION 10.3. Notice of Supplemental Indenture........... 68
SECTION 10.4. Effect of Supplemental Indenture........... 68
SECTION 10.5. Documents To Be Given to Trustee........... 69
SECTION 10.6. Notation on Securities and Coupons
in Respect of Supplemental Indentures.... 69
SECTION 10.7. Issuance of Securities by
Successor Corporation.................... 69
ARTICLE ELEVEN Consolidation, Merger, Sale or Assumption......... 70
SECTION 11.1. Issuer May Consolidate, Merge
or Sell on Certain Terms................. 70
SECTION 11.2. Opinion of Counsel To
Be Given to Trustee...................... 71
ARTICLE TWELVE Satisfaction and Discharge of Indenture;
Unclaimed Moneys................................ 71
SECTION 12.1. Satisfaction and Discharge of
Securities of Any Series................. 71
SECTION 12.2. Satisfaction and Discharge of
Indenture................................ 73
SECTION 12.3. Application of Trust Money................. 73
SECTION 12.4. Repayment of Moneys
Held by Paying Agent..................... 73
<PAGE>
SECTION 12.5. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years..... 74
ARTICLE THIRTEEN Miscellaneous Provisions........................ 74
SECTION 13.1. Incorporators, Stockholders, Officers
and Directors of Issuer
Exempt from Individual Liability......... 74
SECTION 13.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders... 74
SECTION 13.3. Successors and Assigns of Issuer
Bound by Indenture....................... 74
SECTION 13.4. Notices to Holders; Waiver................. 75
SECTION 13.5. Addresses for Notices...................... 75
SECTION 13.6. Officers'Certificates and Opinions
of Counsel; Statements To
Be Contained Therein..................... 76
SECTION 13.7. Cross References........................... 77
SECTION 13.8. Legal Holidays............................. 77
SECTION 13.9. Moneys of Different Currencies
To Be Segregated......................... 77
SECTION 13.10. Payment To Be in Proper Currency........... 77
SECTION 13.11. Conflict of Any Provision of
Indenture with Trust Indenture Act....... 78
SECTION 13.12. New York Law To Govern..................... 78
SECTION 13.13. Counterparts............................... 78
SECTION 13.14. Effect of Headings......................... 78
SECTION 13.15. Separability Clause........................ 78
ARTICLE FOURTEEN Redemption of Securities........................ 78
SECTION 14.1. Applicability of Article................... 78
SECTION 14.2. Notice of Redemption;
Selection of Securities.................. 78
SECTION 14.3. Payment of Securities Called for
Redemption............................... 80
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption............................... 81
SECTION 14.5. Redemption Pursuant
to Gaming Laws........................... 81
ARTICLE FIFTEEN Sinking Funds.................................... 82
SECTION 15.1. Applicability of Article................... 82
SECTION 15.2. Satisfaction of Mandatory Sinking
Fund Payments with Securities............ 82
SECTION 15.3. Redemption of Securities for
Sinking Fund............................. 82
<PAGE>
AMENDED AND RESTATED INDENTURE, dated as of
November 15, 1995, as amended and restated as of
December 19, 1995, between ITT CORPORATION, a Nevada
corporation (formerly known as ITT Destinations, Inc.)
(the "Issuer"), and THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association, as Trustee (the
"Trustee").
RECITALS OF THE ISSUER
The Issuer is authorized to borrow money for its corporate
purposes and to issue debentures, notes or other evidences of
indebtedness therefor; and for its corporate purposes, the Issuer has
determined to make and issue its debentures, notes or other evidences
of indebtedness to be issued in one or more series (the "Securities"),
as hereinafter provided, up to such principal amount or amounts as may
from time to time be authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors.
The Issuer, the Trustee and the Delaware corporation
formerly known as ITT Corporation, as guarantor of the obligations of
the Issuer (the "Guarantor"), are parties to an Indenture dated as of
November 15, 1995 (the "Original Indenture") relating to the issuance
from time to time by the Issuer of its Securities on terms to be
specified at the time of issuance.
The Original Indenture provided in Section 14.2 that upon
the Completion of the Distribution, as defined in Section 1.1 thereof,
and the delivery by the Issuer to the Trustee of an Officers'
Certificate and an Opinion of Counsel as to the Completion of the
Distribution, the Guarantor would become released and relieved from
all of its obligations under the Original Indenture and all provisions
of the Original Indenture referring or relating to the Guarantor, its
guarantee and its obligations under the Original Indenture would be of
no further force or effect, and, upon request of the Guarantor, the
Trustee would execute and deliver to the Guarantor a satisfaction and
discharge with respect to its obligations under the Original
Indenture, together with any other documents reasonably required to
evidence the release of the Guarantor from said obligations
(collectively, the "Release Documents").
The Completion of the Distribution has occurred, the Issuer
has delivered to the Trustee the required Officers' Certificate and
Opinion of Counsel and the Trustee has executed and delivered to the
Guarantor the Release Documents.
<PAGE>
Section 11.1(k) of the Original Indenture provided that
following the release of the Guarantor pursuant to Section 14.2, the
Issuer and the Trustee could change or eliminate, by restatement or
otherwise, the provisions of the Original Indenture referencing or
relating to the Guarantor, the Guarantee (as defined therein) and the
Obligations (as defined therein) so as to reflect the release of the
Guarantor.
This Amended and Restated Indenture amends, restates and
supersedes in its entirety the Original Indenture, as contemplated by
such Section 11.1(k).
All things necessary to make this Indenture, as amended and
restated, a valid agreement of the Issuer, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the
Securities by the holders thereof and of the sum of One Dollar to the
Issuer duly paid by the Trustee at or before the ensealing and
delivery of these presents, and for other valuable considerations, the
receipt whereof is hereby acknowledged, and in order to declare the
terms and conditions upon which the Securities are to be issued, IT IS
HEREBY COVENANTED, DECLARED AND AGREED, by and among the parties
hereto, that all the Securities are to be executed, authenticated and
delivered subject to the further covenants and conditions hereinafter
set forth; and the Issuer, for itself and its successors, does hereby
covenant and agree to and with the Trustee and its successors in said
trust, for the benefit of those who shall hold the Securities, or any
of them, as follows:
ARTICLE ONE
Definitions
SECTION 1.1. Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and of
any indenture supplemental hereto shall have the respective meanings
specified in this Section. All other terms used in this Indenture that
are defined in the Trust Indenture Act or the definitions of which in
the Securities Act of 1933 are referred to in the Trust Indenture Act
or by Commission rule under the Trust Indenture Act (except as herein
otherwise expressly provided or unless the context otherwise clearly
requires) shall have the meanings assigned to such terms in said Trust
Indenture Act, such rule thereunder or in said Securities Act as in
force at the date of this Indenture. All accounting terms used and not
expressly defined herein shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and
the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and other
words of
<PAGE>
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in
this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
"Authenticating Agent" means with respect to any series of
Securities, an authenticating agent appointed by the Trustee with
respect to that series of Securities pursuant to Section 7.14.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least
once a day, and customarily published for at least five days in each
calendar week, and of general circulation in such city or cities as
may be provided elsewhere in this Indenture or specified as
contemplated by Section 3.1 with respect to the Securities of any
series the terms of which permit Unregistered Securities or Coupon
Securities. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on a Business Day, in such city.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer 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" means with respect to any Security, a day
which, in the city (or in any of the cities, if more than one) in
which amounts are payable as specified in the form of such Security,
is neither a legal holiday nor a day on which banking institutions,
including the Trustee, are authorized or required by law or regulation
or executive order to close.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of corporate
stock.
"Capitalized Lease-Back Obligation" means with respect to a
Principal Property, at any date as of which the same is to be
determined, the total net rental obligations of the Issuer or a
Restricted Subsidiary under a lease of such Principal Property entered
into as part of an arrangement to which the provisions of Section 4.5
are applicable (or would have been applicable had such Restricted
Subsidiary been a Restricted Subsidiary at the time it entered into
such lease), discounted to the date of computation at the rate of 9%
per annum. The amount of the net rental obligation for any calendar
year under any lease shall be the sum of the rental and other payments
required to be paid in such calendar year by the lessee thereunder,
not including, however, any amounts required to be paid by such
<PAGE>
lessee (whether or not therein designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act
of 1939, then the body performing such duties at such time.
"Component Currency": See Section 3.12(i).
"Consolidated Net Tangible Assets" means the total of all
assets appearing on a consolidated balance sheet of the Issuer and its
Restricted Subsidiaries prepared in accordance with generally accepted
accounting principles (and as of a date not more than 90 days prior to
the date as of which Consolidated Net Tangible Assets are to be
determined), less the sum of the following items as shown on said
consolidated balance sheet:
(i) the book amount of all segregated intangible assets,
including, without limitation, such items as goodwill,
trademarks, trademark rights, trade names, trade name rights,
copyrights, patents, patent rights and licenses, and unamortized
debt discount and expense less unamortized debt premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the stock and surplus of
Restricted Subsidiaries;
(v) the investment of the Issuer and its Restricted
Subsidiaries in any Subsidiary of the Issuer which is not a
Restricted Subsidiary;
(vi) deferred income and deferred liabilities; and
(vii) other items deductible under generally accepted
accounting principles.
"Conversion Date": See Section 3.12(e).
"Conversion Rate": See Section 6.13.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business
shall be administered, except that, with respect to presentation of
Registered Securities for payment or for registration of transfer and
exchange, presentation of Unregistered Securities for registration and
the location of the Securities
<PAGE>
Register, such term shall mean such office or the agency of the
Trustee designated for such purpose.
"Coupon" means any interest coupon appertaining to any
Security.
"Coupon Security" means any Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Depositary" means with respect to any series of Securities
for which the Issuer shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York,
New York, another clearing agency or any successor registered under
the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, which, in each case, shall be designated by the
Issuer pursuant to either Section 2.4 or 3.1.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of
public and private debts.
"Dollar Determination Agent" means the New York clearing
house bank, if any, from time to time selected by the Issuer for
purposes of Section 3.12.
"Dollar Equivalent of the Currency Unit": See Section
3.12(h).
"Dollar Equivalent of the Foreign Currency": See Section
3.12(g).
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European Communities.
"European Communities" means the European Economic
Community, the European Coal and Steel Community, and the European
Atomic Energy Community.
"Event of Default" means any event or condition specified as
such in Section 6.1 which shall have continued for the period of time,
if any, therein designated.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Official Currency Unit
Exchange Rate and (ii) the Dollar or Foreign Currency amounts of
principal, premium, if any, and interest, if any, respectively (on an
aggregate basis and on the basis of a Security having a principal
amount of 1,000 in the relevant currency unit), payable on the basis
of such Official Currency Unit Exchange Rate, sent (in the case of a
telex) or signed (in the case of a certificate) by the Treasurer or
any Associate or Assistant Treasurer of the Issuer and delivered to
the Trustee.
"Fair Value" when used with respect to property, means the
fair value as determined in good faith by the Board of Directors.
<PAGE>
"Foreign Currency" means a currency issued by the government
of any country other than the United States.
"Fully Registered Security" means any Security registered as
to principal and interest, if any.
"Gaming Authority" means the Nevada Gaming Commission, the
Nevada Gaming Control Board, the New Jersey Casino Control Commission,
the New Jersey Division of Gaming Enforcement or any similar
commission or agency of any state or other legal jurisdiction having
jurisdiction over the gaming activities or any proposed or future
gaming activities of the Issuer or a Subsidiary of the Issuer or any
successor thereto.
"Gaming Laws" means all laws pursuant to which any Gaming
Authority possesses licensing or permit authority over gaming
activities conducted by the Issuer or any of its Subsidiaries within
its jurisdiction.
"Global Security" means, with respect to any series of
Securities, a Security executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and
pursuant to an Issuer Order, which (i) shall be registered in the name
of the Depositary, or its nominee and (ii) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series or any portion
thereof, in either case having the same terms, including, without
limitation, the same issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Government Obligations" means, with respect to the
Securities of any series, securities which are (i) direct obligations
of the government which issued the currency in which the Securities of
such series are denominated or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the
government which issued the currency in which the Securities of such
series are denominated the payment of which is unconditionally
guaranteed by such government, and which, in either case, are full
faith and credit obligations of such government and are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such Government Obligation or a specific payment of
interest on or principal of any such Government Obligation held by
such custodian for the account of the holder of such 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 Government Obligation or the specific
payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, with respect to a Registered Security, any
person in whose name at the time a particular Registered Security is
registered in the Securities Register; with respect
<PAGE>
to an Unregistered Security, the bearer of such Unregistered Security;
and, with respect to a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so
amended or supplemented, and shall include the forms and terms of
particular series of Securities established as contemplated hereunder,
regardless of the currency or currency unit in which such Securities
are denominated.
"Interest" means, when used with respect to any non-interest
bearing Security, interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities of any series.
"Issuer" means ITT Corporation, a Nevada corporation, and,
subject to Article Eleven, its successors and assigns.
"Issuer Order" and "Issuer Request" mean a written order and
a written request, respectively, signed in the name of the Issuer by
the chairman or any vice chairman or the president or any vice
president and by the treasurer or any associate or assistant treasurer
or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee.
"Market Exchange Rate": See Section 3.12(i).
"Maturity", when used with respect to any Security, shall
mean the date on which the principal of such Security 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 or any vice chairman or the president or any vice president
and by the treasurer or any associate or assistant treasurer or the
secretary or any assistant secretary of the Issuer and delivered to
the Trustee. Each such certificate shall include the statements
provided for in Section 13.6 if and to the extent required thereby.
"Official Currency Unit Exchange Rate" means, with respect
to any payment to be made hereunder, the exchange rate between the
relevant currency unit and the Dollar calculated by the agency
specified pursuant to Section 3.1 for the Securities of the relevant
series (in the case of the ECU, calculated by the Commission of the
European Communities, and currently based on the rates in effect at
2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of the ECU), on the second Business Day (in the city in
which such agency has its principal office) immediately preceding the
applicable payment date.
<PAGE>
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer or
who may be other counsel satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 13.6 if
and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means (i) any Security
that 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 6.1 and (ii) any other Security deemed an
Original Issue Discount Security for United States Federal income tax
purposes.
"Outstanding" (except as otherwise provided in Section 7.8),
when used with reference to Securities, shall, subject to the
provisions of Section 8.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own Paying Agent); provided that, if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 3.7 (except with respect to any
such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series have
given any request, demand, authorization, direction, notice, consent
or waiver hereunder, 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 of acceleration of the maturity thereof pursuant to
Section 6.1.
<PAGE>
"Overdue Rate" with respect to any series of Securities
means the rate designated as such in or pursuant to the resolution of
the Board of Directors of the Issuer or the supplemental indenture, as
the case maybe, relating to such series as contemplated by Section
3.1.
"Paying Agent" means any person authorized by the Issuer to
pay the principal of, or premium, if any, or interest, if any, on, any
Securities on behalf of the Issuer.
"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,
premium, if any, and interest, if any, on, the Securities of such
series are payable as specified pursuant to Section 3.1.
"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 3.7 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Security.
"Principal Property" means any single property owned by the
Issuer or any Restricted Subsidiary having a gross book value in
excess of 2% of Consolidated Net Tangible Assets, except any such
property or portion thereof which the Board of Directors by resolution
declares is not of material importance to the total business conducted
by the Issuer and its Restricted Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to
be redeemed, means that 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, in the Dollars or the Foreign
Currency or currency unit in which such Security is denominated or
which is otherwise provided for pursuant to this Indenture, at which
it is to be redeemed pursuant to this Indenture.
"Registered Holder" means, with respect to a Registered
Security, the Person in whose name such Security is registered in the
Securities Register.
"Registered Security" means any Security registered as to
principal.
"Required Currency": See Section 13.10.
<PAGE>
"Responsible Officer" when used with respect to the Trustee
means any officer in the Corporate Trust Office of the Trustee and any
other officer of the Trustee to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Security" or "Securities" (except as otherwise provided in
Section 7.8) has the meaning stated in the recitals of this Indenture
and more particularly shall mean any Registered or Unregistered
Securities authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar": See
Section 3.6.
"Specified Amount": See Section 3.12(i).
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such
Security or the Coupon, if any, representing such installment of
interest, as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"Subsidiary" means any corporation more than 50% of the
voting stock of which at the time is owned or controlled, directly or
indirectly, by the Issuer or the accounts of which are in fact
consolidated with the accounts of the Issuer.
"Trustee" means the person identified as "Trustee" in the
first paragraph of this Indenture and, subject to the provisions of
Article Seven shall also include any successor trustee. If there shall
be more than one Trustee at any one time, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to
those series of Securities with respect to which it is serving as
Trustee.
"Trust Indenture Act" (except as otherwise provided in
Sections 10.1 and 10.2) means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, and as in force at
the date as of which this Indenture was originally executed.
"Unregistered Security" means any Security that is not
registered as to principal.
"Unrestricted Subsidiary" means any Subsidiary which has
been designated by Board Resolution as an Unrestricted Subsidiary,
other than any such Subsidiary as to which such a designation has been
rescinded by Board Resolution and not thereafter, or after some
subsequent such rescission, restored by Board Resolution, or any
Subsidiary 50% or less of the voting stock of which is owned directly
by the Issuer and/or one or more of its respective Restricted
Subsidiaries. A Subsidiary may not be designated as (or otherwise
permitted to become) an Unrestricted Subsidiary unless, immediately
after such Subsidiary becomes an Unrestricted Subsidiary, such
Subsidiary would not own any capital stock of, or hold any
<PAGE>
indebtedness of, any Restricted Subsidiary. A designation as an
Unrestricted Subsidiary may not be rescinded (or an Unrestricted
Subsidiary otherwise permitted to become a Restricted Subsidiary)
unless such Subsidiary (i) is not a party to any lease which it would
have been prohibited by Section 4.5 from entering into had it been a
Restricted Subsidiary at the time it entered into such lease, unless
(x) such Subsidiary had not been a Restricted Subsidiary prior to its
entering into such lease, or (y) the property subject to such lease
shall be owned by the Issuer and/or one or more of its respective
Restricted Subsidiaries, or (z) such Subsidiary would not be
prohibited by Section 4.5 from entering into such lease immediately
after it becomes a Restricted Subsidiary, and (ii) does not have
outstanding upon and of its property any mortgage, pledge or other
lien which it would be prohibited by Section 4.6 from creating,
suffering to be created, or assuming, immediately after it becomes a
Restricted Subsidiary. Upon any designation of a Subsidiary as an
Unrestricted Subsidiary, or any rescission of any such designation,
the Issuer shall, within 30 days of the date of the adoption of the
Board Resolution effecting such action, deliver to the Trustee a copy
of such Board Resolution together with an Officers' Certificate to the
effect that such action is in compliance with the foregoing provisions
of this paragraph.
"Valuation Date": See Section 3.12(e).
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the
title of "vice president".
SECTION 1.2. Other Defined Terms. Certain other terms are
defined in Article Seven.
ARTICLE TWO
Security Forms
SECTION 2.1. Forms Generally. The Securities of each series,
and the Coupons, if any, to be attached thereto, shall be in
substantially the form as shall be established pursuant to Section 3.1
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 or designation and such legends or endorsements placed
thereon as the Issuer may deem appropriate and as are not inconsistent
with the provisions of this Indenture or as may be required to comply
with any law or with any rules or regulations made pursuant thereto or
with any rules or regulations of any securities exchange on which any
of the Securities may be listed, or as may, consistently herewith, be
determined by the officers executing such Securities, and Coupons, if
any, as evidenced by their execution of the Securities, and Coupons,
if any.
The definitive Securities, and Coupons, if any, of each
series shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner,
<PAGE>
all as determined by the officers executing of such Securities, and
Coupons, if any, as evidenced by their execution of such Securities,
and Coupons, if any, subject, with respect to the Securities of any
series, to the rules of any securities exchange on which the
Securities of such series are listed.
SECTION 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's Certificate of Authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
by
----------------------
Authorized Officer
SECTION 2.3. Form of Trustee's Certificate of Authentication
by an Authenticating Agent. If at any time there shall be an
Authenticating Agent appointed with respect to any series of
Securities, then the Trustee's Certificate of Authentication by such
Authenticating Agent on all Securities of such series shall be in
substantially the following form:
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
by [NAME OF AUTHENTICATING AGENT],
Authenticating Agent
by
----------------------
Authorized Officer
SECTION 2.4. Securities Issuable in the Form of a Global
Security. (a) If the Issuer shall establish pursuant to Section 3.1
that the Securities of a particular series are to be issued in whole
or in part in one or more Global Securities, then the Issuer shall
execute and the Trustee shall, in accordance with Section 3.3 and the
Issuer Order delivered to the Trustee thereunder, authenticate and
deliver a Global Security or Securities which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal
amount of, the Outstanding Securities of such series to be represented
by such Global Security or Securities, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following
<PAGE>
effect: "Except as otherwise provided in Section 2.4 of the Indenture,
this Security may be transferred, in whole but not in part, only to a
nominee of the Depositary, or by a nominee of the Depositary to the
Depositary, or to a successor Depositary or to a nominee of such
successor Depositary."
(b) Notwithstanding any other provision of this Section 2.4
or of Section 3.6, the Global Security of a series may be transferred,
in whole but not in part and in the manner provided in Section 3.6,
only to a nominee of the Depositary, for such series or by a nominee
of the Depositary to the Depositary or to a successor Depositary for
such series selected or approved by the Issuer or to a nominee of such
successor Depositary.
(c) If at any time the Depositary for a series of Securities
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such
series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and a successor Depositary for such series is
not appointed by the Issuer within 90 days after the Issuer receives
such notice or becomes aware of such condition, as the case may be,
this Section 2.4 shall no longer be applicable to the Securities of
such series and the Issuer will execute, and the Trustee will, in
accordance with Section 3.3 and an Issuer Order delivered to the
Trustee, authenticate and deliver, Fully Registered Securities of such
series, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. In addition, the Issuer
may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of
this Section 2.4 shall no longer apply to the Securities of such
series. In such event the Issuer will execute and the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by
the Issuer, will authenticate and deliver Fully Registered Securities
of such series, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange
of the Global Security for Fully Registered Securities issued in
exchange for the Global Security pursuant to this Section 2.4(c), such
(i) Global Security shall be canceled by the Trustee, and (ii) Fully
Registered Securities shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
ARTICLE THREE
The Securities
SECTION 3.1. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
<PAGE>
The Securities may be issued in one or more series. There
shall be established in or pursuant to the authority granted in a
Board Resolution or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the form of the Securities of any series and the
Coupons, if any, appertaining thereto;
(2) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
Securities);
(3) any limit upon the aggregate principal amount of the
Securities of the series that 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
2.4, 3.6, 3.7, 3.10 or 14.3);
(4) the date or dates on which such Securities may be
issued;
(5) the date or dates, which may be serial, on which the
principal of, and premium, if any, on, the Securities of such
series shall be payable;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of such series shall bear
interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest
shall be payable and, in the case of Registered Securities, the
record dates, if other than as set forth in Section 3.8, for the
determination of Holders to whom interest is payable, and whether
any special terms and conditions relating to the payment of
additional amounts in respect of payments on the Securities of
such series shall in the event of certain changes in the United
States Federal income tax laws apply to Unregistered Securities
of such series or to Registered Securities of such series;
(7) the place or places where the principal of, and premium,
if any, and interest, if any, on Securities of the series shall
be payable (if other than as provided in Section 4.2);
(8) the provisions, if any, establishing the price or prices
at which, the period or periods within 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 Issuer, pursuant to any
sinking fund or otherwise, and whether any special terms and
conditions of redemption shall apply to Unregistered Securities
of such series or to Registered Securities of such series;
(9) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to the
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices, in the currency or currency unit
in which the Securities of such series are payable, at which and
the period or periods within which and the terms
<PAGE>
and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation;
(10) if other than denominations of 1,000 and any integral
multiple thereof, in Dollars or the Foreign Currency or currency
unit in which the Securities of such series are denominated, the
denominations in which Securities of such series shall be
issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series which shall
be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.1 or provable in bankruptcy
pursuant to Section 6.2;
(12) whether payment of the principal of, premium, if any,
and interest, if any, on the Securities of such series shall be
with or without deduction for taxes, assessments or governmental
charges, and with or without reimbursement of taxes, assessments
or governmental charges paid by Holders;
(13) any Events of Default with respect to the Securities of
such series, if not set forth herein;
(14) if other than the rate of interest stated in the title
of the Securities of such series, the applicable Overdue Rate;
(15) in case the Securities of such series do not bear
interest, the applicable dates for the purpose of clause (a) of
Section 5.1;
(16) whether the Securities of such series are to be issued
as Registered Securities (with or without Coupons) or
Unregistered Securities or both, and, if Unregistered Securities
or Coupon Securities are issued, whether Unregistered Securities
or Coupon Securities of such series may be exchanged for
Registered Securities or Fully Registered Securities of such
series and whether Registered Securities or Fully Registered
Securities of such series may be exchanged for Unregistered
Securities of such series and the circumstances under which and
the place or places where any such exchanges, if permitted, may
be made;
(17) the currency or currencies, or currency unit or
currency units, whether in Dollars or a Foreign Currency or
currency unit, in which the principal of, and premium, if any,
and interest, if any, on the Securities of such series or any
other amounts payable with respect thereto, including, without
limitation, Coupons, are to be denominated, payable, redeemable
or repurchaseable, as the case may be, and whether such
principal, premium, if any, and interest, if any, payable
otherwise than in Dollars may, at the option of the holders of
any Security of such series, also be payable in Dollars;
(18) if other than as set forth in Section 12.1, provisions
for the satisfaction and discharge of the indebtedness
represented by the Securities of such series;
<PAGE>
(19) whether the Securities of such series are issuable as a
Global Security and, in such case, the identity of the Depositary
for such series;
(20) if the amount of payment of principal of, premium, if
any, or interest on the Securities of such series may be
determined with reference to an index, formula or other method
based on a coin, currency, or currency unit other than that in
which the Securities are stated to be payable or otherwise, the
manner in which such amounts shall be determined;
(21) any other terms of such series (which terms shall not
be inconsistent with the provisions of this Indenture); and
(22) any trustees, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to the
Securities of such series, and, if the Securities of such series
are to be denominated and payable in any currency other than
Dollars, the initial Dollar Determination Agent.
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 the authority granted in such resolution of
the Board of Directors or in any such indenture supplemental hereto.
SECTION 3.2. Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the Securities
of any series, the Securities of such series shall be issuable as
Fully Registered Securities in denominations of $1,000 and any
integral multiple thereof, and shall be payable in Dollars.
SECTION 3.3. Authentication, Dating and Delivery of
Securities. At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities of any
series, with appropriate Coupons, if any, attached thereto, executed
by the Issuer to the Trustee for authentication. Except as otherwise
provided in this Article Three, the Trustee shall thereupon
authenticate and deliver, or cause to be authenticated and delivered,
said Securities to or upon Issuer Order, without any further action by
the Issuer. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, prior to the
initial authentication of such Securities, and (subject to Section
7.1) shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such
Resolution, in each case certified by the Secretary or an
Assistant Secretary of the Issuer;
(b) an executed supplemental indenture, if any, relating
thereto;
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(c) an Officers' Certificate which shall state that all
conditions precedent provided for in this Indenture relating to
the issuance of such Securities have been complied with, that no
Event of Default with respect to any series of Securities has
occurred and is continuing and that the issuance of such
Securities does not constitute and will not result in (i) any
Event of Default or any event or condition, which, upon the
giving of notice or the lapse of time or both, would become an
Event of Default or (ii) any default under the provisions of any
other instrument or agreement by which the Issuer is bound; and
(d) an Opinion of Counsel, which shall state:
(i) that the form and the terms of such Securities and
Coupons, if any, have been established by or pursuant to the
authority granted in a Board Resolution delivered to the Trustee
pursuant to subparagraph (a) above or by a supplemental indenture
delivered to the Trustee pursuant to subparagraph (b) above as
provided by Section 3.1 and in accordance with the provisions of
this Indenture;
(ii) that such Securities, when authenticated and delivered
by the Trustee and issued by the Issuer in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute (together with the Coupons, if any appertaining
thereto) valid and binding obligations of the Issuer enforceable
in accordance with their terms, subject to bankruptcy,
insolvency, organization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and
to general equity principles;
(iii) that the Issuer has the corporate power to issue such
Securities and Coupons, if any, and has duly taken all necessary
corporate action with respect to such issuance;
(iv) that the issuance of such Securities and Coupons, if
any, will not contravene the charter or by-laws of the Issuer or
result in any violation of any of the terms or provisions of any
law or regulation or of any indenture, mortgage or other
agreement known to such Counsel by which the Issuer or any of its
Subsidiaries is bound;
(v) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities and
Coupons, if any, and the related supplemental indenture, if any,
have been complied with and that authentication and delivery of
such Securities and Coupons, if any, and the execution and
delivery of the related supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture; and
(vi) such other matters as the Trustee may reasonably
request.
Notwithstanding the provisions of Section 3.1 and of this
Section 3.3, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate or supplemental indenture otherwise required pursuant to
Section 3.1 or the Issuer Order, Officers' Certificate and Opinion of
Counsel required pursuant to this Section 3.3 at or prior to the time
of authentication of each Security of such series if such
<PAGE>
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued;
provided, however, that any subsequent request by the Issuer to the
Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Issuer that as of the date of such
request the statements made in the Officers' Certificate delivered
pursuant to Section 3.3(c) shall be true and correct on the date
thereof as if made on and as of the date thereof.
The Trustee shall have the right to decline to authenticate
and deliver any Securities together with any Coupons appertaining
thereto under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or
trustees and/or responsible officers shall determine that such action
would expose the Trustee to personal liability to existing Holders.
Each Registered Security shall be dated the date of its
authentication.
SECTION 3.4. Execution of Securities and Coupons. The
Securities and Coupons, if any, appertaining thereto, shall be signed
in the name of and on behalf of the Issuer by both (a) its chairman or
any vice chairman or its president or any vice president and (b) by
its treasurer or any associate or assistant treasurer or its secretary
or any assistant secretary, under its corporate seal which may, but
need not, be attested. Such signatures may be the manual or facsimile
signatures of such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced thereon. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of any Security or
Coupon that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such officer
before the Security or Coupons, if any, so signed shall be
authenticated (in the case of the Securities) and delivered by or on
behalf of the Trustee or disposed of by the Issuer, such Securities
and Coupons, if any, appertaining thereto nevertheless may be
authenticated (in the case of the Securities) and delivered or
disposed of as though the person who signed such Securities or
Coupons, if any, had not ceased to be such officer of the Issuer; and
any Security or Coupon, if any, may be signed on behalf of the Issuer
by such persons as, at the actual date of the execution of such
Security or Coupon, if any, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
The Trustee shall not authenticate or deliver any Coupon
Security until any matured Coupons appertaining thereto have been
detached and canceled, except as otherwise provided or permitted by
this Indenture.
SECTION 3.5. Certificate of Authentication. No Security or
Coupon appertaining thereto shall be entitled to the benefits of this
Indenture or be valid or obligatory for any
<PAGE>
purpose, unless there appears on such Security a certificate of
authentication substantially in the form hereinbefore recited,
executed by or on behalf of the Trustee by manual signature. Such
certificate by or on behalf of the Trustee upon any Security executed
by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and
that the Holder is entitled to the benefits of this Indenture.
SECTION 3.6. Registration; Registration of Transfer and
Exchange. Subject to the conditions set forth below, Securities of any
series may be exchanged for a like aggregate principal amount of
Securities of the same series of other authorized denominations.
Securities to be exchanged shall be surrendered together, in the case
of Coupon Securities, with all unmatured Coupons and matured Coupons
in default appertaining thereto, at the offices or agencies to be
maintained by the Issuer for such purposes as provided in Section 4.2,
and the Issuer shall execute and register and the Trustee or any
Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities which the Holder making the
exchange shall be entitled to receive.
The Issuer shall keep or cause to be kept, at one of said
offices or agencies, a register for each series of Securities issued
hereunder which may include Registered Securities (hereinafter
collectively referred to as the "Securities Register") in which,
subject to such reasonable regulations as it may prescribe, and
subject also to the provisions of Section 2.4, the Issuer shall
provide for the registration of Registered Securities of such series
and shall register the transfer of Registered Securities of such
series as in this Article Three provided. The Securities Register
shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Trustee and
the Authenticating Agent are hereby appointed "Securities Registrars"
for the purpose of registering Registered Securities and registering
transfers of Registered Securities as herein provided. Subject to the
provisions of Section 2.4, upon due presentment for registration of
transfer of any Security of any series at any such office or agency,
the Issuer shall execute and register and the Trustee or any
Authenticating Agent shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Securities of
the same series for an equal aggregate principal amount.
Subject to the provisions of Section 2.4, at the option of
the Holder thereof, Securities of any series, whether Registered
Securities or Unregistered Securities, which by their terms are
registrable as to principal only or as to principal and interest, may,
to the extent and under the circumstances specified pursuant to
Section 3.1, be exchanged for such Registered Securities with Coupons
or Fully Registered Securities of such series, as may be issued by the
terms thereof. Securities of any series, whether Registered Securities
or Unregistered Securities, which by their terms provide for the
issuance of Unregistered Securities, may not, except to the extent and
under the circumstances specified pursuant to Section 3.1, be
exchanged for Unregistered Securities of such series. Unregistered
Securities of any series issued in exchange for Registered Securities
of such series between the record date for such Registered Securities
and the next Interest Payment Date will be issued without the Coupon
relating to such Interest Payment Date, and Unregistered Securities
surrendered in exchange
<PAGE>
for Registered Securities between such dates shall be surrendered
without the Coupon relating to such Interest Payment Date.
Upon presentation for registration of any Unregistered
Security of any series which by its terms is registrable as to
principal, at the office or agency of the Issuer to be maintained as
provided in Section 4.2, such Security shall be registered as to
principal in the name of the Holder thereof, and such registration
shall be noted on such Security. Any Security so registered shall be
transferable on the Securities Register of the Issuer upon
presentation of such Security at such office or agency for similar
notation thereon, but, to the extent permitted by law, such security,
may be discharged from registration by being in a like manner
transferred to bearer whereupon transferability by delivery shall be
restored. To the extent permitted by law, Unregistered Securities
shall continue to be subject to successive registrations and
discharges from registration at the option of the Holders thereof.
Unregistered Securities and Coupons shall be transferred by
delivery. All Securities presented for registration of transfer or for
exchange, redemption or payment shall (if so required by the Issuer or
the Securities Registrar) be duly endorsed by, or be accompanied by, a
written instrument or instruments of transfer in form satisfactory to
the Issuer and the Securities Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing.
Each Security issued upon registration of transfer or
exchange of Securities pursuant to this Section 3.6 shall be the valid
obligation of the Issuer, evidencing the same indebtedness and
entitled to the same benefits under this Indenture as the Security or
Securities surrendered upon registration of such transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but the Issuer 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 3.10, 10.6 or 14.3 not involving any
transfer.
The Issuer shall not be required (a) to issue, exchange or
register the transfer of any 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 such series and
ending at the close of business on the day of such mailing, or (b) to
exchange or register the transfer of any Securities selected, called
or being called for redemption except, in the case of any Security to
be redeemed in part, the portion thereof not to be so redeemed. None
of the Issuer, the Trustee, any Paying Agent or Securities Registrar
will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interest.
<PAGE>
SECTION 3.7. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities or Coupons. In case any temporary or definitive Security
shall become mutilated, defaced or be destroyed, lost or stolen, and
in the absence of notice to the Issuer or the Trustee that such
Security or Coupon has been acquired by a bona fide purchaser, the
Issuer in the case of a mutilated Security or Coupon shall, and in the
case of a lost, stolen or destroyed Security or Coupon may in its
discretion, execute, and upon an Issuer Request, the Trustee shall
authenticate and deliver, a new Security with like Coupons, if any, as
those attached to the mutilated, destroyed, lost or stolen Security
(so that neither gain nor loss in interest shall result), of the same
series, tenor and principal amount, and bearing a number, letter or
other distinguishing symbol not contemporaneously outstanding, or a
new Coupon, as appropriate, in exchange and substitution for the
mutilated Security or Coupon, or in lieu of and in substitution for
the Security or Coupon so destroyed, lost or stolen, or if any such
Security or Coupon shall have matured or shall be about to mature,
instead of issuing a substituted Security or Coupon, the Issuer may
pay or authorize the payment of the same without surrender thereof
(except in the case of a mutilated Security or Coupon); provided,
however, that interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an office or
agency located outside of the United States, unless otherwise provided
pursuant to Section 3.1. In every case the applicant for a substituted
Security or Coupon shall furnish to the Issuer and to the Trustee such
security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and to the Trustee evidence
to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon under
this Section 3.7, the Issuer 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 or any Authenticating Agent) connected
therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may,
instead of issuing a substitute Security or Coupon, pay or authorize
the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security or Coupon), if the applicant for
such payment shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as any
of them may require to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the
Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section 3.7 by virtue of the fact
that any such Security is destroyed, lost or stolen shall constitute
an additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in)
this
<PAGE>
Indenture equally and proportionately with any and all other
Securities and Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the
express condition that, to the extent permitted by law, the foregoing
provisions of this Section 3.7 are exclusive with respect to the
replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their
surrender.
SECTION 3.8. Payment of Interest; Interest Rights Preserved.
The Holder of any Fully Registered Securities at the close of business
on any record date with respect to any Interest Payment Date shall be
entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding the cancellation of such Securities upon
any transfer or exchange subsequent to the record date and prior to
such Interest Payment Date, and, if provided for in the Board
Resolution pursuant to Section 3.1, in the case of a Security issued
between a record date and the initial Interest Payment Date relating
to such record date, interest for the period beginning on the date of
issue and ending on such initial Interest Payment Date shall be paid
to the person to whom such Security shall have been originally issued.
In the case of Coupon Securities, the Holder of any Coupon shall be
entitled to receive the interest, if any, payable on such Interest
Payment Date, upon surrender on such Interest Payment Date of the
Coupon appertaining thereto in respect of such interest. Except as
otherwise specified as contemplated by Section 3.1, for Fully
Registered Securities of a particular series the term "record date" as
used in this Section 3.8 with respect to any Interest Payment Date
shall mean the close of business on the last day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is
the 15th day of a calendar month and shall mean the close of business
on the 15th day of the calendar month preceding such Interest Payment
Date if such Interest Payment Date is the first day of a calendar
month, whether or not such day shall be a Business Day in The City of
New York. At the option of the Issuer, payment of interest on any
Fully Registered Security may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the
Security Register.
If and to the extent the Issuer shall default in the payment
of the interest due on such Interest Payment Date in respect of any
Fully Registered Securities such defaulted interest shall be paid by
the Issuer, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Issuer may make payment of any defaulted interest to
the Holder of Fully Registered Securities at the close of business on
a subsequent record date established by notice given by mail,
first-class postage prepaid, by or on behalf of the Issuer to such
Holder at his address as it appears on the Security Register not less
than 15 days preceding such subsequent record date, such record date
to be not less than 10 days preceding the date of payment of such
defaulted interest.
<PAGE>
(b) The Issuer may make payment of any defaulted interest on
the Fully Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of such series may be listed, and
upon such notice as may be required by such exchange, if, after notice
given by the Issuer to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
Any defaulted interest payable in respect of a Coupon
Security of any series shall be payable pursuant to such procedures as
may be satisfactory to the Trustee in such manner that there is no
discrimination between the Holders of Fully Registered Securities and
Coupon Securities of such series, and notice of the payment date
therefor shall be given by the Trustee, in the name and at the expense
of the Issuer, in the manner provided in Section 13.4.
Subject to the foregoing provisions of this Section 3.8,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
SECTION 3.9. Cancellation of Securities; Destruction
Thereof. All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any
payment in respect of a sinking or analogous fund, and all Coupons
surrendered for payment or exchange, if surrendered to the Issuer or
any Paying Agent or any Securities Registrar, shall be delivered to
the Trustee for cancellation or, if surrendered to the Trustee, shall
be canceled by it, and no Securities or Coupons shall be issued in
lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall destroy canceled Securities and
Coupons held by it and deliver a certificate of destruction to the
Issuer. If the Issuer shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation.
SECTION 3.10. Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for
such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable in any authorized
denomination, and substantially in the form of the definitive
Securities of such series in lieu of which they are issued but with
such omissions, insertions and variations as may be appropriate for
temporary securities all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate.
Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Temporary Securities may be issued as Registered
Securities or Unregistered Securities, with or without one or more
Coupons attached. Without
<PAGE>
unreasonable delay the Issuer shall execute and shall furnish
definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor
without charge to a Holder at the Corporate Trust Office of the
Trustee or, in the case of temporary Securities issued in respect of
Unregistered Securities of any series, at the Corporate Trust Office
of the Trustee located in a city specified elsewhere in this Indenture
or pursuant to Section 3.1, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of the same series with
appropriate Coupons, if any, attached. Such exchange shall be made by
the Issuer at its own expense and without any charge therefor to a
Holder except that in case of any such exchange involving any
registration of transfer the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto. 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
authenticated and delivered hereunder.
SECTION 3.11. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION 3.12. Currency and Manner of Payments in Respect of
Securities. (a) With respect to Registered Securities of any series
denominated in Dollars or Foreign Currency and with respect to
Registered Securities of any series denominated in any currency unit,
including, without limitation, ECU, with respect to which the Holders
of Securities of such series have not made the election provided for
in paragraph (b) below, the following payment provisions shall apply:
(i) Except as provided in subparagraph (a)(ii) or in
paragraph (e) below, payment of the principal of and premium, if
any, on any Registered Security will be made at the Place of
Payment by delivery of a check in the currency or currency unit
in which the Security is payable on the payment date against
surrender of such Registered Security, and any interest on any
Fully Registered Security will be paid at the Place of Payment by
mailing a check in the currency or currency unit in which such
interest is payable to the Person entitled thereto at the address
of such Person appearing on the Securities Register.
(ii) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest on such
Security may also, subject to applicable laws and regulations, be
made at such other place or places as may be designated by the
Issuer by any appropriate method.
(b) With respect to Registered Securities of any series
denominated in any Foreign Currency or currency unit, including,
without limitation, ECU, the following payment provisions shall apply,
except as otherwise provided in paragraphs (e) and (f) below:
<PAGE>
(i) It may be provided pursuant to Section 3.1 with respect
to the Securities of such series that Holders shall have the
option to receive payments of principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest, if
any, on such Securities in any of the currencies which may be
designated for such election in such Securities by delivering to
the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business
on the record date immediately preceding the applicable payment
date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any
such change must be made not later than the close of business on
the record date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no
such change may be made with respect to payments to be made on
any Security of such series with respect to which notice of
redemption has been given by the Issuer pursuant to Article
Fourteen). Any Holder of any such Security, who shall not have
delivered any such election to the Trustee not later than the
close of business on the applicable record date will be paid the
amount due on the applicable payment date in the relevant
currency unit as provided in paragraph (a) of this Section 3.12.
Payment of principal of and premium, if any, shall be made on the
payment date against surrender of such Security. Payment of
principal of, premium, if any, and (with respect to Fully
Registered Securities only) interest, if any, shall be made at
the Place of Payment by mailing at such location a check, in the
applicable currency or currency unit, to the Person entitled
thereto at the address of such Person appearing on the Securities
Register.
(ii) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on
such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Issuer by any appropriate method.
(c) Payment of the principal of, and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will be
made unless otherwise specified pursuant to Section 3.1 or Section
10.1(f) by a Paying Agent at such place or places outside the United
States as may be designated by the Issuer pursuant to any applicable
laws or regulations by any appropriate method in the currency or
currency unit in which the Security is payable (except as provided in
paragraph (e) below) on the payment date against surrender of the
Unregistered Security, in the case of payment of principal and
premium, if any, or the relevant Coupon, in the case of payment of
interest, if any. Except as provided in paragraph (e) below, payment
with respect to Unregistered Securities and Coupons will be made by
check, subject to any limitations on the methods of effecting such
payment as shall be specified in the terms of the Security established
as provided in Section 3.1 and Section 10.1(f) and as shall be
required under applicable laws and regulations.
(d) Not later than the fourth Business Day after the record
date for each payment date, the Trustee will deliver to the Issuer a
written notice specifying, in the currency or currency unit in which
each series of the Securities is payable, the respective aggregate
<PAGE>
amounts of principal of, premium, if any, and interest, if any, on the
Securities to be made on such payment date, specifying the amounts so
payable in respect of Fully Registered Securities, Registered
Securities with Coupons and Unregistered Securities and in respect of
the Registered Securities as to which the Holders of Securities
denominated in any currency unit shall have elected to be paid in
another currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to
Section 3.1 and if at least one Holder has made such election, then,
not later than the eighth Business Day following each record date the
Issuer will deliver to the Trustee and each Paying Agent an Exchange
Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. The Dollar or
Foreign Currency amount receivable by Holders of Registered Securities
denominated in a currency unit who have elected payment in such
currency as provided in paragraph (b) above shall be determined by the
Issuer on the basis of the applicable Official Currency Unit Exchange
Rate set forth in the applicable Exchange Rate Officer's Certificate.
(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases to be used both by the government of the
country which issued such currency and for the settlement of
transactions by public institutions of or within the international
banking community, or if the ECU ceases to be used both within the
European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities, or if any
other currency unit in which a Security is denominated or payable
ceases to be used for the purposes for which it was established, then
with respect to each date for the payment of principal of, or premium,
if any, and interest, if any, on the applicable Securities denominated
or payable in such Foreign Currency, the ECU or such other currency
unit occurring after the last date on which such Foreign Currency, the
ECU or such other currency unit was so used (the "Conversion Date"),
the Dollar shall be the currency of payment for use on each such
payment date. The Dollar amount to be paid by the Issuer to the Paying
Agent and by the Paying Agent to the Holders of such Securities with
respect to such payment date shall be the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit as determined by the Dollar
Determination Agent as of the record date, if any, with respect to any
Interest Payment Date or the fifteenth day before the Maturity of an
installment of principal (the "Valuation Date"), in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in a
currency unit elects payment in a specified Foreign Currency as
provided for by paragraph (b) and such Foreign Currency ceases to be
used both by the government of the country which issued such currency
and for the settlement of transactions by public institutions of or
within the international banking community, such Holder shall receive
payment in such currency unit, and if ECU ceases to be used both
within the European Monetary System and for the settlement of
transactions by public institutions of or within the European
Communities, or if any other such currency unit ceases to be used for
the purposes for which it was established, such Holder shall receive
payment in Dollars.
<PAGE>
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by, and shall be set forth in a certificate delivered to
the Issuer, the Trustee and each Paying Agent of, the Dollar
Determination Agent as of each Valuation Date and shall be obtained by
converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by, and shall be set forth in a certificate delivered to
the Issuer, the Trustee and each Paying Agent of, the Dollar
Determination Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Valuation Date for such Component Currency.
(i) For purposes of this Section 3.12, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units or fractions thereof which such Component Currency
represented in the relevant currency unit, including, but not limited
to, the ECU, on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts
of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and
such single currency shall thereafter be a Component Currency. If
after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component
Currency shall be replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of such two
or more currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency divided by the
number of currencies into which such Component Currency was divided,
and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon
Dollar buying rate for that currency for cable transfers quoted in New
York City on the Valuation Date as certified for customs purposes by
the Federal Reserve Bank of New York. If such rates are not available
for any reason with respect to one or more currencies for which an
Exchange Rate is required, the Dollar Determination Agent shall use,
in its sole discretion and without
<PAGE>
liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one
or more major banks in New York City or in the country of issue of the
currency in question, or such other quotations as the Dollar
Determination Agent shall deem appropriate. Unless otherwise specified
by the Dollar Determination Agent, if there is more than one market
for dealing in any currency by reason of foreign exchange regulations
or otherwise, the market to be used in respect of such currency shall
be that upon which a nonresident issuer of securities designated in
such currency would purchase such currency in order to make payments
in respect of such securities.
All decisions and determinations of the Dollar Determination
Agent regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the Currency Unit and the Market Exchange Rate
shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the
Issuer, the Trustee, any Paying Agent and all Holders of the
Securities and Coupons denominated or payable in the relevant currency
or currency units. In the event that a Foreign Currency, ceases to be
used both by the government of the country which issued such currency
and for the settlement of transactions by public institutions of or
within the international banking community, the Issuer, after learning
thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in
Section 13.4 to the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions
of or within the European Communities, or any other currency unit in
which Securities or Coupons are denominated or payable, ceases to be
used for the purposes for which it was established, the Issuer, after
learning thereof, will immediately give notice thereof to the Trustee
(and the Trustee will promptly thereafter give notice in the manner
provided in Section 13.4 to the Holders) specifying the Conversion
Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount
above, the Issuer, after learning thereof, will similarly give notice
to the Trustee. The Trustee shall be fully justified and protected in
relying and acting upon information received by it from the Issuer and
the Dollar Determination Agent, if any, and shall not otherwise have
any duty or obligation to determine such information independently.
SECTION 3.13. Compliance with Certain Laws and Regulations.
If any Unregistered Securities or Coupon Securities are to be issued
in any series of Securities, the Issuer will 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 or Coupon Securities are sold or resold,
exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Issuer.
<PAGE>
ARTICLE FOUR
Covenants of the Issuer
The Issuer covenants and agrees for the benefit of each
series of Securities that on and after the date of execution of this
Indenture and, except as otherwise provided, so long as any of the
Securities of such series remain outstanding, as to which the Issuer
remains an obligor:
SECTION 4.1. Payment of Securities. The Issuer will duly and
punctually pay or cause to be paid (in the Dollars or the Foreign
Currency or currency unit in which the Securities of such series and
Coupons, if any, appertaining thereto are payable, except as otherwise
specified as contemplated by Section 3.1 for the Securities of such
series and except as provided in Sections 3.12(b), 3.12(e) and 3.12(f)
of this Indenture) the principal of, the premium, if any, and
interest, if any, on the Securities of such series at the place or
places, at the respective times and in the manner provided in such
Securities, in any Coupons appertaining thereto, and in this
Indenture. Each installment of interest on the Registered Securities
of any series may be paid by mailing checks for such interest payable
to or upon the written order of the Holders of Registered Securities
entitled thereto as they shall appear on the registry books of the
Issuer.
The interest on Coupon Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. The
interest, if any, on any temporary Unregistered Security shall be
paid, as to any installment of interest evidenced by a Coupon attached
thereto, if any, only upon presentation and surrender of such Coupon,
and, as to other installments of interest, if any, only upon
presentation of such Security for notation thereon of the payment of
such interest.
SECTION 4.2. Offices or Agency. So long as any of the
Securities remain Outstanding, the Issuer will maintain in the Borough
of Manhattan, The City of New York, New York, an office or agency
where Registered Securities of such series may be presented or
surrendered for payment, where Securities of such series may be
surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer in respect of the Securities of such
series and this Indenture may be served, which office or agency,
unless otherwise set forth in, or pursuant to, a Board Resolution or
supplemental indenture relating to the Securities of such series,
shall initially be the principal corporate trust facility of the
Trustee located in the Borough of Manhattan, The City of New York, New
York, and, if, the Trustee shall cease to maintain such corporate
trust facility, such office or agency shall be the principal corporate
trust office of the Authenticating Agent designated pursuant to
Section 7.14 hereof. So long as any Coupon Securities or Unregistered
Securities of any series remain Outstanding, the Issuer will (except
as specified pursuant to Section 3.1 or Section 10.1(f)) maintain one
or more offices or agencies outside the United States in such city or
cities as may be specified elsewhere in this Indenture or as
<PAGE>
contemplated by Section 3.1, with respect to such series, where
Coupons appertaining to Securities of such series or Unregistered
Securities of such series may be surrendered or presented for payment,
or surrendered for exchange pursuant to Section 3.6 and where notices
and demands to or upon the Issuer in respect of Coupons appertaining
to Securities of such series or the Unregistered Securities of such
series or of this Indenture may be served. The Issuer will give prompt
written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Issuer
shall fail to maintain such required office or agency or shall fail to
furnish the Trustee with the address thereof, presentations,
surrenders, notices and demands in respect of Registered Securities
may be made or served at the Corporate Trust Office of the Trustee and
the corporate trust office of any Authenticating Agent appointed
hereunder, and presentations, surrenders, notices and demands in
respect of Coupons appertaining to Securities of any series and
Unregistered Securities may be made or served at the Corporate Trust
Office of the Trustee in the other city or cities referred to above;
and the Issuer hereby appoints the Trustee and any Authenticating
Agent appointed hereunder its agents to receive all such
presentations, surrenders, notices and demands. The Issuer agrees to
appoint and continue to maintain the appointment of a Dollar
Determination Agent, if necessary, to perform the functions set forth
herein for the Dollar Determination Agent.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside The City of New York) where
the Securities of such series may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such
designation; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain
for such purposes an office or agency in the Borough of Manhattan, The
City of New York, and, except as otherwise specified pursuant to
Section 3.1 or Section 10.1(f), so long as any Unregistered Securities
or Coupon Securities remain Outstanding, one or more offices or
agencies outside the United States.
SECTION 4.3. Appointment To Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee with
respect to each series of Securities hereunder.
SECTION 4.4. Paying Agents. Whenever the Issuer shall
appoint a Paying Agent other than the Trustee with respect to the
Securities of any series, it will cause such Paying Agent 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:
(a) that it will hold all sums received by it as such Paying
Agent for the payment of the principal of, and the premium, if
any, and interest, if any, on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series, and the
Coupons, if any, appertaining thereto or of the Trustee;
<PAGE>
(b) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of, or the premium,
if any, or interest, if any, on the Securities of such series
when the same shall be due and payable; and
(c) that at any time during the continuance of any such
failure, upon the written request of the Trustee it will
forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
If the Issuer shall act as its own Paying Agent with respect
to the Securities of any series, it will, on or before each due date
of the principal of, premium, if any, or interest, if any, on the
Securities of such series and the Coupons, if any, appertaining
thereto, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities of such series and the Coupons, if any,
appertaining thereto a sum (in the currency or currency unit in which
the Securities of such series are denominated, except as otherwise
specified as contemplated by Section 3.1 for the Securities of such
series and except as provided in Sections 3.12(b), 3.12(e) and 3.12(f)
of this Indenture) sufficient to pay such principal, premium, if any,
or interest, if any, so becoming due. The Issuer will promptly notify
the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more Paying Agents
with respect to the Securities of any series, it will, prior to the
due date of the principal of, premium, if any, or interest, if any, on
the Securities of such series and the Coupons, if any, appertaining
thereto, deposit with a designated Paying Agent a sum (in the currency
or currency unit described in the preceding paragraph) sufficient to
pay the principal, premium, if any, or interest, if any, so becoming
due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium, if any, or interest, if any, and
(unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee at its Corporate Trust Office of its failure so to
act.
Anything in this Section to the contrary notwithstanding,
the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series
of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the
Issuer or any Paying Agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Sections 12.4 and 12.5.
SECTION 4.5. Limitation on Sale and Lease-Backs. The Issuer
will not, nor will it permit any Restricted Subsidiary to, enter into
any arrangement with any Person providing for the leasing by the
Issuer or any Restricted Subsidiary of any Principal Property (except
for temporary leases for a term of not more than three years and
except for leases between
<PAGE>
the Issuer and a Restricted Subsidiary or between Restricted
Subsidiaries), which property has been or is to be sold or transferred
by the Issuer or such Restricted Subsidiary to such person more than
120 days after the acquisition thereof or the completion of
construction and commencement of full operation thereof, unless either
(i) the Issuer shall apply an amount equal to the greater of the Fair
Value of such property or the net proceeds of such sale, within 120
days of the effective date of any such arrangement, to the retirement
(other than any mandatory retirement or by way of payment at maturity)
of Securities or indebtedness ranking on a parity with the Securities
or to the acquisition, construction, development or improvement of
properties, facilities or equipment used for operating purposes which
are, or upon such acquisition, construction, development or
improvement will be, a Principal Property or a part thereof; or (ii)
at the time of entering into such arrangement, such Principal Property
could have been subjected to a mortgage, pledge or other lien securing
indebtedness of the Issuer or a Restricted Subsidiary in a principal
amount equal to the Capitalized Lease-Back Obligation with respect to
such Principal Property under clause (m) of Section 4.6 without also
securing the Securities pursuant to such Section 4.6.
SECTION 4.6. Limitations on Liens. The Issuer will not, and
will not permit any Restricted Subsidiary to, create, suffer to be
created, or assume (directly or indirectly) any mortgage, pledge or
other lien upon any Principal Property, unless effective provision is
made by the Issuer to secure directly the Securities of all series by
such mortgage, pledge or other lien, equally and ratably with any and
all other indebtedness thereby secured, so long as any such
indebtedness shall be so secured; provided, however, that this Section
shall not apply to any of the following:
(a) any mortgage, pledge or other lien on any Principal
Property hereafter acquired, constructed or improved by the
Issuer or any Restricted Subsidiary which is created or assumed
to secure or provide for the payment of any part of the purchase
price of such property or the cost of such construction or
improvement, or any mortgage, pledge or other lien on any
Principal Property existing at the time of acquisition thereof;
provided, however, that in the case of any such acquisition the
mortgage, pledge or other lien shall not extend to any Principal
Property theretofore owned by the Issuer or any Restricted
Subsidiary;
(b) any mortgage, pledge or other lien existing upon any
property of a company which is merged with or into or is
consolidated into, or substantially all the assets or shares of
capital stock of which are acquired by, the Issuer or a
Restricted Subsidiary, at the time of such merger, consolidation
or acquisition; provided that such mortgage, pledge or other lien
does not extend to any other Principal Property, other than
improvements to the property subject to such mortgage, pledge or
other lien;
(c) any pledge or deposit to secure payment of workmen's
compensation or insurance premiums, or in connection with
tenders, bids, contracts (other than contracts for the payment of
money) or leases;
<PAGE>
(d) any pledge of, or other lien upon, any assets as
security for the payment of any tax, assessment or other similar
charge by any governmental authority or public body, or as
security required by law or governmental regulation as a
condition to the transaction of any business or the exercise of
any privilege or right;
(e) any pledge or lien necessary to secure a stay of any
legal or equitable process in a proceeding to enforce a liability
or obligation contested in good faith by the Issuer or a
Restricted Subsidiary or required in connection with the
institution by the Issuer or a Restricted Subsidiary of any legal
or equitable proceeding to enforce a right or to obtain a remedy
claimed in good faith by the Issuer or a Restricted Subsidiary,
or required in connection with any order or decree in any such
proceeding or in connection with any contest of any tax or other
governmental charge; or the making of any deposit with or the
giving of any form of security to any governmental agency or any
body created or approved by law or governmental regulation in
order to entitle the Issuer or a Restricted Subsidiary to
maintain self-insurance or to participate in any fund in
connection with workmen's compensation, unemployment insurance,
old age pensions or other social security or to share in any
provisions or other benefits provided for companies participating
in any such arrangement or for liability on insurance of credits
or other risks;
(f) any mechanics', carriers', workmen's, repairmen's or
other like liens, if arising in the ordinary course of business,
in respect of obligations which are not overdue or liability for
which is being contested in good faith by appropriate
proceedings;
(g) any lien or encumbrance on property in favor of the
United States of America, or of any agency, department or other
instrumentality thereof, to secure partial, progress or advance
payments pursuant to the provisions of any contract;
(h) any mortgage, pledge or other lien securing any
indebtedness incurred in any manner to finance or recover the
cost to the Issuer or any Restricted Subsidiary of any physical
property, real or personal, which prior to or simultaneously with
the creation of such indebtedness shall have been leased by the
Issuer or a Restricted Subsidiary to the United States of America
or a department or agency thereof at an aggregate rental, payable
during that portion of the initial term of such lease (without
giving effect to any options of renewal or extension) which shall
be unexpired at the date of the creation of such indebtedness,
sufficient (taken together with any amounts required to be paid
by the lessee to the lessor upon any termination of such lease)
to pay in full at the stated maturity date or dates thereof the
principal of and the interest on such indebtedness;
(i) any mortgage, pledge or other lien securing indebtedness
of a Restricted Subsidiary to the Issuer or a Restricted
Subsidiary, provided that in the case of any sale or other
disposition of such indebtedness by the Issuer or such Restricted
Subsidiary, such sale or other disposition shall be deemed to
constitute the creation of another mortgage, pledge or other
lien;
<PAGE>
(j) any mortgage, pledge or other lien affecting property of
the Issuer or any Restricted Subsidiary securing indebtedness of
the United States of America or a State thereof (or any
instrumentality or agency of either thereof) issued in connection
with a pollution control or abatement program required in the
opinion of the Issuer to meet environmental criteria with respect
to any facility of the Issuer or any Restricted Subsidiary and
the proceeds of which indebtedness have financed the cost of
acquisition of such program;
(k) the renewal, extension, replacement or refunding of any
mortgage, pledge, lien, deposit, charge or other encumbrance
permitted by the foregoing provisions of this Section upon the
same property theretofore subject thereto, or the renewal,
extension, replacement or refunding of the amount secured
thereby, provided that in each case such amount outstanding at
that time shall not be increased;
(l) any mortgage, pledge or liens affecting property of the
Issuer or any Restricted Subsidiary existing on the date of this
Indenture; or
(m) any other mortgage, pledge or other lien, provided that
immediately after the creation or assumption of such mortgage,
pledge or other lien, the total of (i) the aggregate principal
amount of indebtedness of the Issuer and Restricted Subsidiaries
secured by all mortgages, pledges and other liens created or
assumed under the provisions of this clause (m), plus (ii) the
aggregate amount of Capitalized Lease-Back Obligations of the
Issuer and Restricted Subsidiaries under the entire unexpired
terms of all leases entered into in connection with sale and
lease-back transactions which would have been precluded by the
provisions of Section 4.5 but for the satisfaction of the
condition set forth in clause (ii) thereof, shall not exceed an
amount equal to 15% of Consolidated Net Tangible Assets.
Neither (a) the lease of any property by the Issuer or a
Restricted Subsidiary, and rental obligations with respect thereto
(whether or not arising out of sale and lease-back of properties and
whether or not in accordance with generally accepted principles of
accounting such property is carried as an asset and such rental
obligations are carried as indebtedness on the Issuer's or a
Restricted Subsidiary's balance sheet) nor (b) the sale or other
transfer of (i) timber or other natural resources in place for a
period of time until, or in an amount such that, the purchaser will
realize therefrom a specified amount of money (however determined) or
a specified amount of such resources, or (ii) any other interest in
property of the character commonly referred to as a "production
payment", shall in any event be deemed to be the creation of a
mortgage, pledge or other lien.
SECTION 4.7. Certificates to Trustee. The Issuer will, on or
before April 1 in each year, commencing with the first calendar year
following the issuance of Securities of any series under this
Indenture, file with the Trustee a certificate of the principal
executive officer, the principal financial officer or the principal
accounting officer of the Issuer, covering the period from the date of
issuance of such Securities to the end of the calendar year in which
such Securities were issued, in the case of the first such
certificate, and covering the preceding calendar year in the case of
each subsequent certificate, and stating
<PAGE>
whether or not, to the knowledge of the signer, the Issuer has
complied with all conditions and covenants on its part contained in
this Indenture, and, if the signer has obtained knowledge of any
default by the Issuer in the performance, observance or fulfillment of
any such condition or covenant, specifying each such default and the
nature thereof. For the purpose of this Section 4.7, compliance shall
be determined without regard to any grace period or requirement of
notice provided pursuant to the terms of this Indenture.
ARTICLE FIVE
Securityholders Lists and Reports by the
Issuer and the Trustee
SECTION 5.1. Issuer To Furnish Trustee Information as to
Names and Addresses of Securityholders. The Issuer covenants and
agrees that it will furnish or cause to be furnished to the Trustee
for the Securities of each series a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders of
the Registered Securities of each series:
(a) semiannually and not more than 15 days after each record
date for the payment of interest, if any, on such Securities of
such series, as of such record date, and on dates to be
determined pursuant to Section 3.1 for non-interest bearing
Securities of such series in each year, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the
Registered Securities of such series, as of the respective record
dates therefor (and on dates to be determined pursuant to Section
3.1 if the Securities of such series do not bear interest) as of
a date not more than 15 days prior to the time such information
is furnished and need not include information received after such
date;
provided that if and so long as the Trustee shall be the Securities
Registrar for such series, such list shall not be required to be
furnished.
The Issuer shall also be required to furnish such
information which is known to it concerning the Holders of Coupons and
Unregistered Securities; provided, however, that the Issuer shall have
no obligation to investigate any matter relating to any Holder of an
Unregistered Security or any Holder of a Coupon.
<PAGE>
SECTION 5.2. Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the Holders of each series of Securities (1) contained in the most
recent list furnished to it as provided in Section 5.1, (2) maintained
by the Trustee in its capacity as Paying Agent for such series (if so
acting) and of the Security Registrar for such series, and (3) filed
with it within two preceding years pursuant to the provisions of
paragraph (ii) of subsection (c) of Section 5.4.
The Trustee for any series of the Securities may (1) destroy
any list furnished to it as provided in Section 5.1 upon receipt of a
new list so furnished, (2) destroy any information received by it as
Paying Agent for such series (if so acting) hereunder upon delivery to
itself as Trustee of a list containing the names and addresses of the
Holders of Securities of such series obtained from such information
since the delivery of the next previous list, if any, (3) destroy any
list delivered to itself as Trustee which was compiled from
information received by it as Paying Agent (if so acting) upon the
receipt of a new list so delivered, and (4) destroy any information
filed with it by Holders of Securities of such series for the purpose
of receiving reports pursuant to the provisions of paragraph (ii) of
subsection (c) of Section 5.4, but not until two years after such
information has been filed with it.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has
owned a Security of such series 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 of
Securities of a particular series (in which case at least three of the
applicants must all hold Securities of such series) or with Holders of
all Securities with respect to their rights under this Indenture or
under such Securities and such application 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, as its election, either:
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.2; or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section 5.2, and as to the
approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of Securities of such
series or all Holders of Securities of all series for which it is
Trustee, as the case may be, whose name and address appear in the
information preserved at the time by
<PAGE>
the Trustee in accordance with the provisions of subsection (a) of
this Section 5.2 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
interests of the Holders of Securities of such series or all Holders
of Securities of all series for which it is Trustee, as the case may
be, 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 refusing to sustain any of
such objections or if, after the entry of 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 Securityholders 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) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither
the Issuer nor the Trustee nor any Paying Agent shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance
with the provisions of subsection (b) of this Section 5.2, 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 such subsection (b).
SECTION 5.3. Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee for each series of Securities,
within 15 days after the Issuer 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 Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Issuer is not required to file information, documents,
or reports pursuant to either of such Sections, then to file with
the Trustee and the Commission, in accordance with 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, as amended, in respect of a
security listed and registered on a national exchange as may be
prescribed from time to time in such rules and regulations;
<PAGE>
(b) to file with the Trustee for each series of Securities
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 Issuer with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the
manner and to the extent provided in Section 5.4(c) and (d),
within 30 days after the filing thereof with the Trustee for each
series of Securities, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant
to subsections (a) and (b) of this Section as may be required to
be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
SECTION 5.4. Reports by the Trustee. (a) On or before July
15 in each year following the date hereof, so long as any Securities
are outstanding hereunder, the Trustee for each series of Securities
shall transmit by mail as provided below to the Securityholders of
such series, as hereinafter in this Section provided, a brief report
dated as of the preceding May 15 with respect to any of the following
events which may have occurred during the twelve months preceding the
date of such report (but if no such event has occurred within such
period, no report need be transmitted):
(i) any change to its eligibility under Section 7.9 and its
qualifications under Section 7.8;
(ii) the creation of or any material change to a
relationship specified in Section 310(b)(1) through Section
310(b)(10) of the Trust Indenture Act;
(iii) 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) 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 of any series, 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 of any series Outstanding on
the date of such report;
(iv) any change to the amount, interest rate, and maturity
date of all other indebtedness owing by the Issuer (or by any
other obligor on the Securities of any series) 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 any indebtedness based upon a creditor relationship
arising in any manner described in Section 7.13(b)(2), (3), (4)
or (6);
(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such
report;
<PAGE>
(vi) any additional issue of Securities of any series for
which it is Trustee which the Trustee has not previously
reported; and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously
reported and which in its opinion materially affects the
Securities of any series, except action in respect of a default,
notice of which has been or is to be withheld by it in accordance
with the provisions of Section 6.11.
(b) The Trustee for each series of Securities shall transmit
to the Securityholders of such series, as provided in subsection (c)
of this Section, 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 the
provisions of subsection (a) of this Section (or if no such report has
yet been so transmitted, since the date of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior
to that of the Securities of any series on property or funds held or
collected by it as Trustee and which it has not previously reported
pursuant to this subsection (b), 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 Securities of such series Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all registered Holders of Registered Securities, as
the names and addresses of such Holders appear in the applicable
Securities Register;
(ii) to such Holders of Securities of any series as have,
within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
and
(iii) except in the cases of reports pursuant to subsection
(b) of this Section 5.4, to each Holder of a Security of any
series whose name and address is preserved at the time by the
Trustee for such series, as provided in subsection (a) of Section
5.2.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders of any series, be furnished to the
Issuer and be filed by the Trustee for such series with each stock
exchange upon which the Securities of any series are listed and also
with the Commission. The Issuer agrees to notify the Trustee for each
series when and as the Securities of such series become admitted to
trading on any national securities exchange.
<PAGE>
ARTICLE SIX
Remedies of the Trustee and
Securityholders on Event of Default
SECTION 6.1. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default", with respect to the
Securities of any series, wherever used herein, means each one of the
following events which shall have occurred and be continuing (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), unless such
event is either inapplicable to a particular series or is specifically
deleted or modified in the applicable Board Resolution or in the
supplemental indenture under which such series of Securities is
issued, as the case may be, as contemplated by Section 3.1:
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same
shall become due and payable and continuance of such default for
a period of 30 days; or
(b) default in the payment of all or any part of the
principal of or the premium, if any, on any of the Securities of
such series as and when the same shall become due and payable,
either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the deposit of any sinking fund payment when
and as due and payable by the terms of the Securities of such
series; or
(d) default in the performance or observance of any other
covenant or agreement of the Issuer in respect of the Securities
of such series (other than a covenant or agreement in respect of
the Securities of such series a default in whose performance or
observance is elsewhere in this Section specifically dealt with)
and continuance of such default for a period of 60 days after
there has been given, by registered or certified mail, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, a written notice
specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) an event of default, as defined in any indenture or
instrument evidencing or under which the Issuer has at the date
of this Indenture or shall hereafter have outstanding at least
$10,000,000 aggregate principal amount of indebtedness for
borrowed money, shall happen and be continuing and such
indebtedness shall have been accelerated so that the same shall
be or become due and payable prior to the date on which the same
would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within 30 days
after notice thereof shall have been given to the Issuer by the
<PAGE>
Trustee (if such event be known to it) or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding; provided,
however, that, if such event of default under such indenture or
instrument shall be remedied or cured by the Issuer or waived by
the holders of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived, without further action upon
the part of either the Trustee or any of the Securityholders; or
(f) the entry of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer in
an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Issuer or for 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 unstayed
and in effect for a period of 60 consecutive days; or
(g) the commencement by the Issuer of a voluntary case under
the Federal bankruptcy laws, as now constituted or hereafter
amended, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or the consent by it to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar
official) of the Issuer or for any substantial part of its
property, or the making by it of any assignment for the benefit
of its creditors; or
(h) any other Event of Default established by or pursuant to
a Board Resolution or one or more indentures supplemental hereto
as applicable to the Securities of such series.
If an Event of Default described in clause (a), (b), (c), (d) or (h)
above (if the Event of Default under clause (d) or (h) is with respect
to less than all series of Securities then Outstanding) occurs and is
continuing, then and in each and every such case, unless the principal
of all of the Securities of such series shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then
Outstanding hereunder (each such series voting as a separate class),
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms of such
series) of all Securities of such series and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an
Event of Default described in clause (d), (e), (f), (g) or (h) above
(if the Event of Default under clause (d) or (h) is with respect to
all series of Securities then Outstanding) occurs and is continuing,
then and in each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if
any Securities
<PAGE>
are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities then
Outstanding and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that, if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of the Securities
of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay in the currency or currency
unit in which the Securities of such series are payable (except as
otherwise specified as contemplated by Section 3.1 for the Securities
of such series and except as provided in Sections 3.12(b), 3.12(e) and
3.12(f) of this Indenture), all matured installments of interest, if
any, upon all the Securities of such series (or upon all the
Securities, as the case may be) and (in the currency or currency unit
described above) the principal of (and premium, if any, on) any and
all Securities of such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the
extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the Overdue Rate
applicable to such series to the date of such payment or deposit) and
in Dollars all amounts payable to the Trustee pursuant to the
provisions of Section 7.6 and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under this Indenture,
other than the nonpayment of the principal of and accrued interest on
Securities of such series which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the Holders of a majority in
aggregate principal amount of the Securities of such series (each
Series voting as a separate class) or of all the Securities (voting as
a single class), as the case may be, then Outstanding, by written
notice to the Issuer and to the Trustee, may waive all defaults with
respect to that series (or with respect to all the Securities, as the
case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or
for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall
be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Issuer and the
Trustee shall continue as though no such proceedings had been taken.
<PAGE>
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration
has been rescinded and annulled, the principal amount of such Original
Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of
such Original Issue Discount Securities.
SECTION 6.2. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the
Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days
or (b) in case default shall be made in the payment of all or any part
of the principal of or any premium, if any, on any Securities of any
series when the same shall have become due and payable, whether upon
Maturity of the Securities of such series or upon any redemption or by
declaration or otherwise or (c) in case of default in the making or
satisfaction of any sinking fund payment or analogous obligation when
the same becomes due by the terms of the Securities of any
series--then upon demand of the Trustee for such series, the Issuer
will pay to the Trustee for the benefit of the Holder of any such
Security (or Holders of any such series of Securities in the case of
clause (c) above) and the Holders of any Coupons appertaining thereto
the whole amount that then shall have become due and payable on any
such Security (or Securities of any such series in the case of clause
(c) above) and matured Coupons, if any, appertaining thereto for the
principal, premium, if any, and interest, if any, with interest upon
the overdue principal and premium, if any, and, so far as payment of
the same is enforceable under applicable law, on overdue installments
of interest, at the Overdue Rate applicable to any such Security (or
Securities of any such series in the case of clause (c)); and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection and any further amounts payable
to the Trustee pursuant to the provisions of Section 7.6.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action
or proceedings at law or in equity for the collection of the sums so
due and unpaid and may prosecute any such action or proceedings to
judgment or final decree and may enforce any such judgment or final
decree against the Issuer or other obligor upon such Securities (or
Securities of any such series in the case of clause (c)) and Coupons
and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities (or Securities of any
such series in the case of clause (c)) and Coupons, wherever situated,
the moneys adjudged or decreed to be payable.
The Trustee for any series of the Securities shall be
entitled and empowered, either in its own name as trustee of an
express trust, or as attorney-in-fact for the Holders of any of
<PAGE>
the Securities of such series and for the Holders of any Coupons
appertaining thereto or in both such capacities, to file such proof of
debt, amendment of proof of debt, claim, petition or other document as
may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of Securities of such series and the
Holders of any Coupons appertaining thereto allowed in any equity
receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or other similar proceedings, or any judicial
proceedings, relative to the Issuer or any other obligor on the
Securities of such series and any Coupons appertaining thereto or its
creditors or its property. The Trustee for each series of the
Securities is hereby irrevocably appointed (and the successive
respective Holders of the Securities of such series and the Holders of
any Coupons appertaining thereto, by taking and holding the same,
shall be conclusively deemed to have so appointed the Trustee) the
true and lawful attorney-in-fact of the respective Holders of the
Securities of such series and the Holders of any Coupons appertaining
thereto, with authority to make or file in the respective names of the
Holders of the Securities of such series and the Holders of any
Coupons appertaining thereto or on behalf of all the Holders of
Securities of all series and the Holders of any Coupons appertaining
thereto for which it is Trustee any proof of debt, amendment of proof
of debt, claim, petition or other document in any such proceedings and
to receive payment of any sums becoming distributable on account
thereof, and to execute any other papers and documents and do and
perform any and all acts and things for and on behalf of such Holders
of the Securities of such series and the Holders of any Coupons
appertaining thereto, as may be necessary or advisable in the opinion
of the Trustee in order to have the respective claims of the Holders
of the Securities of such series and the Holders of any Coupons
appertaining thereto against the Issuer or any other obligor on the
Securities of such series and any Coupons appertaining thereto and/or
its property allowed in any such proceedings, and to receive payment
of or on account of such claims in moneys or such other properties
payable therefor and to distribute the same; provided, however, that
nothing herein contained shall be deemed to authorize or empower the
Trustee to consent to or accept or adopt, on behalf of any Holder of
Securities of any series or any Holder of any Coupons appertaining
thereto, any plan of reorganization, arrangement or readjustment of
the Issuer or any other obligor on the Securities of any series and
any Coupons appertaining thereto or, by other action of any character
in any such proceeding, to waive or change in any way any right of any
Holder of any Security of any series or any Holder of any Coupon
appertaining thereto even though it may otherwise be entitled so to do
under any present or future law, all such power or authorization being
thereby expressly denied.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining thereto, may be enforced by the Trustee for such series
without the possession of any of the Securities of any series or
Coupons appertaining thereto, or the production thereof on any trial
or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the
Trustee for such series, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the holders
of the Securities or Coupons in respect of which such action was
taken.
<PAGE>
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be party) the Trustee shall be
held to represent all the Holders of the Securities in respect of
which such action was taken, and it shall not be necessary to make any
Holders of such Securities parties to any such proceedings.
SECTION 6.3. Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of any series of
the Securities, together with any other sums held by the Trustee (as
such) hereunder (other than sums held in trust for the benefit of the
Holders of particular Securities or Coupons), shall be applied in the
following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or
interest, upon presentation (except in respect of Subdivision First
below) of the several Securities and any Coupons appertaining thereto
in respect of which moneys have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such
series in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which moneys have been collected,
including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys,
and of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith, and all other amounts due to
the Trustee or any predecessor Trustee pursuant to Section 7.6;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the order
of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee), so far as it may be enforceable under applicable
law, upon the overdue installments of interest at the Overdue
Rate applicable to such series, such payments to be made ratably
to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of
such series for principal, premium, if any, and interest, if any,
with interest upon the overdue principal, and (to the extent that
such interest has been collected by the Trustee), so far as
payment of the same is enforceable under applicable law, upon
overdue installments of interest, if any, at the Overdue Rate
applicable to such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal, premium, if any, and interest, if any, without
preference or priority, of principal and premium, if any, over
interest, or of interest, if any, over principal and premium, if
any, or of any installment of interest, if
<PAGE>
any, over any other installment of interest, if any, or of any
Security of such series over any other Security of such series,
or of any Coupon appertaining thereto over any other Coupon
appertaining thereto, ratably to the aggregate of such principal
premium, if any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto or as a
court of competent jurisdiction may direct.
SECTION 6.4. Suits for Enforcement. In case an Event of
Default with respect to Securities of any series has occurred, has not
been waived and is continuing, the Trustee for such series may in its
discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.
SECTION 6.5. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case the
Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of
the Issuer, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.
SECTION 6.6. Limitations on Suits by Securityholders. No
Holder of any Security of any series or Holder of any Coupon
appertaining thereto shall have any right by virtue or by availing of
any provision of this Indenture to institute any action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any
other remedy hereunder, unless such Holder previously shall have given
to the Trustee for such series written notice of default with respect
to such series and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee for such
series to institute such action or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 6.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of
every Security and by the taker and Holder of any Coupon appertaining
thereto with every other taker and Holder of any Security and of any
Coupon appertaining thereto and the Trustee for the Securities of each
series that no one or more Holders of
<PAGE>
Securities of any series or of any Coupons appertaining thereto shall
have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights
of any other Holder of Securities of such series or of any Coupons
appertaining thereto, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of such series
or of any Coupons appertaining thereto. For the protection and
enforcement of the provisions of this Section, each and every Holder
of Securities of any series or of any Coupons appertaining thereto and
the Trustee shall be entitled to such relief as can be given either at
law or in equity.
SECTION 6.7. Unconditional Right of Securityholders To
Institute Certain Suits. Nothing contained in this Indenture, in the
Securities of any series or in any Coupon appertaining thereto shall
affect or impair the obligation of the Issuer, which is unconditional
and absolute, to pay the principal of, and premium, if any, and
interest, if any, on the Securities of such series at the respective
places, at the respective times, at the respective rates, in the
respective amounts and in the coin, currency, or currency unit therein
and herein prescribed, or affect the right of any Holder of a Security
of any series or a Coupon to receive payment of the principal of (or
premium, if any) or interest, if any, on any such Security or Coupon
on or after the Maturity of such Security or the related Interest
Payment Date, or affect or impair the right of action, which is also
absolute and unconditional, of any Holder of any Security or Coupon,
if any, to institute suit to enforce such payment at the respective
due dates expressed in such Security or Coupon, if any, or upon
redemption, by declaration, repayment or otherwise as herein provided
without reference to, or the consent of, the Trustee or the Holder of
any other Security or Coupon, if any, unless such Holder consents
thereto.
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 6.6, no
right or remedy herein conferred upon or reserved to the Trustee for
any series of the Securities or to the Holder of any Security of such
series or any Coupon appertaining thereto 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.
No delay or omission of the Trustee or of any Holder of any
Security of any series or any Coupon appertaining thereto to exercise
any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall
be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.6, every power and
remedy given by this Indenture or by law to the Trustee for any series
of the Securities or to the Holder of the Security of such series or
any Coupon appertaining thereto may be exercised from time to time,
and as often as shall be
<PAGE>
deemed expedient, by the Trustee or by the Holder of such Security or
any Coupon appertaining thereto.
SECTION 6.9. Control by the Holders of Securities. The
Holders of a majority in aggregate principal amount of the Securities
of each series affected (with each series voting as a separate class)
at the time Outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy
available to the Trustee for such series, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such
series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of
Section 7.1) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors,
the executive committee or a trust committee of directors or
responsible officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the
actions or forbearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 7.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 6.10. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities of
any series as provided in Section 6.1, the Holders of a majority in
aggregate principal amount of the Securities of such series at the
time Outstanding may on behalf of the Holders of all the Securities of
such series waive any past default or Event of Default described in
clauses (d) and (h) of Section 6.1 which relates to less than all
series of Securities then Outstanding, the Holders of a majority in
aggregate principal amount of the Securities then Outstanding affected
thereby (each series voting as a separate class) may waive any such
default or Event of Default or, in the case of an event specified in
clause (d) or (h) (if the Event of Default under clause (d) or (h)
relates to all series of Securities then Outstanding), (e), (f) or (g)
of Section 6.1, the Holders of a majority in aggregate principal
amount of all the Securities then Outstanding (voting as one class)
may waive any such default or Event of Default and its consequences,
except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of
each Security affected. In the case of any such waiver, the Issuer,
the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively,
such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall
be deemed to have been cured and not to have occurred for every
purpose of this
<PAGE>
Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 6.11. Trustee To Give Notice of Default, but May
Withhold in Certain Circumstances. The Trustee shall transmit to the
Securityholders of any series, as the names and addresses of such
Holders appear on the registry books, and to such Holders of
Securities of any series and of Coupons as have, within two years
preceding such notice, filed their names and addresses with the
Trustee for that purpose, notice by mail of all defaults known to the
Trustee which have occurred with respect to such series, such notice
to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice
(the term "default" or "defaults" for the purposes of this Section
being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the
principal of or interest on any of the 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 trustees and/or responsible officers of the
Trustee in good faith determines that the withholding of such notice
is in the interests of the Securityholders of such series and of
Coupons, if any, appertaining thereto.
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs. All parties to this Indenture agree, and
each Holder of any Security and each Holder of any Coupon by his
acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the
Trustee for the Securities of any series 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 Trustee for the
Securities of any series, to any suit instituted by any Securityholder
or group of Securityholders of any series holding in the aggregate
more than 10% in aggregate principal amount of the Securities of such
series Outstanding or, in the case of any suit relating to or arising
under clause (d) or (h) of Section 6.1 (if the suit relates to
Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby
or, in the case of any suit relating to or arising under clause (d),
(h) (if the suit under clause (d) or (h) relates to all the Securities
then Outstanding), (e), (f) or (g) of Section 6.1, 10% in aggregate
principal amount of all Securities Outstanding or to any suit
instituted by any Holder of Securities or Coupons for the enforcement
of the payment of the principal of, premium, if any, or interest, if
any, on any Security or Coupon on or after the due date expressed in
such Security or Coupon.
SECTION 6.13. Judgment Currency. If, for the purpose of
obtaining a judgment in any court with respect to any obligation of
the Issuer hereunder or under any Security or
<PAGE>
Coupon, it shall become necessary to convert into any other currency
or currency unit any amount in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall
be made at the Conversion Rate as in effect on the date the Issuer
shall make payment to any person in satisfaction of such judgment. If,
pursuant to any such judgment, conversion shall be made on a date
other than the date payment is made and there shall occur a change
between such Conversion Rate and the Conversion Rate as in effect on
the date of payment, the Issuer agrees to pay such additional amounts
(if any) as may be necessary to ensure that the amount paid is the
amount in such other currency or currency unit which, when converted
at the Conversion Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such Security
or Coupon. Any amount due from the Issuer under this Section 6.13
shall be due as a separate debt and is not to be affected by or merged
into any judgment being obtained for any other sums due hereunder or
in respect of any Security or Coupon. In no event, however, shall the
Issuer be required to pay more in the currency or currency unit due
hereunder or under such Security or Coupon at the Conversion Rate as
in effect when payment is made than the amount of currency or currency
unit stated to be due hereunder or under such Security or Coupon so
that in any event the Issuer's obligations hereunder or under such
Security or Coupon will be effectively maintained as obligations in
such currency or currency unit.
For purposes of this Section 6.13, "Conversion Rate" shall
mean the spot rate at which in accordance with normal banking
procedures the currency or currency unit into which an amount due
hereunder or under any Security or Coupon is to be converted could be
purchased with the currency or currency unit due hereunder or under
any Security or Coupon from major banks located in New York, London,
or any other principal market for such purchased currency or currency
unit.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any
series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of
that series and after the curing or waiving of all Events of Default
which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth
in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or
waived) the Trustee as to that series 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.
<PAGE>
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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of such series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such
statements, 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) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(c) the Trustee shall not be liable for any determination,
action or judgment of any Dollar Determination Agent or any other
agent appointed by the Issuer pursuant to this Indenture; and
(d) the Trustee for the Securities of any series 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 Securities of such series pursuant to Section 6.9
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.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there shall be
reasonable ground for believing that the repayment of such funds or
adequate indemnity against such liability is not reasonably assured to
it.
<PAGE>
SECTION 7.2. Certain Rights of the Trustee. Subject to
Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers'
Certificate, certificate of a Dollar Determination Agent or any
other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof
certified by the Secretary or any Assistant Secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to
be taken by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee for Securities of any series shall be under
no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of
the Securityholders of such series pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon,
security or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
Outstanding; provided that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Issuer upon demand; and
<PAGE>
(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 not regularly in its employ and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof. The
recitals contained herein and in the Securities, except the
certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or
Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc. The Trustee, any Paying Agent, any Securities
Registrar or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the
Trustee or such agent and, subject to Sections 7.8 and 7.13, if
operative, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee, Paying Agent, Securities
Registrar or such agent.
SECTION 7.5. Moneys Held by Trustee. Subject to the
provisions of Section 4.4 hereof, all moneys in any currency or
currency unit received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. The Trustee shall be
under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Issuer.
SECTION 7.6. Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee
for the Securities of each series from time to time, and the Trustee
shall be entitled to, reasonable compensation in Dollars (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the Issuer
covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee in Dollars for the Securities of each series upon
its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or
bad faith. The Issuer also covenants to indemnify in Dollars the
Trustee and each predecessor Trustee for the Securities of each series
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 this
Indenture or the trusts hereunder and the performance of its duties
hereunder, including the costs and expenses of defending itself
against or investigating any
<PAGE>
claim of liability in the premises. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a claim prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular
Securities, and the Securities are hereby subordinated to such senior
claim.
SECTION 7.7. Right of Trustee To Rely on Officers'
Certificate, etc. Subject to Sections 7.1 and 7.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior
to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.8. Qualification of Trustee; Conflicting
Interests. The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time provided for therein. In
determining whether the Trustee has a conflicting interest as defined
in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded this Indenture with
respect to Securities of any particular series of Securities other
than that series. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second-to- last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.9. Persons Eligible for Appointment as Trustee.
There shall at all times be a Trustee for each series of Securities
hereunder, which shall at all times be either:
(i) a corporation organized and doing business under the
laws of the United States of America or of any State or the
District of Columbia which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or
examination by Federal, state or District of Columbia authority,
or
(ii) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either
case having a combined capital
<PAGE>
and surplus of at least $10,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid 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 condition so published. In case at any time the Trustee
for the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in
Section 7.10. Neither the Issuer nor any person directly or
indirectly controlling, controlled by or under common control
with the Issuer shall serve as trustee for the Securities of any
series issued hereunder.
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, for the Securities of any series may at any time
resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and by mailing
notice thereof by first-class mail to Holders of the applicable series
of Securities at their last addresses as they shall appear on the
Security Register. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may,
subject to the provisions of Section 6.12, on behalf of himself and
all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee for the Securities of any series shall
fail to comply with the provisions of Section 7.8 with
respect to any series of Securities after written request
therefor by the Issuer or by any Securityholder who has been
a bona fide Holder of a Security or Securities of such
series for at least six months;
(ii) the Trustee for the Securities of any series shall
cease to be eligible in accordance with the provisions of
Section 7.9 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder of such
series; or
(iii) the Trustee for the Securities of any series
shall become incapable of acting with respect to any series
of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public
<PAGE>
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, the Issuer may remove the Trustee with respect
to the applicable series of Securities and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order
of the Board of Directors of the Issuer, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 6.12, any
Securityholder who has been a bona fide Holder of a Security or
Securities 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 removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such
court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee for
such series.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at any
time remove the Trustee with respect to the Securities of such series
and appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuer the evidence provided for in
Section 8.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series of the Securities and any appointment of a successor
trustee with respect to such series pursuant to any of the provisions
of this Section 7.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
trustee with respect to all or any applicable series of the Securities
shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers,
duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee for such
series hereunder; but, nevertheless, on the written request of the
Issuer, or of the successor trustee, upon payment of its charges then
unpaid, the Trustee ceasing to act shall, subject to Section 4.4, pay
over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by
such trustee to secure any amounts then due it pursuant to the
provisions of Section 7.6.
<PAGE>
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an
indenture supplemental hereto which shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is
not retiring shall continue to be vested in the predecessor Trustee
and 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 cotrustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section 7.11
unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 7.11, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities of any applicable series
and to the Holders of Coupons, if any, appertaining thereto for which
such successor trustee is acting as Trustee at their last addresses as
they shall appear in the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined
with the notice called for by Section 7.10. If the Issuer fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Issuer.
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation into which the
Trustee for the Securities of any series 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee for such series
hereunder; provided that such corporation shall be qualified under the
provisions of Section 7.8 and eligible under the provisions of Section
7.9, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities
of one or more series shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities
so authenticated; and, in case at that time any of the Securities of
any series shall not have been authenticated, any successor to the
trustee may authenticate such Securities either in the name of any
predecessor hereunder or
<PAGE>
in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities of any series in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 7.13. Preferential Collection of Claims Against the
Issuer. (a) Subject to the provisions of this Section, if the Trustee
for the Securities of any series shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Issuer or any
other obligor of the Securities of such series within three 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 of such series, the Holders of the Coupons, if any,
appertaining thereto and the holders of other indenture securities (as
defined in this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor, in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Issuer and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in subsection (a)(2) of
this Section or from the exercise of any right of setoff which
the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Issuer upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three 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 Issuer 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 Issuer)
who is liable thereon, (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 Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Code 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 three months' period;
<PAGE>
(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 three 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 three 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 such 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 three 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
preexisting claim of the Trustee as such creditor, such claim shall
have the same status as such preexisting claim.
If the Trustee for the Securities of any series 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 of the Securities of such series, the Holders of
the Coupons, if any, appertaining thereto and the holders of other
indenture securities in such manner that the Trustee, such 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 Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Code
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 Issuer of the funds and
property in such special account and before crediting to the
respective claims of the Trustee, Holders of the Securities of such
series, the Holders of the Coupons, if any, appertaining thereto and
the holders of other indenture securities dividends on claims filed
against the Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code 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 in proceedings
for reorganization pursuant to the Federal Bankruptcy Code 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 proceeding
for reorganization is pending shall have jurisdiction (i) to apportion
among the Trustee, the Holders of such Securities, the Holders of the
Coupons, if any, appertaining thereto and the holders of other
<PAGE>
indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the
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, the Holders of such Securities, the Holders of the Coupons,
if any, appertaining thereto 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, 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 who has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been removed
prior to the beginning of such three months' period, it shall be
subject to the provisions of this subsection (a) 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 three months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation 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
advance and of the circumstances surrounding the making thereof
is given to the Holders of the applicable series of Securities
and the Holders of the Coupons, if any, appertaining thereto, 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;
<PAGE>
(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)(3) below;
(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 Issuer; or
(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)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of the
Securities of the applicable series or upon the other indenture
securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" shall mean
securities upon which the Issuer is an obligor (as defined in the
Trust Indenture Act) outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of subsection
(a) of this Section and (iii) under which a default exists at the
time of the apportionment of the funds and property held in said
special account;
(3) the term "cash transaction" shall mean any transaction
in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing
the purchase, processing, manufacture, 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 the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously
constituting the security; provided that the security is received
by the Trustee simultaneously with the creation of the creditor
relationship with the Issuer arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 7.14. Authenticating Agent. So long as any
Securities of a series remain outstanding, if the Trustee ceases to
maintain a corporate trust facility in the Borough of
<PAGE>
Manhattan, The City of New York, New York, or otherwise upon an Issuer
Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Issuer shall elect, by the
Trustee for such series of Securities to act as its agent on its
behalf and subject to its direction in connection with the
authentication and delivery of each series of Securities for which it
is serving as Trustee. Securities of each such series authenticated by
such Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Securities of any
series by the Trustee for such series or to the Trustee's Certificate
of Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee for such series
except by way of original issuance by an Authenticating Agent for such
series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent. Such Authenticating Agent shall
at all times be a corporation organized and doing business under the
laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $10,000,000 and subject to supervision
or examination by Federal or state authority. If the Trustee does not
maintain a corporate trust facility in the Borough of Manhattan, The
City of New York, New York, the Authenticating Agent shall have its
principal office and place of business in the Borough of Manhattan,
The City of New York, New York.
Any corporation into which any 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 any Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent with respect to
all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and, if it shall cease to be
eligible, shall, resign by giving written notice of resignation to the
applicable Trustee and to the Issuer. The Trustee for any series of
Securities may at any time terminate the agency of any Authenticating
Agent for such series by giving written notice of termination to such
Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section
7.14 with respect to one or more or all series of Securities, the
Trustee for such series shall upon Issuer Request appoint a successor
Authenticating Agent, and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series or any Coupons
appertaining thereto in the manner and to the extent provided in
Section 13.4. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein. The
Trustee for the Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall
<PAGE>
be entitled to be reimbursed for such payment subject to the
provisions of Section 7.6. The Authenticating Agent for the Securities
of any series shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee for such series.
ARTICLE EIGHT
Concerning the Holders of Securities
SECTION 8.1. Action by Holders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate
principal amount of the Securities of any series may take any action
(including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact
that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, or (b) by
the record of Holders voting in favor thereof at any meeting of such
Holders duly called and held in accordance with the provisions of
Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. The
Issuer may set a record date for purposes of determining the identity
of Holders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture, which record
date shall be the later of 10 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished
to the Trustee pursuant to Section 5.1 of this Indenture prior to such
solicitation. If a record date is fixed, those persons who were
Holders of Securities at such record date (or their duly designated
proxies), and only those persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously
given, whether or not such persons continue to be Holders after such
record date. No such vote or consent shall be valid or effective for
more than 120 days after such record date.
SECTION 8.2. Proof of Execution of Instruments by Holders of
Securities. Subject to Sections 7.1, 7.2 and 9.5, the execution of any
instrument by a Holder of a Security or of any Coupon or his agent or
proxy may be proved in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or
other officer authorized to take acknowledgments of deeds that the
person executing such instrument acknowledged to him the execution
thereof or by any affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is
by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership,
as the case may be, or by any other person acting in a representative
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The ownership of Registered Securities of any series shall
be proved by the Securities Register for such series or by a
certificate of the Securities Register for such series; the
<PAGE>
ownership of Unregistered Securities of any series and Coupons
shall be proved by proof of possession reasonably satisfactory
to the Trustee.
The record of any Holders' meeting shall be proved in the
manner provided in Section 9.6.
SECTION 8.3. Holders To Be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and
treat the Person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute
owner of such Security (notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.8), if such
registered Security is a Fully Registered Security, interest, if any,
on such Registered Security and for all other purposes whatsoever
whether or not such Security be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary. The Issuer, the Trustee and any agent of
the Issuer or the Trustee may treat the Holder of any Unregistered
Security and the Holder of any Coupon, whether or not the Security to
which such Coupon appertained be registered, as the absolute owner of
such Security or Coupon for the purposes of receiving payment thereof
or on account thereof and for all other purposes whatsoever whether or
not such Security or Coupon be overdue, and neither the Issuer, the
Trustee, any Paying Agent nor any Security Registrar shall be affected
by notice to the contrary. All such payments so made to any Holder for
the time being or upon his order shall be valid and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon such Security or Coupon.
SECTION 8.4. Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Securities of any or all series have
concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other obligor on the
Securities with respect to which such determination is being made or
by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee
knows are 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 Issuer or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer or any other obligor
on the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by
the Issuer to be
<PAGE>
owned or held by or for the account of any of the above-described
persons; and, subject to Sections 7.1 and 7.2, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such
determination.
SECTION 8.5. Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any action by the Holders of
the percentage in aggregate principal amount of the Securities of any
or all series, as the case may be, specified in this Indenture in
connection with such action, any Holder of a Security the number,
letter or other distinguishing symbol of which is shown by the
evidence to be included in the Securities the Holders of which have
consented to such action may by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as
aforesaid, any such action taken by the Holder of any Security shall
be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and any Coupon appertaining thereto and of
any Securities and Coupons issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security or Coupon or such other
Security or Coupon. Any action taken by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with
such action shall be conclusively binding upon the Issuer, the Trustee
and the Holders of all the Securities affected by such action.
ARTICLE NINE
Holders' Meetings
SECTION 9.1. Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article Nine for any
of the following purposes:
(1) to give any notice to the Issuer or to the Trustee for
the Securities of such series, to give any directions to the
Trustee for such series, to consent to the waiving of any default
hereunder and its consequences or to take any other action
authorized to be taken by Holders pursuant to any of the
provisions of Article Six;
(2) to remove the Trustee for such series and nominate a
successor trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 10.2; or
<PAGE>
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount
of the Securities of any one or more or all series, as the case
may be, under any other provision of this Indenture or under
applicable law.
SECTION 9.2. Call of Meetings by Trustee. The Trustee for
the Securities of any series may at any time call a meeting of Holders
of Securities of such series to take any action specified in Section
9.1, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or such other Place of Payment as the
Trustee for such series shall determine. Notice of every meeting of
the Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given to Holders of Securities of
such series in the manner and to the extent provided in Section 13.4.
Such notice shall be given not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
SECTION 9.3. Call of Meetings by Issuer or Holders. In case
at any time the Issuer, pursuant to a Board Resolution, or the Holders
of at least 10% in aggregate principal amount of the Outstanding
Securities of any or all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of
Securities of any or all series, as the case may be, by written
request setting forth in reasonable detail the action proposed to be
taken at the meeting and the Trustee for such series shall not have
given the notice of such meeting within 20 days after receipt of such
request, then the Issuer or such Holders may determine the time and
the place in the Borough of Manhattan or other Place of Payment for
such meeting and may call such meeting to take any action authorized
in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4. Qualifications for Voting. To be entitled to
vote at any meeting of Holders a person shall be (a) a Holder of one
or more Securities with respect to which such meeting is being held or
(b) a person appointed by an instrument in writing as proxy by such
Holder. The only persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the persons entitled to vote
at such meeting and their counsel and any representatives of the
Trustee for the Securities of the series with respect to which such
meeting is being held and its counsel and any representatives of the
Issuer and its counsel.
SECTION 9.5. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee for the Securities of any
series may make such reasonable regulations as it may deem advisable
for any meeting of Holders of the Securities of such series, in regard
to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Issuer or by Holders of the
<PAGE>
Securities of such series as provided in Section 9.3, in which case
the Issuer or the Holders calling the meeting as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to Section 8.4, at any meeting each Holder of
Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each 1,000 (in the currency
or currency unit in which such Securities are denominated) principal
amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in
respect of any such Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of
Securities of such series held by, him or instruments in writing
aforesaid duly designating him as the person to vote on behalf of
other Holders of such series. At any meeting of Holders, the presence
of persons holding or representing Securities with respect to which
such meeting is being held in an aggregate principal amount sufficient
to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a
quorum is present, the persons holding or representing a majority in
aggregate principal amount of such Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents
and purposes, as though a quorum had been present. Any meeting of
Holders of Securities with respect to which a meeting was duly called
pursuant to the provisions of Section 9.2 or Section 9.3 may be
adjourned from time to time by a majority of such Holders present,
whether or not constituting a quorum, and the meeting may be held as
so adjourned without further notice.
SECTION 9.6. Voting. The vote upon any resolution submitted
to any meeting of Holders of Securities with respect to which such
meeting is being held shall be by written ballots on which shall be
subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Securities held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.2. The
record shall show the serial numbers of the Securities voting in favor
of or against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and the secretary of the
meeting and one of the duplicates shall be delivered to the Issuer and
the other to the Trustee to be preserved by the Trustee.
<PAGE>
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 9.7. No Delay of Rights by Meeting. Nothing in this
Article Nine contained shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders under any of the
provisions of this Indenture or of the Securities of any series.
ARTICLE TEN
Supplemental Indentures
SECTION 10.1. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a Board Resolution,
and the Trustee for the Securities of any or all series may from time
to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of any or all series any
property or assets; provided, however, that such conveyance,
transfer, assignment, mortgage or pledge is consistent with the
provisions of Section 4.6 hereof;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Issuer under this Indenture and the
Securities;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection
of the Holders of any series of Securities and the Coupons, if
any, appertaining thereto, or to surrender any right or power
conferred upon the Issuer, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided
that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such
an Event of Default or may limit the remedies available to the
Trustee upon such an Event of Default or may limit the right of
the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
<PAGE>
(d) to add any additional Events of Default (and, if such
Events of Default are to be applicable to less than all series of
Securities, stating that such Events of Default are only
applicable to specified series);
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture; or to make
such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the
Board of Directors may deem necessary or desirable and which
shall not materially and adversely affect the interests of the
Holders of any Securities or the Coupons, if any, appertaining
thereto;
(f) to establish the form or terms of Securities of any
series and the Coupons, if any, appertaining thereto as permitted
by Section 3.1;
(g) to permit payment in the United States of principal,
premium or interest on Unregistered Securities or of interest on
Coupon Securities;
(h) to provide for the issuance of uncertificated Securities
of one or more series in addition to or in place of certificated
Securities;
(i) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series or 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
7.11; and
(j) to change or eliminate any of the provisions of this
Indenture; provided, however, that any such change or elimination
may only be effected when no Outstanding Security of any series
created prior to the execution of such supplemental indenture is
entitled to the benefit of such provision.
The Trustee with respect to any series of Securities
affected by such supplemental indenture is hereby authorized to join
with the Issuer in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations which may
be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but the
Trustee 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.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any
of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 10.2.
<PAGE>
SECTION 10.2. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Article
Eight) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all
series affected by such supplemental indenture (voting as one class),
the Issuer, when authorized by a Board Resolution, and the Trustee for
the Securities of each such series may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force
at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of
each such series; provided that no such supplemental indenture shall
(a) change the Stated Maturity of any Security of such series, reduce
the principal amount thereof, reduce the rate or change the time of
payment of interest thereon, reduce any amount payable on redemption
thereof, reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration
of the maturity thereof pursuant to Section 6.1 or the amount thereof
provable in bankruptcy pursuant to Section 6.2, adversely impair or
affect the right of repayment or repurchase, if any, at the option of
the Holder, reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or analogous provisions for any
Security, or change any Place of Payment or the coin or currency or
currency unit in which any Security or the interest thereon is payable
or change or eliminate the right of a Securityholder to institute suit
for the payment thereof, without the consent of the Holder of each
Security of such series so affected, or (b) reduce the aforesaid
percentage of Securities of such series, the consent of the Holders of
which is required for any such supplemental indenture (or waiver of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences), without the consent of the
Holder of each Security so affected, or (c) modify any of the
provisions of this Section 10.2 or Section 6.10, 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.
Upon the request of the Issuer, accompanied by a Board
Resolution, authorizing the execution of any such supplemental
indenture and upon the filing with the Trustee with respect to any
series of Securities affected by such supplemental indenture, of
evidence of the consent of Securityholders as aforesaid and other
documents, if any, required by Section 8.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
<PAGE>
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 and the Coupons, if any, appertaining thereto, or which
modifies the rights of the Holders of Securities of such series or any
Coupons appertaining thereto 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 or any
Coupons appertaining thereto.
For purposes of this Section 10.2, if the Securities of any
series are issuable upon the exercise of warrants, each holder of an
unexercised and unexpired warrant with respect to such series shall be
deemed to be a Holder of Outstanding Securities of such series in the
amount issuable upon the exercise of such warrant. For such purposes,
the ownership of any such warrant shall be determined by the Issuer in
a manner consistent with customary commercial practices. The Trustee
for such series shall be entitled to rely on an Officers' Certificate
as to the principal amount of Securities of such series in respect of
which consents shall have been executed by holders of such warrants.
SECTION 10.3. Notice of Supplemental Indenture. Promptly
after the execution by the Issuer and the Trustee of any supplemental
indenture pursuant to the provisions of Section 10.2, the Issuer shall
mail a notice thereof by first-class mail to the Holders of Securities
of each series and of Coupons, if any, appertaining thereto affected
thereby at their addresses as they shall appear on the registry books
of the Issuer, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to mail such notice,
or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 10.4. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions of
this Article Ten, this Indenture shall be and be deemed to be modified
and amended in accordance therewith, but only with regard to the
Securities of each series affected by such supplemental indenture, and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee for the Securities of
such series, the Issuer and the Holders of any Securities of such
series or any Coupons appertaining thereto affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes with regard to the Securities of such series and
any Coupons appertaining thereto.
SECTION 10.5. Documents To Be Given to Trustee. The Trustee,
subject to the provisions of Sections 7.1 and 7.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article
complies with the applicable provisions of this Indenture.
<PAGE>
SECTION 10.6. Notation on Securities and Coupons in Respect
of Supplemental Indentures. Securities of any series (including any
Coupons appertaining thereto) affected by any supplemental indenture
which are authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article Ten
may bear a notation in form approved by the Trustee for such series as
to any matter provided for in such supplemental indenture. If the
Issuer or the Trustee shall so determine, new Securities of any series
and any Coupons appertaining thereto so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this
Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series and any Coupons appertaining thereto
then Outstanding.
SECTION 10.7. Issuance of Securities by Successor
Corporation. In case the Issuer shall be consolidated with or merged
into any other corporation or corporations, or shall convey or
transfer all or substantially all its property as an entirety, the
successor corporation formed by such consolidation or into which the
Issuer shall have been merged or which shall have received a
conveyance or transfer as aforesaid, upon causing to be executed and
delivered the supplemental indenture referred to in Section 10.1(b),
shall succeed to and be substituted for the Issuer with the same
effect as if it had been named herein as the party of the first part
and in all the Securities and the Coupons, if any, appertaining
thereto as obligor, and thereupon and thereafter such successor
corporation may cause to be executed, either in its own name or in the
name of ITT Corporation, and delivered to the appropriate Trustee for
authentication, any or all of the Securities and the Coupons, if any,
appertaining thereto issuable hereunder; and, upon the order of such
successor corporation in lieu of the Issuer, and subject to all the
terms, conditions and restrictions in this Indenture prescribed, the
Trustee for the Securities of the appropriate series shall
authenticate and deliver any Securities of such series and the
Coupons, if any, appertaining thereto which shall have been previously
executed and delivered by the Issuer to the Trustee for authentication
and any Securities and the Coupons, if any, appertaining thereto which
such successor corporation shall thereafter, in accordance with the
provisions of this Indenture, cause to be executed and delivered to
the Trustee for such purpose. Such change in phraseology and form (but
not in substance) may be made in such Securities and the Coupons, if
any, appertaining thereto as may be appropriate in view of such
consolidation or merger or conveyance or transfer. All such Securities
and the Coupons, if any, appertaining thereto when issued by such
successor corporation shall in all respects have the same legal rank
as the Securities and the Coupons, if any, appertaining thereto
theretofore or thereafter authenticated and delivered in accordance
with the terms of this Indenture and issued, as though all of such
Securities and Coupons, if any, appertaining thereto had been issued
at the date of the execution hereof.
<PAGE>
ARTICLE ELEVEN
Consolidation, Merger, Sale or Assumption
SECTION 11.1. Issuer May Consolidate, Merge or Sell on
Certain Terms. Nothing contained in this Indenture or in any of the
Securities shall be deemed to prevent the consolidation or merger of
the Issuer with or into any other corporation, or the merger into the
Issuer of any other corporation, or the sale by the Issuer of its
property and assets as, or substantially as, an entirety, or
otherwise; provided, however, that (a) in case of any such
consolidation or merger the corporation resulting from such
consolidation or any corporation other than the Issuer into which such
merger shall be made shall succeed to and be substituted for the
Issuer with the same effect as if it has been named herein as a party
hereto and shall become liable and be bound for, and shall expressly
assume, by a supplemental indenture hereto, executed and delivered to
the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest, if any, on all the Securities of each
series and the Coupons, if any, appertaining thereto and the
performance and observance of each and every covenant and condition of
this Indenture on the part of the Issuer to be performed or observed,
and (b) as a condition of any such sale of the property and assets of
the Issuer as, or substantially as, an entirety, the corporation to
which such property and assets shall be sold shall (i) expressly
assume, as a part of the purchase price thereof, the due and punctual
payment of the principal of, premium, if any, and interest, if any, on
all the Securities of each series and the Coupons, if any,
appertaining thereto and the performance and observance of all the
covenants and conditions of this Indenture on the part of the Issuer
to be performed or observed and (ii) simultaneously with the delivery
to it of the conveyances or instruments of transfer of such property
and assets, execute and deliver to the Trustee a supplemental
indenture thereto, in form satisfactory to the Trustee, whereby such
purchasing corporation shall so assume the due and punctual payment of
the principal of, premium, if any, and interest, if any, on all the
Securities of each series and the Coupons, if any, appertaining
thereto and the performance and observance of each and every covenant
and condition of this Indenture on the part of the Issuer to be
performed or observed, to the same extent that the Issuer is bound and
liable.
The Issuer will not consolidate with any other corporation
or accept a merger of any other corporation into the Issuer or permit
the Issuer to be merged into any other corporation, or sell its
properties and assets as, or substantially as, an entirety, except
upon the terms and conditions set forth in this Section. Upon any
consolidation or merger, or any sale of the properties and assets of
the Issuer as, or substantially as, an entirety in accordance with the
provisions of this Section, the corporation formed by such
consolidation or into which the Issuer shall have been merged or to
which such sale shall have been made shall succeed to and be
substituted for the Issuer with the same effect as if it had been
named herein as a party hereto and thereafter from time to time such
successor corporation may exercise each and every right and power of
the Issuer under this Indenture, in the name of the Issuer or in its
own name; and any act or proceeding by any provision of this Indenture
required or permitted to be done by the Board of Directors or any
officer of the Issuer may
<PAGE>
be done with like force and effect by the like board or officer of any
corporation that shall at the time be the successor of the Issuer
hereunder. In the event of the sale by the Issuer of its properties
and assets as, or substantially as, an entirety upon the terms and
conditions of this Section, the Issuer shall be released from all its
liabilities and obligations hereunder and under the Securities.
SECTION 11.2. Opinion of Counsel To Be Given to Trustee. The
Trustee, subject to the provisions of Section 7.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger or sale, and any such assumption, complies with the provisions
of this Article Eleven.
ARTICLE TWELVE
Satisfaction and Discharge of
Indenture; Unclaimed Moneys
SECTION 12.1. Satisfaction and Discharge of Securities of
Any Series. Except as otherwise provided for the Securities of any
series established pursuant to Section 3.1(18), the Issuer shall be
deemed to have satisfied and discharged the entire indebtedness on all
the Outstanding Securities of any particular series and the Coupons,
if any, appertaining thereto, and the Trustee, at the expense of the
Issuer and upon Issuer Request, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(a) either:
(i) all Outstanding Securities of such series theretofore
authenticated and delivered and the Coupons, if any appertaining
thereto (other than (a) any Securities of such series or Coupons
which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.7 and (b) Outstanding
Securities of such series or Coupons for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Sections 4.4, 12.4 and
12.5) have been delivered to the Trustee for cancellation; or
(ii) with respect to all Outstanding Securities of such
series and the Coupons, if any, appertaining thereto, described
in (i) above not theretofore delivered to the Trustee for
cancellation:
A. the Issuer has deposited or caused to be deposited
with the Trustee as trust funds in trust an amount in the
currency or currency unit in which the Securities of such
series are denominated (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series
and except as provided in Sections 3.12(b), 3.12(e) and
3.12(f) hereof) sufficient to pay and discharge the
<PAGE>
entire indebtedness on all such Outstanding Securities of
such series for principal (and premium, if any) and interest
to the Stated Maturity or any Redemption Date as
contemplated by Section 12.3, as the case may be; or
B. the Issuer has deposited or caused to be deposited
with the Trustee as obligations in trust such amount of
Government Obligations as will, in a written opinion of
independent public accountants delivered to the Trustee,
together with the predetermined and certain income to accrue
thereon (without consideration of any reinvestment thereof),
be sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such
series and the Coupons, if any, appertaining thereto, for
unpaid principal (and premium, if any) and interest to the
Stated Maturity or any Redemption Date as contemplated by
Section 12.3, as the case may be.
(b) the Issuer has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities of such series and
the Coupons, if any, appertaining thereto;
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to due satisfaction
and discharge of the entire indebtedness on all Outstanding Securities
of any such series and the Coupons, if any, appertaining thereto, have
been complied with; and
(d) if the Securities of such series and, the Coupons, if
any, appertaining thereto, are not to become due and payable at their
Stated Maturity within one year of the date of such deposit or are not
to be called for redemption within one year of the date of such
deposit under arrangements satisfactory to the Trustee as of the date
of such deposit, then the Issuer shall have given, not later than the
date of such deposit, notice of such deposit to the Holders of the
Securities of such series and the Coupons, if any, appertaining
thereto.
Upon the satisfaction of the conditions set forth in this
Section 12.1 with respect to all the Outstanding Securities of any
series and the Coupons, if any, appertaining thereto, the terms and
conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be
binding upon, or applicable to, the Issuer, and the Holders of the
Securities of such series shall look for payment only to the funds or
obligations deposited with the Trustee pursuant to Section
12.1(a)(ii); provided, however, that the Issuer shall not be
discharged from (a) any payment obligations in respect of Securities
of such series which are deemed not to be Outstanding under clause (c)
of the definition thereof and the Coupons, if any, appertaining
thereto, if such obligations continue to be valid obligations of the
Issuer under applicable law, (b) any obligations under Sections 7.6
and 7.10, and (c) any obligations under Section 3.6 or 3.7 (except
that Securities of such series issued upon registration of transfer or
exchange or Securities or Coupons, if any, appertaining thereto issued
in lieu of mutilated, lost, destroyed or stolen Securities or Coupons
shall not be obligations of the Issuer) and Section 5.1; and provided,
further, that in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a
<PAGE>
successor statute is filed with respect to the Issuer within 91 days
after the deposit, the entire indebtedness on all Securities of such
series and the Coupons, if any, appertaining thereto shall not be
discharged, and in such event the Trustee shall return such deposited
funds or obligations as it is then holding to the Issuer upon Issuer
Request. Notwithstanding the satisfaction of the conditions set forth
in this Section 12.1 with respect to all the Securities of any series
not denominated in Dollars, upon the happening of any events specified
in Section 3.12(e) the Issuer shall be obligated to make the payments
in Dollars required by Section 3.12(e) to the extent that the Trustee
is unable to convert any Foreign Currency or currency unit in its
possession pursuant to Section 12.1(a)(ii) into the Dollar Equivalent
of the Foreign Currency or the Dollar Equivalent of the Currency Unit,
as the case may be. The Trustee shall return to the Issuer any
nonconverted funds or securities in its possession after such payments
have been made.
SECTION 12.2. Satisfaction and Discharge of Indenture. Upon
compliance by the Issuer with the provisions of Section 12.1 as to the
satisfaction and discharge of each series of Securities issued
hereunder and the Coupons, if any, appertaining thereto, and if the
Issuer has paid or caused to be paid all other sums payable under this
Indenture, this Indenture shall cease to be of any further effect
(except as otherwise provided herein). Upon Issuer Request and receipt
of an Opinion of Counsel and an Officers' Certificate (and at the
expense of the Issuer), the Trustee shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Issuer under Sections 3.6. 3.7, 5.1,
7.6 and 7.10, any obligations of the Issuer under Section 3.12(d) to
deliver an Exchange Rate Officer's Certificate and the obligations of
the Trustee under Section 12.3 shall survive.
SECTION 12.3. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section 12.1 shall
be held irrevocably in trust and shall be made under the terms of an
escrow trust agreement in form and substance satisfactory to the
Trustee. Such money and obligations shall be applied by the Trustee,
in accordance with the provisions of the Securities, this Indenture
and such escrow trust agreement, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal of (and premium, if any) and interest, if
any, on the Securities and the Coupons, if any, appertaining thereto
for the payment of which such money and obligations have been
deposited with the Trustee. If Securities of any series are to be
redeemed prior to their Stated Maturity, whether pursuant to an
optional redemption provision or in accordance with any mandatory
sinking fund requirement, the Issuer shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Issuer.
SECTION 12.4. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series and the
<PAGE>
Coupons, if any, appertaining thereto, all moneys with respect to such
series then held by any Paying Agent for such series under the
provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the
Trustee and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
SECTION 12.5. Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to
the Trustee for the Securities of any series and the Coupons, if any,
appertaining thereto, or any Paying Agent for the payment of the
principal of, premium, if any, or interest, if any, on Securities of
any series and the Coupons, if any, appertaining thereto and which
shall not be applied but shall remain unclaimed by the Holders of
Securities of such series and the Coupons, if any, appertaining
thereto for two years after the date upon which such payment shall
have become due and payable, shall be repaid to the Issuer by the
Trustee on demand, and the holder of any of such Securities or the
Coupons, if any, appertaining thereto entitled to receive such payment
shall thereafter look only to the Issuer for the payment thereof;
provided, however, that the Trustee, before making any such repayment,
shall at the expense of the Issuer cause to be published once a week
for two successive weeks (in each case on any day of the week) in an
Authorized Newspaper, a notice that said moneys have not been so
applied and that after a date named therein any unclaimed balance of
said moneys then remaining will be returned to the Issuer.
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse
under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security or Coupon, or because of any
indebtedness evidenced thereby, shall be had against any incorporator,
as such, or against any past, present or future stockholder, officer
or director, as such, of the Issuer or of any successor, either
directly, or through the Issuer or any successor, under any rule of
law, statute or constitutional provision by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance
of the Securities or Coupons by the Holders thereof and as part of the
consideration for the issue of such Securities and Coupons, if any,
appertaining thereto.
SECTION 13.2. Provisions of Indenture for the Sole Benefit
of Parties and Securityholders. Nothing in this Indenture or in the
Securities or the Coupons, expressed or implied, shall give or be
construed to give to any person, other than the parties hereto and
their successors, the Holders of the Securities and the Holders of the
Coupons, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision
<PAGE>
herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors, of the Holders of
the Securities and the Holders of the Coupons.
SECTION 13.3. Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.4. Notices to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, (a) if any of
the Securities affected by such event are Fully Registered Securities,
such notice shall be sufficient]y given (unless otherwise herein
expressly provided) if in writing and mailed by first class mail,
postage prepaid, to such Holders as their names and addresses appear
in the Securities Register within the time prescribed and (b) if any
of the Securities affected by such event are Unregistered Securities,
or Coupon Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed by first
class mail, postage prepaid, to such Holders in the manner and to the
extent provided in Section 5.4, and if published in an Authorized
Newspaper or Newspapers in such city or cities as may be provided
elsewhere in this Indenture or specified as contemplated by Section
3.1 on a Business Day at least twice, the first such publication to be
not earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice. 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 on such waiver. 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 sufficiency of such notice with respect to other Holders,
and any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. In the event of
suspension of regular mail service or for any other reason it shall be
impracticable to give such notice to Registered Holders by mail, then
such a notification as shall be made to Registered Holders with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. In case by reason of the suspension of
publication of any Authorized Newspaper or by reason of any other
cause it shall be impracticable to publish any notice to Holders of
Unregistered Securities or of Coupons as provided above then said
notification to Holders of Unregistered Securities or of Coupons as
shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder.
SECTION 13.5. Addresses for Notices. Any notice or demand
which by any provision of this Indenture is required or permitted to
be given or served by the Trustee for the Securities of any series or
by the Holders of Securities of any series or of any Coupons
appertaining thereto on the Issuer may be given or served by
registered mail addressed (until another address is filed by the
Issuer with the Trustee) as follows: ITT CORPORATION, Attention of
Corporate Secretary, 1330 Avenue of the Americas, New York, NY
<PAGE>
10019-5490. Any notice, direction, request or demand by any
Holder of Securities of any series to or upon the Trustee for
such series or of any Coupons appertaining thereto shall be
deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office of such Trustee,
and, in respect of Unregistered Securities or Coupons, at the
Corporate Trust Office of the Trustee referred to in
Section 4.2. Any notice or demand required or permitted under this
Indenture shall be in the English language, except that any
published notice may be in the official language of the country
of publication.
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements To Be Contained Therein. Upon any application or
demand by the Issuer to the Trustee to take any action under any of
the provisions of this Indenture, the Issuer shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants compliance with which constitutes a condition
precedent) 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
(including any covenants compliance with which constitutes a condition
precedent) have been complied with, except that in the case of any
such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (other than
annual certificates provided pursuant to Section 4.7 shall include (a)
a statement that the person making such certificate or opinion has
read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or
not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such
officer knows that the certificate or opinion or representations with
respect to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as
it relates to factual matters, information with respect to which is in
the possession of the Issuer, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer
unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the
same are erroneous.
<PAGE>
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Issuer unless
such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 13.7. Cross References. All references herein to
"Articles" and other subdivisions are to the corresponding Articles or
other subdivisions of this Indenture, and the words "herein",
"hereof", "hereby", "hereunder", "hereinbefore" and "hereinafter" and
other words of similar import refer to this Indenture generally and
not to any particular Article, Section or other subdivision hereof.
SECTION 13.8. Legal Holidays. In any case where the date of
maturity of principal, premium, if any, or interest, if any, on the
Securities or Coupons or the date fixed for redemption or repayment of
any Security shall not be a Business Day at any Place of Payment with
respect to Securities of that series then (notwithstanding any other
provisions of this Indenture or of the Security of Coupons) payment of
such principal, premium, if any, or interest, if any, on the
Securities and Coupons need not be made on such date at such Place of
Payment 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 date
of maturity or the date fixed for redemption or repayment, as the case
may be, and no interest shall accrue for the period from and after
such date.
SECTION 13.9. Moneys of Different Currencies To Be
Segregated. The Trustee shall segregate all moneys, funds and accounts
held by the Trustee hereunder in one currency from any money, funds or
accounts in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
SECTION 13.10. Payment To Be in Proper Currency. Each
reference in any Security, or in the Board Resolution relating
thereto, to any currencies or currency units shall be of the essence.
Subject to Section 3.12, the Issuer agrees, to the fullest extent that
it may effectively do so under applicable law, that its obligation to
make any payment of principal of (and premium, if any) and interest on
any Security or any Coupon (i) shall not be discharged or satisfied by
any tender by the Issuer, or recovery by the Trustee, either pursuant
to any judgment (whether or not entered into in accordance with
Section 6.13) or otherwise, in any currencies or currency units other
than the currencies or currency units then due and payable (the
"Required Currency"), except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full
amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an
<PAGE>
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.
Except as permitted under Section 3.12, if any such tender or recovery
is in a currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any such
exchange, including without limitation the risks of delay and exchange
rate fluctuation, shall be borne by the Issuer, and the Issuer shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor. The Issuer hereby
waives any defense of payment based upon any such tender or recovery
which is not in the Required Currency, or which, when exchanged for
the Required Currency by the Trustee, is less than the full amount of
Required Currency then due and payable.
SECTION 13.11. Conflict of Any Provision of Indenture with
Trust Indenture Act. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 13.12. New York Law To Govern. This Indenture and
each Security shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in
accordance with the laws of said State, except as may otherwise be
required by mandatory provisions of law.
SECTION 13.13. Counterparts. This 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.
SECTION 13.14. 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.
SECTION 13.15. Separability Clause. In case any provision of
this Indenture or of the Securities or any Coupons appertaining
thereto, if any, 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.
ARTICLE FOURTEEN
Redemption of Securities
SECTION 14.1. Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to
<PAGE>
any sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 3.1 for Securities
of such series.
SECTION 14.2. Notice of Redemption; Selection of Securities.
In case the Issuer shall desire to exercise the right to redeem all
or, as the case may be, any part of the Securities of any series (or
all or part of the Unregistered Securities of such series or all or
any part of the Registered Securities of such series, if the terms and
conditions of redemption shall be different with respect to
Unregistered Securities and Registered Securities of such series as
specified in the terms of such Securities established pursuant to
Section 3.1) in accordance with their terms, it shall fix a Redemption
Date and shall provide notice of such redemption to the Trustee, in
the case such Securities are to be redeemed as a whole, 45 days, and,
in the case such Securities are to be redeemed in part, 60 days, prior
to such Redemption Date, and at least 30 and not more than 60 days
prior to such Redemption Date to the Holders of Securities of such
series so to be redeemed as a whole or in part in the manner provided
in Section 13.4. The notice provided in the manner herein specified
shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, failure to give such
notice or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the Place or Places of Payment, that the
Securities of such series are being redeemed at the option of the
Issuer pursuant to provisions contained in the terms of the Securities
of such series or in a supplemental indenture establishing such
series, if such be the case, together with a brief statement of the
facts permitting such redemption, that payment will be made upon
presentation and surrender of the applicable Securities, that, unless
otherwise specified in such notice, Coupon Securities of any series,
if any, surrendered for payment must be accompanied by all Coupons, if
any, maturing subsequent to the date fixed for redemption, failing
which the amount of any such missing Coupon or Coupons will be
deducted from the sum due for payment, that any interest accrued to
the Redemption Date will be paid as specified in said notice and that
on and after said Redemption Date any interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all
the Securities of any series are to be redeemed, the notice of
redemption shall specify the numbers of the Securities of such series
to be redeemed and, if only Unregistered Securities of any series are
to be redeemed and if such Unregistered Securities may be exchanged
for Registered Securities, the last date on which exchanges of
Unregistered Securities for Registered Securities not subject to
redemption may be made. In case any Security of any series is to be
redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state
that on and after the Redemption Date, upon surrender of such Security
and any Coupons appertaining thereto, a new Security or Securities of
such series in principal amount equal to the unredeemed portion
thereof and with appropriate Coupons will be issued or, in the case of
Securities providing appropriate space for such notation, at the
option of the Holders, the Trustee, in lieu of delivering a new
<PAGE>
Security or Securities as aforesaid, may make a notation on such
Security of the payment of the redeemed portion thereof.
On or before (but at least one Business Day in the City of
New York before, in the case of payments made in a currency or
currency unit other than Dollars) the Redemption Date with respect to
the Securities of any series stated in the notice of redemption given
as provided in this Section 14.2, the Issuer will deposit with the
Trustee or with one or more Paying Agents an amount of money in the
currency or currency unit in which the Securities of such series and
any Coupons appertaining thereto are payable (except as otherwise
specified as contemplated by Section 3.1 for the Securities of such
series and except as provided in Sections 3.12(b), 3.12(e) and 3.12(f)
of this Indenture) sufficient to redeem on such Redemption Date all
the Securities or portions thereof so called for redemption at the
applicable Redemption Price, together with accrued interest to such
Redemption Date. If the Issuer is acting as its own Paying Agent, it
will segregate such amount and hold it in trust as provided in Section
4.4.
If fewer than all the Securities of a series are to be
redeemed (except in the case of a redemption in whole of the
Unregistered Securities, the Coupon Securities, the Registered
Securities or the Fully Registered Securities of such series), the
Issuer will give the Trustee written notice not less than 60 days
prior to the Redemption Date as to the aggregate principal amount of
Securities to be redeemed and the Trustee shall select, not more than
75 days prior to the Redemption Date and in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities of such
series or portions thereof (in multiples of 1,000 in the currency or
currency unit in which the Securities of such series are denominated,
except as otherwise set forth in the applicable form of Security) to
be redeemed.
SECTION 14.3. Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities of the series specified in such
notice shall become due and payable on the Redemption Date and at the
place or places stated in such notice at the applicable Redemption
Price, together with any interest accrued to such Redemption Date, and
on and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the applicable Redemption Price,
together with any interest accrued to said Redemption Date) any
interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue. On presentation and
surrender of such Securities and all Coupons, if any, appertaining
thereto at a Place of Payment in such notice specified, such
Securities and Coupons or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable Redemption Price,
together with any interest accrued thereon to the applicable
Redemption Date, in the currency or currency unit in which the
Securities of such series and the Coupons, if any, appertaining
thereto are payable (except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series and except as provided
in Sections 3.12(b), 3.12(e) and 3.12(f) of this Indenture).
<PAGE>
If any Coupon Security surrendered for redemption shall not
be accompanied by all appurtenant Coupons maturing on or after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing Coupons or the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to them
such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing Coupon
in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that, unless otherwise provided
pursuant to Section 3.1 or Section 10.1(f), interest represented by
Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside the United States.
Upon presentation of any Security redeemed in part only and
the Coupons, if any, appertaining thereto, the Issuer shall execute
and the Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series and the Coupons, if any, appertaining
thereto, of authorized denominations, in principal amount equal to the
unredeemed portion of the Securities so presented.
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded
from eligibility for selection for redemption if they are identified
by registration or certificate number, in the case of Registered
Securities or Fully Registered Securities, or by certificate number,
in the case of Coupon Securities, in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least
40 days prior to the last date on which notice of redemption may be
given as being owned by, and not pledged or hypothecated by, either
(a) the Issuer or (b) an entity specifically identified in such
written statement directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer. In the
case of Coupon Securities, the Issuer will provide evidence
satisfactory to the Trustee of the ownership thereof.
SECTION 14.5. Redemption Pursuant to Gaming Laws. (a)
Notwithstanding the provisions of Section 14.2 hereof and any related
paragraphs of the Securities of any series, if any Gaming Authority
requires that a Holder or beneficial owner of Securities of any series
must be licensed or found qualified or suitable to hold or own the
Securities of any such series, but that Person is not licensed or
found qualified or suitable within any time specified by such Gaming
Authority, or such Gaming Authority denies a license to or finds
unqualified or unsuitable such Person, the Issuer will have the right
at its option to require such Person to dispose of such Person's
Securities of such series within the time period prescribed by the
Issuer or such other time period as may be prescribed by any Gaming
Authority, which time period shall be specified in a written notice
from the Issuer. If such Holder or beneficial owner, having been given
the opportunity by the Issuer to dispose of such Securities, fails to
dispose of such Securities within the prescribed time period, the
<PAGE>
Issuer shall have the right to call for redemption such Securities by
notice of redemption to such Person.
(b) On any redemption of Securities of any series pursuant
to this Section 14.5, the Redemption Price shall be the lesser of (i)
the lowest closing sale price of the Securities of such series on any
trading day during the 120-day period commencing on the date upon
which the Issuer shall have received notice from a Gaming Authority of
such Holder's disqualification or (ii) the price at which such Holder
or beneficial owner acquired the Securities, unless a different
redemption price is required by such Gaming Authority, in which event
such required price shall be the Redemption Price. Each Holder and
beneficial owner, by accepting a Security of any series, agrees to the
provisions of this Section 14.5 and any related paragraphs of the
Securities of such series and agrees to inform the Issuer upon request
of the price at which such Holder or beneficial owner acquired such
Holder's or beneficial owner's Securities.
(c) Any redemption notice given by the Issuer under this
Section 14.5 shall state (i) that the Securities are being called for
redemption as a result of the Holder's or beneficial owner's status
under the relevant Gaming Laws, (ii) the Redemption Date, (iii) the
Redemption Price and (iv) the place or places where such Securities
are to be surrendered for payment of the Redemption Price.
ARTICLE FIFTEEN
Sinking Funds
SECTION 15.1. 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 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is hereinafter referred to as
a "mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of the Securities of any
series is herein referred to as an "optional sinking fund payment".
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payments with Securities. In lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a
series in cash, the Issuer may, at its option, at any time no more
than 16 months and no less than 45 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Outstanding
Securities of such series (together with the unmatured Coupons, if
any, appertaining thereto) theretofore purchased or otherwise acquired
by the Issuer, except Securities of such series which have been
redeemed or previously called for redemption through the application
of mandatory or optional sinking fund payments pursuant to the terms
of the Securities of such series or which have been acquired or
redeemed out of
<PAGE>
the proceeds of sale of a Principal Property, pursuant to clause (i)
of Section 4.5, accompanied by an Issuer Order instructing the Trustee
to credit such obligations and stating that the Securities of such
series were originally issued by the Issuer by way of bona fide sale
or other negotiation for value; 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 mandatory sinking fund payment
shall be reduced accordingly.
SECTION 15.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any
series of Securities, the Issuer will deliver to the Trustee a
certificate signed by the Treasurer or any Associate or Assistant
Treasurer of the Issuer specifying the amount of the next ensuing
sinking fund payment for such series pursuant to the terms of such
series, the portion thereof, if any, which is to be satisfied by
payment of cash in the currency or currency unit in which the
Securities of such series and the Coupons, if any, appertaining
thereto are payable (except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series and except as provided
in Sections 3.12(b), 3.12(e) and 3.12(f) of this Indenture) and the
portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of such series pursuant to Section 15.2 and
whether the Issuer intends to exercise its right to make a permitted
optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Issuer
shall be obligated to make the cash payment or payments (in the
currency or currency unit described above) therein referred to, if
any, on or before the next succeeding sinking fund payment date. In
the case of the failure of the Issuer to deliver such certificate (or
to deliver the Securities and Coupons, if any, specified in such
certificate within the time period specified in Section 15.2), the
sinking fund payment due on the next succeeding sinking fund payment
date for such series shall be paid entirely in cash (in the currency
or currency unit described above) and shall be sufficient to redeem
the principal amount of the Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit
Securities as provided in Section 15.2 and without the right to make
any optional sinking fund payment, if any, with respect to such
series.
Any sinking fund payment or payments (mandatory or optional)
made in cash (in the currency or currency unit described above) plus
any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by
the Trustee (or by the Issuer if the Issuer is acting as its own
Paying Agent) on the sinking fund payment date on which such payment
is made (or, if such payment is made before a sinking fund payment
date, on the sinking fund payment date following the date of such
payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the
sinking fund, together with accrued interest, if any, to the
applicable Redemption Date. Any excess sinking fund moneys not so
applied or allocated by the Trustee (or by the Issuer if the Issuer is
acting as its own Paying Agent) to the redemption of Securities shall
be added to the next sinking fund payment received by the Trustee (or,
if the Issuer is acting as its own Paying Agent, segregated and held
in trust as
<PAGE>
provided in Section 4.4) for such series and, together with such
payment (or such amount so segregated), shall be applied in accordance
with the provisions of this Section 15.3. Any and all sinking fund
moneys with respect to the Securities of any particular series held by
the Trustee (or, if the Issuer is acting as its own Paying Agent,
segregated and held in trust as provided in Section 4.4) on the last
sinking fund payment date with respect to Securities of such series
and not held for the payment or redemption of particular Securities of
such series shall be applied by the Trustee (or by the Issuer if the
Issuer is acting as its own Paying Agent), together with other moneys,
if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such
series at Maturity. The Trustee shall not convert any currency or
currency unit in which the Securities of such series are payable for
the purposes of such sinking fund application unless specifically
requested to do so by the Issuer, and any such conversion agreed to by
the Trustee in response to such request shall be for the account and
at the expense of the Issuer and shall not affect the Issuer's
obligation to pay the Holders in the currency or currency unit to
which such Holders may be entitled.
The Trustee shall select or cause to be selected the
Securities to be redeemed upon such sinking fund payment date in the
manner specified in the last paragraph of Section 14.2, and the Issuer
shall cause notice of the redemption thereof to be given in the manner
provided in Section 14.2, except that the notice of redemption shall
also state that the Securities are being redeemed by operation of the
sinking fund and whether the sinking fund payment is mandatory or
optional, or both, as the case may be. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 14.3.
On or before (but at least one New York Business Day before,
in the case of payments made in a currency or currency unit other than
Dollars) each sinking fund payment date, the Issuer shall pay to the
Trustee (or, if the Issuer is acting as its own Paying Agent, will
segregate and hold in trust as provided in Section 4.4) in cash (in
the currency or currency unit described in the first paragraph of this
Section 15.3) a sum equal to the principal and any interest accrued to
the Redemption Date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Issuer shall redeem any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking
fund for such series during the continuance of a default in payment of
interest, if any, on any Securities of such series or of any Event of
Default (other than an Event of Default occurring as a consequence of
this paragraph) with respect to the Securities of such series, except
that, if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Issuer if
the Issuer is acting as its own Paying Agent) shall redeem such
Securities if cash (in the currency or currency unit described in the
first paragraph of this Section 15.3) sufficient for the purpose shall
be deposited with the Trustee (or segregated by the Issuer) for that
purpose in accordance with the terms of this Article. Except as
aforesaid, any moneys (in the currency or currency unit described in
the
<PAGE>
first paragraph of this Section 15.3) in the sinking fund for such
series at the time when any such default or Event of Default shall
occur and any moneys (in the currency or currency unit described in
the first paragraph of this Section 15.3) thereafter paid into such
sinking fund shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Securities of such
series and the Coupons, if any, appertaining thereto; provided,
however, that, in case such Event of Default or default shall have
been cured or waived as provided herein, such moneys (in the currency
or currency unit described in the first paragraph of this Section
15.3) shall thereafter be applied on the next sinking fund payment
date for the Securities of such series on which such moneys (in the
currency or currency unit described in the first paragraph of this
Section 15.3) may be applied pursuant to the provisions of this
Section.
<PAGE>
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.
ITT CORPORATION (formerly known
as ITT Destinations, Inc.) as Issuer,
by
-----------------------
Vice President
[Seal]
Attest:
- -------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee,
by
-----------------------
Authorized Officer
[Seal]
Attest:
- -------------------------
Assistant Secretary
Exhibit 5
ITT Corporation
1330 Avenue of the Americas
New York, New York 10019-5490
November 15, 1996
ITT Corporation
1330 Avenue of the Americas
New York, NY 10019-5490
Dear Sirs:
I am Associate General Counsel and Assistant Secretary of
ITT Corporation, a Nevada Corporation (the "Company") and have acted
as counsel to the Company in connection with the offer and sale by the
Company of $250,000,000 aggregate principal amount of 6 3/4% Notes Due
November 15, 2003 (the "Notes").
In connection with the opinions expressed herein, I have
examined, and have relied as to matters of fact upon, the documents
delivered at the closing of the sale of the Notes, and upon originals
or copies, certified or otherwise identified to my satisfaction, of
such corporate records, agreements, documents and other instruments
and such certificates or comparable documents of public officials and
of officers and representatives of the Company, and have made such
other and further investigations, as I have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all
signatures (other than those of officers of the Company), the legal
capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified or photostatic copies, and
the authenticity of the originals of such latter documents.
Upon the basis of the foregoing, and subject to the
qualifications and limitations stated herein, I am of the opinion that
the Notes constitute valid and legally binding obligations of the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
<PAGE>
I am a member of the Bar of the State of New York and I do
not express any opinion herein concerning any law other than the law
of the State of New York. I hereby consent to the inclusion of this
opinion as an exhibit to the Company's Current Report on Form 8-K
dated November 15, 1996 and the Registration Statement on Form S-3
(File No. 33-63445).
Very truly yours,
/s/ Margaret M. Foran
Associate General Counsel and
Assistant Secretary
