As Filed with the Securities and Exchange Commission on November 13, 1996.
Registration No. 333-07221
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
To
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
ITT CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 88-0340591
(State of Incorporation) (I.R.S. Employer Identification No.)
1330 Avenue of the Americas
New York, NY 10019-5490
(212) 258-1000
(Address, including zip code and telephone number, of
Principal Executive Offices of registrant)
RICHARD S. WARD, Esq.
Executive Vice President,
General Counsel and Corporate Secretary, ITT Corporation
1330 Avenue of the Americas
New York, NY 10019-5490
(212) 258-1000
(Address, including zip code and telephone number,
of agent for service of registrant)
---------------------------
Copies to:
MARGARET M. FORAN, Esq. GEORGE W. BILICIC, JR., Esq.
Associate General Counsel Cravath, Swaine & Moore
and Assistant Secretary Worldwide Plaza
ITT Corporation 825 Eighth Avenue
1330 Avenue of the Americas New York, NY 10019-7475
New York, NY 10019-5490
---------------------------
Approximate date of commencement of proposed sale to the
public: As soon as possible following the effectiveness of this
registration statement.
<PAGE>
If the only securities being registered on this form are
being offered by dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this form will
be offered on a delayed or continuous basis under Rule 415, other than
securities offered only with dividend or interest reinvestment plans,
check the following box. [X]
If this form is filed to register additional securities for
an offering under Rule 462(b), please check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed under Rule
462(c), check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made under
Rule 434, please check the following box. [X]
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each class Amount offering aggregate Amount of
of securities to to be price per offering registration
be registered registered unit (1) price (2) fee
- ------------------- ---------- --------- --------- ------------
Debt Securities
(4)(9)
Preferred Stock
(5)(6)(9)
Depositary Shares
(6)(9)
Common Stock,
no par value (3) (3) (3) (3)
per share
(including
Preferred Share
Purchase Rights)
(7)(9)
Warrants(8)(9)
- ---------------------------------------------------------------------------
Total $565,541,250(9) 100% $565,541,250(9) $195,015(11)
(1) The proposed maximum offering price per unit will be
determined by us in connection with the issuance of
the securities.
(2) The proposed maximum aggregate offering price has been
estimated solely to calculate the registration fee under
Rule 457(o).
(3) Not applicable under General Instruction II.D. of Form S-3.
(4) Subject to note (10) below, we are registering an indeterminate
principal amount of Debt Securities. If any Debt Securities
are issued at an original issue discount, then the offering
price shall be in such greater principal amount as shall result
in an aggregate initial offering price not to exceed
$565,541,250 less the dollar amount of any securities previously
issued.
(5) Subject to note (10) below, we are registering an indeterminate
number of shares of Preferred Stock.
(6) Subject to note (10) below, we are registering an indeterminate
number of Depositary Shares to be evidenced by Depositary Receipts
issued under a Deposit Agreement. If we elect to offer fractional
interests in shares of Preferred Stock, Depositary Receipts will
be distributed for such fractional interests and the shares of
Preferred Stock will be issued to the depositary under the
Deposit Agreement.
(7) Subject to note (10) below, we are registering an indeterminate
number of shares of Common Stock. We are also registering an
indeterminate number of shares of Common Stock to be issued,
upon conversion or redemption of Preferred Stock or Debt
Securities. Includes associated Preferred Share Purchase
Rights (the "Rights"). Until the occurrence of certain
prescribed events, none of which has occurred, the Rights are
not exercisable, are evidenced by the certificates representing
the Common Stock, and will be transferred only with the Common
Stock.
<PAGE>
(8) Subject to note (10) below, we are registering an indeterminate
amount and number of Warrants, representing rights to purchase
Debt Securities, Preferred Stock or Common Stock.
(9) Subject to note (10) below, we are registering an indeterminate
number of shares of Debt Securities, Preferred Stock, Depositary
Shares and Common Stock, to be issued upon conversion or
redemption, or upon the exercise of Warrants, Debt Securities,
Preferred Stock or Depositary Shares.
(10) In no event will the aggregate initial offering price of all
securities issued exceed $565,541,250 or the equivalent in one
or more foreign currencies, foreign currency units, or
composite currencies. The aggregate amount of Common Stock
registered is further limited to that which is permissible
under Rule 415(a)(4) under the Securities Act. The registered
securities may be sold separately or as units with other
registered securities.
(11) Previously paid.
The Registrant amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this Registration Statement shall become effective according to
Section 8(a) of the Securities Act or until the Registration Statement
shall become effective on such date as the Commission, acting under
Section 8(a), may determine.
<PAGE>
ITT CORPORATION
By this prospectus, we may offer -
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
We will provide the
specific terms of these
securities in supplements
to this prospectus. You
should read this prospectus
and the supplements
carefully before you invest.
ITT Corporation
includes -
ITT Sheraton Corporation
Ciga, S.p.A.
Caesars World, Inc.
Madison Square Garden, L.P.
ITT Educational Services, Inc.
ITT World Directories, Inc.
These securities have not been approved by the --
SEC,
state securities commissions,
Nevada State Gaming Control Board,
New Jersey Casino Control Commission
Mississippi Gaming Commission, or the
Indiana Gaming Commission.
None of these organizations has determined that this prospectus is accurate
or complete. Any representation to the contrary is a criminal offense.
This prospectus is dated November , 1996.
<PAGE>
TABLE OF CONTENTS
Page
SUMMARY................................................ 4
WHERE YOU CAN FIND MORE INFORMATION.................... 8
THE COMPANY............................................ 9
PROSPECTUS SUPPLEMENT.................................. 10
USE OF PROCEEDS........................................ 10
RATIO OF EARNINGS TO TOTAL FIXED CHARGES .............. 10
DESCRIPTION OF DEBT SECURITIES......................... 10
General................................. 10
Subordination........................... 11
Conversion.............................. 11
Certain Restrictive Covenants........... 12
Consolidation, Merger or Sale........... 14
Redemption Pursuant to Gaming Laws...... 14
Modification of Indenture............... 15
Events of Default....................... 15
Payment and Transfer.................... 16
Global Securities....................... 16
Defeasance.............................. 17
DESCRIPTION OF CAPITAL STOCK........................... 17
Common Stock............................ 17
Preferred Stock......................... 18
Preferred Stock Rights Agreement........ 18
Nevada General Corporation Law.......... 19
Restrictions on Alien Ownership......... 21
<PAGE>
DESCRIPTION OF DEPOSITARY SHARES....................... 21
General................................. 21
Dividends and Other Distributions....... 22
Conversion and Exchange................. 22
Redemption of Depositary Shares......... 22
Voting the Preferred Stock.............. 22
Amendment and Termination of
Depositary Agreement.................... 23
Charges of Depositary................... 23
Resignation and Removal of Depositary... 23
Miscellaneous........................... 23
DESCRIPTION OF WARRANTS................................ 23
CASINO GAMING REGULATION............................... 24
Nevada Gaming Regulation................ 24
New Jersey Gaming Regulation............ 25
Mississippi Gaming Regulation........... 27
Windsor, Ontario Gaming Regulation...... 28
Nova Scotia Gaming Regulation........... 28
Indiana Gaming Regulation............... 28
Related Provisions of our
Restated Articles of Incorporation.. 28
PLAN OF DISTRIBUTION................................... 29
LEGAL OPINIONS......................................... 29
EXPERTS................................................ 30
<PAGE>
SUMMARY
This summary highlights selected in Windsor, Ontario, and operates
information from this document and four non-gaming resorts in
may not contain all of the Pennsylvania's Pocono Mountains. We
information that is important to have recently announced an extensive
you. To understand the terms of our capital expenditure program designed
securities, you should carefully read to increase and enhance the Caesars
this document and the prospectus product. As part of that program,
supplement that gives the specific Caesars Palace in Las Vegas and
terms of the securities we are Caesars Atlantic City will undergo
offering. You should also read the extensive renovations.
documents we have referred you to in
Where You Can Find More Information In March 1995, we, in
on page 8 for information on our partnership with subsidiaries of
company and our financial statements. Cablevision Systems Corporation,
acquired MSG, the owner of the New
ITT Corporation York Knickerbockers basketball and
New York Rangers hockey franchises
Our company combines one of the as well as the Madison Square Garden
world's largest hotel and gaming Arena, which seats approximately
companies with a premier sports and 20,000 people, and the MSG cable
entertainment franchise and television entertainment network.
information service business. Our Through theMSG cable television
hospitality, gaming, and network, MSG supplies and distributes
entertainment businesses are television programming, which currently
conducted through ITT Sheraton includes broadcasts of the Knicks,
Corporation, Ciga, S.p.a., Caesars Rangers and Yankees games, for cable
World, Inc. and Madison Square systems, principally in New York,
Garden, L.P. The information service New Jersey and Connecticut.
business in conducted through ITT
World Directories, Inc. and ITT On July 1, 1996, we, in
Educational Services, Inc. partnership with Dow Jones & Co.,
purchased television station WNYC-
Through the ITT Sheraton brand TV from New York City. The station
name, we are represented in most has been renamed WBIS+ and in
major markets of the world. In 1995, January 1997 it plans to fully
over 45 million customers stayed at introduce a new format of business
ITT Sheraton properties in and sports programming.
approximately 60 countries. ITT
Sheraton is a worldwide hospitality ITT World Directories, an 80%
network of owned, leased, managed and owned subsidiary, engages in the
franchised properties, including publication of telephone
hotels, casinos and inns. Gaming directories, including classified
operations are marketed under the directory services for telephone
Caesars World and ITT Sheraton brand subscribers in numerous countries
names and are currently represented outside the United States, as well
in Las Vegas, Atlantic City, Halifax as in Puerto Rico and the United
(Nova Scotia), Sydney (Nova Scotia), States Virgin Islands. ITT
Lake Tahoe, Tunica County Educational Services, which is owned
(Mississippi), Lima (Peru), Cairo 83% by us and 17% by the public,
(Egypt), Windsor (Ontario) and operates technical colleges offering
Townsville (Australia). In addition, post- secondary career education.
the acquisition in 1994 of 70.3% of
Ciga and other key hotel properties We also own approximately 7.5
enhanced our geographic balance along million shares (4.8%) of Alcatel
with our image and profile. Alsthom, a French company, which
owns Alcatel N.V., one of the
Caesars World is one of the largest telecommunications equipment
leading companies in gaming. manufacturers in the world.
Caesars' flagship property is the
renowned Caesars Palace in Las Vegas As a result of a spin-off on
and Caesars also owns and operates December 19, 1995 we became an
Caesars Atlantic City in Atlantic independent company and are no
City, New Jersey, and Caesars Tahoe longer affiliated with ITT
in Stateline, Nevada. Caesars also Industries, Inc. or ITT Hartford
owns one-third of a management Group, Inc.
company that operates Casino Windsor,
which was opened in May 1994
<PAGE>
Selected Financial Information
The following information is unaudited and was derived from our
financial statements. The information is only a summary and does not
provide all of the information contained in our financial statements,
including the related notes, and Management's Discussion and Analysis,
which are part of our Annual Report on Form 10-K for the year ended
December 31, 1995 and our Quarterly Reports on Form 10- Q for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996.
You should read our financial statements and other information that we
have filed with the SEC.
Nine Months Ended Nine Months Ended
September 30, September 30,
1996 1995
---- ----
Revenues $4.8 billion $4.6 billion
Net Income $183 million $103 million
Net Income Per Share $1.54 $0.87
At September 30, At December 31,
1996 1995 (audited)
---------------- ---------------
Total Assets $9.2 billion $8.7 billion
Stockholders Equity $3.0 billion $2.9 billion
Our ability to generate earnings to pay the fixed expenses of our
debt is shown below. Before the spin-off in December 1995, our
expenses were allocated to us by our parent. While we believe the
method used to allocate those expenses was reasonable, these
allocations may not necessarily reflect the costs we would have
incurred if we had operated as a separate company.
Ratio of earnings to total fixed charges
----------------------------------------
Nine Months
Ended Year Ended
September 30, 1996 December 31, 1995
------------------ -----------------
2.46 1.76
These computations include us and our subsidiaries, and 50% or
less equity companies. For these ratios, "earnings" is determined by
adding "total fixed charges" (excluding interest capitalized), income
taxes, minority common stockholders equity in net income and
amortization of interest capitalized to income from continuing
operations after eliminating equity in undistributed earnings and
adding back losses of companies in which at least 20% but less than
50% equity is owned. For this purpose, "total fixed charges" consists
of (1) interest on all indebtedness and amortization of debt discount
and expense, (2) interest capitalized and (3) an interest factor
attributable to rentals.
<PAGE>
The Securities We May Offer change our obligations or your rights
concerning the debt. But to change
We may offer up to $565,541,250 the payment of principal or interest,
of any of the following securities every holder in that series must
either separately or in units: debt, consent.
preferred stock, depositary shares,
common stock, and warrants. The o The gaming laws of certain
Prospectus Supplement will describe jurisdictions may limit who may own
the specific amounts, prices, and securities. If these laws do not
terms of these securities. permit you to hold our debt, we
may redeem your debt securities or
Debt Securities require you to sell them. In the
event you are not permitted to
We may offer unsecured general hold our debt under such gaming
obligations of our company in the laws, we may redeem the debt at
form of either senior or subordinated the lesser of either: (1) the
debt. Senior debt includes our price you paid, or (2) the lowest
notes, debt, and guarantees, which closing sale price on any of the
are for money borrowed and not 120 trading days prior to the
subordinated. Subordinated debt, date the gaming authorities gave
designated at the time it is issued, a notice of disqualification.
is entitled to interest and principal
payments after the senior debt o We may discharge the indentures at
payments. any time by depositing sufficient
funds with the Trustee to pay the
The senior and subordinated debt will obligations when due. All amount
be issued under separate indentures due to you on the debt would be
between the company and a trustee, a paid by the Trustee from the
U.S. banking institution. We have deposited funs.
summarized the general features of
the debt from the indentures. We o If we fail to meet our obligations
encourage you to read the indentures on the debt, the indentures give
which are exhibits to our you the following remedy:
registration statement No. 333-07221,
our recent annual report on Form 10-K
and our recent quarterly reports on Event of Default
Form 10-Q. Directions on how you can
get copies are provided on page 8. o Principal not paid when due
General Indenture Provisions that o Sinking fund payment not made
apply to Senior and Subordinated Debt when due
o Failure to pay interest for
o Neither indenture limits the amount 30 days
of debt that we may issue or provides
holder any protection should there o Covenants not performed for
be a highly leveraged transaction 60 days
involving our company.
o Acceleration of at least
o If we redeem debt which is $10,000,000 in principal amount
convertible into our capital stock, of other debt not rescinded in
your right to convert that debt into 30 dyas after notice
our capital stock will expire on
the redemption date. o Any other event of default in
the indenture
o The indentures allow us to merge
or to consolidate with another Remedy
company, or sell all or substantially
all of our assets to another company. Trustee or holders of 25% of
If these events occur, the other the principal amount outstanding
company will be required to assume in a series may declare principal
our responsibilities on the debt, immediately payable. However, a
and we will be released from all majority in principal amount may
liabilities and obligations. rescind this action.
o The indentures provide that holders
of a majority of the total
principal amount of the debt
outstanding in any series may vote to
<PAGE>
Preferred Stock Common Stock
We may issue preferred stock in Common Stock holders are entitled
one or more series and will determine to receive dividends declared by the
the dividend, voting, and conversion Board of Directors (subject to rights
rights, and other provisions at the of Preferred Stock holders).
time of sale. We may also issue Currently, we do not pay a dividend.
fractional shares of preferred stock Each holder of Common Stock is
that will be represented by entitled to one vote per share. The
depositary shares and receipts. holders of common stock have no
preemptive rights or cumulative
On November 1, 1995, we voting rights.
established a preferred share
purchase rights plan and declared a
dividend of one right for each share Warrants
of common stock outstanding. We will
distribute the rights only when we We may issue warrants for the
learn that a person has the right to purchase of Debt Securities,
acquire more than 15% of our Preferred Stock or Common Stock. We
outstanding common stock. You should may issue warrants independently or
read the section of the prospectus together with debt securities,
coverning the Nevada General preferred stock or common stock.
Corporation Law which applies to us
and may make acquisitions or changes
of control more difficult.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION You may request a copy of these
filings, at no cost, by writing or
We file annual, quarterly and telephoning us at the following
special reports, proxy statements and address:
other information with the SEC. You
may read and copy any document we Corporate Secretary
file at the SEC's public reference ITT Corporation
rooms in Washington, D.C., New York, 1330 Avenue of the Americas
New York and Chicago, Illinois. New York, NY 10019-5490
Please call the SEC at 1-800-SEC-0330 212-258-1000
for further information on the public
reference rooms. Our SEC filings are
also available to the public from our
web site at http://ittinfo.com or at You should rely only on the
the SEC's web site at information incorporated by reference
http://www.sec.gov. or provided in this prospectus or the
prospectus supplement. We have
The SEC allows us to "incorporate authorized no one to provide you with
by reference" the information we file different information. We are not
with them, which means that we can making an offer of these securities
disclose important information to you in any state where the offer is not
by referring you to those documents. permitted. You should not assume
The information incorporated by that the information in this
reference is considered to be part of prospectus or the prospectus
this prospectus, and later supplement is accurate as of any date
information filed with the SEC will other than the date on the front of
update and supersede this the document.
information. We incorporate by
reference the documents listed below
and any future filings made with the
SEC under Section 13(a), 13(c), 14,
or 15(d) of the Securities Exchange
Act of 1934 until our offering is
completed.
(a) Annual Report on Form
10-K for the year ended December 31,
1995;
(b) Quarterly Reports on
Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and
September 30, 1996;
(c) The description of the
Company's capital stock contained in
Amendment No.1 to Form 10/A dated
November 13, 1995; and
(d) The portions of the
Company's Proxy Statement on Schedule
14A for the Annual Meeting of
Shareholders held on May 14, 1996
that have been incorporated by
reference into the 10-K.
<PAGE>
THE COMPANY acquired MSG, the owner of the New
York Knickerbockers basketball and
ITT Corporation (the "Company" New York Rangers hockey franchises as
which may be referred to as "we" or well as the Madison Square Garden
"us") combines one of the world's Arena, which seats approximately
largest hotel and gaming companies 20,000 people, and the MSG cable
with a premier sports and television entertainment network.
entertainment franchise and Through the MSG cable television
information service business. The network, MSG supplies and distributes
Company conducts these businesses television programming, which currently
through some of the most recognized includes broadcasts of the Knicks,
brand names in the world. Our Rangers and Yankees games, for cable
hospitality, gaming and entertainment systems, principally in New York,
businesses are conducted through ITT New Jersey and Connecticut.
Sheraton Corporation ("ITT
Sheraton"), Ciga, S.p.A. ("Ciga"), On July 1, 1996, we, in
Caesars World, Inc. ("Caesars") and partnership with Dow Jones & Co.,
Madison Square Garden, L.P. ("MSG"). purchased television station WNYC-TV
Our information service business is from New York City. The station has
conducted through ITT World been renamed WBIS+ and in January
Directories, Inc. ("ITT World 1997 it plans to fully introduce a
Directories") and ITT Educational new format of business and sports
Services, Inc. ("ITT Educational programming.
Services").
ITT World Directories, an 80%
Through the ITT Sheraton brand owned subsidiary, engages in the
name, we are represented in most publication of telephone directories,
major markets of the world. In 1995, including classified directory
over 45 million customers stayed at services for telephone subscribers in
ITT Sheraton properties in numerous countries outside the United
approximately 60 countries. ITT States, as well as in Puerto Rico and
Sheraton is a worldwide hospitality the United States Virgin Islands.
network of owned, leased, managed and ITT Educational Services, which is
franchised properties, including owned 83% by us and 17% by the
hotels, casinos and inns. Gaming public, operates technical colleges
operations are marketed under the offering post-secondary career
Caesars World and ITT Sheraton brand education.
names and are currently represented
in Las Vegas, Atlantic City, Halifax We currently own approximately 7.5
(Nova Scotia), Sydney (Nova Scotia), million shares, or approximately 4.8%
Lake Tahoe, Tunica County of the outstanding capital shares, of
(Mississippi), Lima (Peru), Cairo Alcatel Alsthom, a French company
(Egypt), Windsor (Ontario) and that owns Alcatel N.V., one of the
Townsville (Australia). In addition, largest telecommunications equipment
the acquisition in 1994 of 70.3% of manufacturers in the world.
Ciga and other key hotel properties
enhanced our geographic balance along We were formerly a wholly owned
with our image and profile. subsidiary of a Delaware corporation
known as ITT Corporation ("Old
Caesars World is one of the ITT"). We are a Nevada corporation,
leading companies in gaming. with world headquarters at 1330
Caesars' flagship property is the Avenue of the Americas, New York, New
renowned Caesars Palace in Las Vegas York 10019-5490, and were
and Caesars also owns and operates incorporated in 1995. On
Caesars Atlantic City in Atlantic December 19, 1995, Old ITT (which has
City, New Jersey, and Caesars Tahoe been renamed "ITT Industries, Inc.")
in Stateline, Nevada. Caesars also distributed to its shareholders all
owns one-third of a management of the outstanding shares of the
company that operates Casino Windsor, Common Stock (the "Distribution").
which was opened in May 1994 in The Securities offered under this
Windsor, Ontario, and operates four Prospectus (the "Offered Securities")
non- gaming resorts in Pennsylvania's do not represent an ownership
Pocono Mountaqins. We have recently interest in or obligation of ITT
announced an extensive capital Industries, Inc. We are no longer
expenditure program designed to affiliated with ITT Industries, Inc.
increase and enhance the Caesars or ITT Hartford Group, Inc.
product. As part of that program,
Caesars Palace in Las Vegas and
Caesars Atlantic City will undergo
extensive renovations.
In March 1995, we, in partnership
with subsidiaries of Cablevision
Systems Corporation,
<PAGE>
PROSPECTUS SUPPLEMENT USE OF PROCEEDS
The Prospectus Supplement for each The net proceeds from the sale of
offering of securities will contain the Offered Securities will be used
the specific information and terms for general corporate purposes.
for that offering. The Prospectus General corporate purposes may
Supplement may also add, update or include repayment of debt,
change information contained in this acquisitions, additions to working
Prospectus. It is important for you capital and capital expenditures.
to read both this Prospectus and the
Prospectus Supplement before you
invest.
RATIO OF EARNINGS TO TOTAL FIXED CHARGES
The following table contains our consolidated ratios of earnings
to fixed charges for each of 1995, 1994, 1993, 1992 and 1991 and for
the nine months ended September 30, 1996. For the periods before the
Distribution, our financial statements were prepared as if we were a
separate entity. Certain costs of Old ITT, including certain items
included in fixed charges, were allocated to us. In the opinion of
management, the methods for allocating these costs are believed to
have been reasonable. However, the costs allocated to us are not
necessarily indicative of the costs that would have been incurred if
we had been operated as an unaffiliated entity. It is not practical to
estimate such costs on a stand alone basis.
Nine Months Year Ended December 31,
Ended
Sept. 30, 1996 1995 1994 1993 1992 1991
-------------- ---- ---- ---- ---- ----
Ratio of earnings to
total fixed charges 2.46 1.76 1.98 3.23 1.49 1.41
These computations include us and our subsidiaries, and 50% or
less equity companies. For these ratios, "earnings" is determined by
adding "total fixed charges" (excluding interest capitalized), income
taxes, minority common stockholders equity in net income and
amortization of interest capitalized to income from continuing
operations after eliminating equity in undistributed earnings and
adding back lossesof companies in which at least 20% but less than 50%
equity is owned. For this purpose, "total fixed charges" consists of
(1) interest on all indebtedness and amortization of debt discount and
expense, (2) interest capitalized and (3) an interest factor
attributable to rentals.
----------------------
DESCRIPTION OF DEBT SECURITIES The following summary of
certain provisions of the Indentures
The Debt Securities will be is not complete and you should look
either our senior debt ("Senior Debt at the applicable Indenture that is
Securities") or our subordinated debt filed as an exhibit to the
("Subordinated Debt Securities"). Registration Statement. All article
The Debt Securities will be issued and section references are to
under one or more separate indentures articles and sections of the
between us and a U.S. banking applicable Indenture and unless
institution (a "Trustee"). Senior noted, are to provisions of all
Debt Securities will be issued under Indentures. All capitalized terms
a "Senior Indenture" and Subordinated have the meanings specified in the
Debt Securities will be issued under applicable Indenture.
a "Subordinated Indenture". Together
the Senior Indentures and the General
Subordinated Indentures are called
"Indentures". None of the Indentures
limits the amount of Debt Securities
that may be issued. Each
<PAGE>
Indenture provides that Debt event:
Securities may be issued up to the
principal amount that may be (a) of any insolvency or bankruptcy
authorized by us and may be in any proceedings, or any receivership,
currency or currency unit designated liquidation, reorganization or other
by us. Except for the limitations on similar proceedings concerning the
liens and sale and leaseback Company or its property;
transactions contained in the Senior
Debt Indenture and on consolidation, (b) any Subordinated Debt
merger and sale of assets contained Securities issued thereunder are
in all Indentures, the Indentures and declared due and payable because
the terms of the Debt Securities do of the occurrence of an Event
not contain any covenants or other of Default; or
provisions designed to afford holders
of any Debt Securities protection in (c) of any default in the payment of
a highly leveraged transaction any Senior Debt and during the contin-
involving us. uance of any such default, if either
Debt Securities may be sold (i) appropriate notice of such
in foreign currencies or foreign default has been given to the Company
currency units or the principal of, by the holder of any Senior Debt or
premium, if any, or any interest on
any series of Debt Securities may be (ii) judicial proceedings shall
payable in foreign currencies or be pending concerning such
foreign currency units. default, except as otherwise
noted in the Subordinated
Debt Securities may be Indenture, unless all principal
redeemable at our option or at the of, premium, if any, and
option of holders. interest on the Senior
Debt has been paid in
The Debt Securities may be full.
issued in fully registered form
without coupons ("Fully Registered As of September 30, 1996, we
Securities"), or in a form registered have approximately $4.3 billion of
as to principal only with coupons or Senior Debt outstanding. The
in bearer form with coupons. Unless Subordinated Indenture will not
specified in the Prospectus limit the amount of Senior Debt that
Supplement, the Debt Securities will may be incurred by us.
be only Fully Registered Securities.
In addition, Debt Securities of a "Senior Debt" is defined to
series may be issuable in the form of include all notes or other unsecured
one or more Global Securities, which evidences of indebtedness of the
will be denominated in an amount Company for money borrowed by the
equal to all or a portion of the Company (including all indebtedness
aggregate principal amount of such of any other Person for money
Debt Securities. See "Global borrowed which is guaranteed by the
Securities". (Sections 3.1, 3.2.) Company), not expressed to be
subordinate or junior in right of
One or more series of Debt payment to any other indebtedness of
Securities may be sold at a discount the Company.
below their stated principal amount,
bearing no interest or interest at a Because of such subordination,
rate which at the time of issuance is if we become insolvent,
below market rates. Holders of the Subordinated
Debt Securities may recover
less, ratably, than our other
Subordination creditors, including holders of
Senior Debt Securities.
Under the Subordinated
Indenture, payment of the principal Conversion
of, premium, if any, and interest on
the Subordinated Debt Securities Debt Securities may be
will, when stated in the Subordinated convertible into or exchangable for
Indenture and the applicable Common Stock, Preferred Stock, other
Prospectus Supplement, be Debt Securities, or Warrants or
subordinated and junior in right of other of our securities of any kind
payment to the prior payment in full or
of all Senior Debt. Each
Subordinated Indenture provides that
no payment of principal of, premium,
if any, or interest on the
Subordinated Debt Securities may be
made in the
<PAGE>
securities of any other issuer or accordance with generally accepted
obligor. accounting principles as of a date
not more than 90 days prior to the
Certain Restrictive Covenants date as of which Consolidated Net
Tangible Assets are to be
Each Senior Indenture will determined, but excluding the sum of
require us to comply with certain (i) the book amount of all
restrictive covenants. None of the segregated intangible assets,
Indentures will require us to (ii) all depreciation, valuation and
maintain any Restricted other reserves, (iii) current
Subsidiaries. If we elect not to liabilities, (iv) any minority
maintain any Restricted Subsidiaries, interest in the stock and surplus of
none of the Indentures will provide Restricted Subsidiaries,
any limitations on the activity of (v) investments in subsidiaries
our subsidiaries. However, each which are not Restricted
Senior Indenture will contain certain Subsidiaries, (vi) deferred income
provisions applicable to any entities and deferred liabilities, and
maintained as Restricted (vii) other items deductible under
Subsidiaries, and such provisions are generally accepted accounting
described below. principles. (Section 1.l. of each
Senior Indenture.)
Definitions of Restricted
Subsidiary and Unrestricted "Capitalized Lease-Back
Subsidiary. "Restricted Subsidiary" Obligation" is defined in each
is defined in each Senior Indenture Senior Indenture as the total net
as any subsidiary other than an rental obligations of ITT or a
Unrestricted Subsidiary. Restricted Subsidiary under any
"Unrestricted Subsidiary" is defined lease entered into as part of a sale
as (i) any subsidiary 50% or less of and lease-back transaction involving
the voting stock of which is owned a Principal Property discounted to
directly by ITT and/or one or more present value at the rate of 9% per
Restricted Subsidiaries or (ii) any annum. "Principal Property" is
subsidiary designated as an defined in each Senior Indenture as
Unrestricted Subsidiary by the ITT any single property owned by ITT or
Board of Directors. A Restricted any Restricted Subsidiary having a
Subsidiary can at any time be gross book value in excess of 2% of
designated as an Unrestricted Consolidated Net Tangible Assets,
Subsidiary. An Unrestricted except any such property or portion
Subsidiary's designation may at any of a property which the ITT Board of
time be rescinded by the ITT Board of Directors by resolution declares is
Directors. Any subsidiary may be the not of material importance to the
subject of a series of such total business conducted by ITT and
designations and rescissions, without its Restricted Subsidiaries as an
limitation, except that: (i) a entirety. (Section 1.1. of each
subsidiary may not become an Senior Indenture.)
Unrestricted Subsidiary if, at the
time it becomes an Unrestricted Limitation on Sale and
Subsidiary, it would own any capital Lease-Back Transactions. Each
stock of, or hold any indebtedness Senior Indenture provides that
of, any Restricted Subsidiary; and neither we nor any Restricted
(ii) an Unrestricted Subsidiary may Subsidiary may enter into most sale
not become a Restricted Subsidiary and lease-back transactions
unless such subsidiary has involving any Principal Property,
outstanding no lien upon its property more than 120 days after its
that such subsidiary would be acquisition or the completion of its
prohibited, under the restriction on construction and commencement of its
liens described below, from creating full operation, unless either (i) we
immediately after it becomes a apply an amount equal to the greater
Restricted Subsidiary and, with of the fair value (as determined by
certain exceptions, such subsidiary our Board of Directors) of such
is not a party to any lease that it property or the net proceeds of such
would have been prohibited, under the sale, within 120 days, to the
restriction on sale and lease-back retirement of Senior Debt Securities
transactions described below, from or other indebtedness ranking on a
entering into had it been a parity with the Senior Debt
Restricted Subsidiary at the time it Securities, or to the acquisition,
entered into such lease. construction, development or
(Section 1.1. of each Senior improvement of properties,
Indenture.) facilities or equipment used for
operating purposes which are, or
Definition of Consolidated upon such acquisition, construction,
Net Tangible Assets. "Consolidated development or improvement will be,
Net Tangible Assets" is defined in a Principal Property or a part
each Senior Indenture as the total of thereof, or (ii) at
all assets appearing on a
consolidated balance sheet of ITT and
its Restricted Subsidiaries prepared
in
<PAGE>
the time of entering into such (f) mechanics', carriers',
transaction, such Principal Property workmen's and other like liens;
could have been subjected to a
mortgage securing indebtedness in a (g) encumbrances for the U.S.
principal amount equal to the Government to secure progress or
Capitalized Lease-Back Obligation (as advance payments;
defined) with respect to such
Principal Property under clause (m) (h) mortgages, pledges or other
of the provision for limitations on liens securing any indebtedness
liens referred to below without to finance the cost of
securing the Senior Debt Securities property leased to the U.S.
as contemplated by that provision. Government at a rental
(Section 4.5.) sufficient to pay the
principal of and interest on
Limitation on Liens. Each such indebtedness;
Senior Indenture will prohibit us and
our Restricted Subsidiaries from (i) mortgages or other liens
creating any mortgages or other liens securing indebtedness of a
upon any Principal Property (without Restricted Subsidiary to us
securing the Senior Debt Securities or to a Restricted
equally and ratably with all other Subsidiary;
indebtedness secured thereby), with
the following exceptions: (j) mortgages, pledges or
other liens affecting property
(a) mortgages or other liens on any securing indebtedness of a
constructed or improved by us governmental authority
or a Restricted Subsidiary to issued to finance the cost
secure or provide for the of a pollution control
payment of any part of the program with respect to our
purchase price of such operations or those of a
property or the cost of such Restricted Subsidiary;
construction or improvement,
or any mortgage or other lien (k) renewals, extensions and
on any such property existing replacements of any permitted
at the time of its mortgage, lien, deposit or
acquisition; encumbrance, provided the
amount secured is not
(b) any mortgage or other lien increased;
on any company existing at the
time it is acquired by merger, (l) mortgages or other liens
consolidation or acquisition on any such property existing on
of substantially all of its the date of such Indenture; and
stock or its assets;
(m) the creation of any other
(c) pledges or deposits to secure mortgage, pledge or other lien,
payment of workers' compensation or if, after giving effect to
insurance premiums, or relating the creation, the total of
to tenders, bids, contracts
(except contracts for the (i) the aggregate principal amount
payment of money) or leases; of indebtedness of ITT and its
Restricted Subsidiaries secured
(d) pledges or liens connected by all mortgages, pledges or
with tax assessments or other other liens created under
governmental charges, or as security the provisions referred to
required by law or governmental in this clause (m), plus
regulation as a condition to the
transaction of any business or the (ii) the aggregate amount of
exercise of any privilege or Capitalized Lease-Back
right; Obligations of us and our
Restricted Subsidiaries
(e) pledges or liens to secure under the entire unexpired
a stay of process in proceedings to terms of all leases
enforce a contested liability, or entered into in connection
required with the institution of with sale and lease-back
legal proceedings or connected transactions which would
with any other order or decree in have been precluded by the
any such proceeding or with provision for limitations
any contest of any tax or on such transactions
other governmental charge, or described above, but for
deposits with a governmental the satisfaction of the
agency which entitle us or a condition referred to in
Restricted Subsidiary to clause (ii) of the
maintain self-insurance or description of such
to participate in other provision, will
specified insurance
arrangements;
<PAGE>
not exceed an amount equal to 15% of stated in the applicable Indenture.
Consolidated Net Tangible Assets (as Upon any consolidation or merger, or
defined). any sale of our properties and
assets as, or substantially as, an
The lease of any property and entirety, the corporation formed by
rental obligations thereunder such consolidation or into which we
(whether or not involving a sale and shall have been merged or to which
lease-back and whether or not such sale shall have been made shall
capitalized) will not create a lien. succeed to and be substituted for us
(Section 4.6. of each Senior with the same effect as if it had
Indenture.) been named as a party. Thereafter,
such successor corporation may
exercise each of our rights and
Consolidation, Merger or Sale. powers under each Indenture, in our
name or in its own name. Any act or
Each Indenture will permit proceeding by any provision of the
the consolidation or merger of us applicable Indenture required or
with or into any other corporation, permitted to be done by the Board of
or the merger into us of any other Directors or any of our officers may
corporation, or the sale by us of our be done by the like board or officer
property and assets as, or of any corporation that shall at the
substantially as, an entirety, or time be our successor. In the event
otherwise. However, (a) in case of of the sale by us of our properties
any such consolidation or merger, the and assets as, or substantially as,
corporation resulting from such an entirety upon the terms and
consolidation or any corporation, conditions of the applicable
other than us, into which such merger Indenture, we shall be released from
shall be made shall succeed to and be all our liabilities and obligations
substituted for us and shall become under that Indenture and under the
liable, and shall assume, the due and Debt Securities. (Section 11.1.)
punctual payment of all amounts due
on all the Debt Securities of each Redemption Pursuant to Gaming Laws
series and the coupons, if any,
appertaining thereto and the If a holder or beneficial
performance and observance of every owner of a Debt Security is required
covenant and condition of the by any gaming authority to be
applicable Indenture, and (b) as a licensed or found qualified or
condition of any such sale of our suitable to hold or own the Debt
property and assets as, or Securities and such holder is not
substantially as, an entirety, the licensed or found qualified or
corporation to which such property suitable within any period specified
and assets shall be sold shall by such gaming authority or such
(i) assume, as part of the purchase gaming authority denies a license to
price, the due and punctual payment or finds unqualified or unsuitable
of all amounts due on all the Debt such holder, we will have the
Securities of each series and the following right. We will have the
coupons, if any, appertaining thereto right at our option to require such
and the performance and observance of holder to dispose of such holder's
all the covenants and conditions of Debt Securities within the period
the applicable Indenture, and prescribed by us or such other
(ii) simultaneously with the delivery period as may be prescribed by any
to it of the conveyances or gaming authority. Such period shall
instruments of transfer of such be specified in a written notice
property and assets, execute and from us. If the holder, having been
deliver to the Trustee a supplemental given the opportunity by us to
indenture, where such purchasing dispose of such Debt Securities,
corporation shall assume the due and fails to do so within the prescribed
punctual payment on all the Debt period, we will have the right to
Securities of each series and the call for redemption such holder's
coupons, if any, appertaining thereto Debt Securities by notice of
and the performance and observance of redemption to such person. On such
every covenant and condition of the redemption, the redemption price
applicable Indenture, to the same will be the lesser of (a) the lowest
extent that we are bound and liable. closing sale price of the Debt
Securities on any trading day during
We will not consolidate with the 120 day period commencing on the
any other corporation or accept a date upon which we shall have
merger of any other corporation into received notice from a gaming
us or permit ourselves to be merged authority of such holder's
into any other corporation, or sell disqualification or (b) the price at
our properties and assets as, or which such holder acquired the Debt
substantially as, an entirety, except Securities, unless a
upon the terms and conditions
<PAGE>
(vi) certain events in bankruptcy,
different redemption price is insolvency or reorganization of the
required by such gaming authority, in Company; or
which event such required price shall
be the redemption price. (vii) any other Event of Default
(Section 14.5.) provided in the applicable Board
Resolution or supplemental indenture
Modification of Indenture under which such series of Debt
Securities is issued.
Under each Indenture our (Section 6.1.)
rights and obligations and the rights
of the Holders may be modified with An Event of Default for a particular
the consent of the Holders of not series of Debt Securities does not
less than a majority in aggregate necessarily constitute an Event of
principal amount of the Outstanding Default for any other series of Debt
Debt Securities of each such series Securities issued under such
(including Debt Securities of each Indenture. The applicable Trustee
such series issuable upon exercise of may withhold notice to the Holders
unexpired Warrants) affected by the of any series of Debt Securities of
modification or amendment. No any default for such series (except
modification of the terms of payment in the payment of principal or
of principal or interest, and no interest) if it considers such
modification reducing the percentage withholding in the interests of such
required for modifications, is Holders. (Section 6.11.)
effective against any Holder without
its consent. For these provisions If an Event of Default for
solely, a holder of an unexpired any series of Debt Securities shall
Warrant shall be deemed to be the have occurred and be continuing, the
Holder of the principal amount of applicable Trustee or the Holders of
Debt Securities issuable upon not less than 25% in aggregate
exercise of such Warrant. principal amount of the Debt
(Section 10.2.) Securities of such series may
declare the entire principal, or in
Events of Default the case of discounted Debt
Securities, such portion as may be
Unless otherwise indicated, described in the applicable
the term "Event of Default" when used Prospectus Supplement, of all the
in an Indenture, will mean any of the Debt Securities of such series to be
following: due and payable immediately.
Subject to certain conditions, any
(i) default in the payment such declaration and
any, on) any Debt Security of consequences may be rescinded and
such series when and as the annulled by the Holders of not less
same shall be due and than a majority in aggregate
payable; principal amount of the Debt
Securities of such series.
(ii) default in the deposit (Section 6.1.)und payment, if any,
when and as the same shall be
due and payable by the terms Each Indenture will require
of the Debt Securities of us to file annually with the Trustee
such series; a certificate, signed by an officer,
stating whether or not such officer
(iii) default for 30 days in has knowledge of any default by us
interest on any Debt Security in the performance, observance or
of such series; fulfillment of any condition or
covenant of such Indenture.
(iv) default for 60 days (Sections 4.5.,e5.3.fofmeach Senior
after other covenant of the Indenture, Sections 4.7, 5.3 of each
Debt Securities of such series Subordinated Indenture.)
contained in such Indenture;
Subject to provision of its
(v) acceleration of certain duties in case of default, a Trustee
$10,000,000 aggregate shall be under no obligation to
principal amount, which exercise any of its rights or powers
acceleration shall not have under the applicable Indenture at
been rescinded or annulled the request, order or direction of
within 30 days after notice; any Holders, unless such Holders
offer such Trustee reasonable
indemnity. (Section 7.2.) Subject
to such provisions for
indemnification, the Holders of
<PAGE>
a majority in principal amount of the organized under the New York Banking
Debt Securities of any series may Law, a "banking organization" within
direct the time, method and place of the meaning of the New York Banking
conducting any proceeding or any Law, a member of the United States
remedy available to the appropriate Federal Reserve System, a "clearing
Trustee, or exercising any trust or corporation" within the meaning of
power conferred upon such Trustee, the New York Uniform Commercial Code
for the Debt Securities of such and a "clearing agency" registered
series. (Section 6.9.) under the provisions of Section 17A
of the Securities Exchange Act of
Payment and Transfer 1934. DTC holds securities that its
participants ("Direct Participants")
Principal of, premium, if deposit with DTC. DTC also
any, and interest, if any, on Fully facilitates the settlement among
Registered Securities will be paid at Direct Participants of securities
the place or places designated by us transactions, such as transfers and
for such purposes. Payment of pledges, in deposited securities
interest, if any, may be made at our through electronic computerized
option by check mailed to the persons book-entry changes in such Direct
in whose names such Securities are Participant's accounts, eliminating
registered at the close of business the need for physical movement of
on the day or days specified by us. securities certificates. Direct
The principal of, premium, if any, Participants include securities
and interest, if any, on Debt brokers and dealers, banks, trust
Securities in other forms will be companies, clearing corporations and
paid at such place as is designated certain other organizations. DTC is
by us and specified in the applicable owned by a number of its Direct
Prospectus Supplement. Participants and by the New York
(Sections 3.1., 4.1., 4.2.) Stock Exchange, Inc., The American
Stock Exchange, Inc. and The
Fully Registered Securities National Association of Securities
may be transferred or exchanged at Dealers, Inc. Access to DTC's
the Corporate Trust Office of the book-entry system is also available
Trustee under the applicable to others such as securities brokers
Indenture or at any other office or and dealers, banks and trust
agency maintained by us for such companies that clear through or
purposes, without the payment of any maintain a custodial relationship
service charge except for any tax or with a Direct Participant, either
governmental charge. (Sections 3.1., directly or indirectly ("Indirect
3.6.) Participants"). The rules
applicable to DTC and its Direct and
Global Securities Indirect Participants are on file
with the SEC.
The Debt Securities of a
series may be issued in whole or in Principal and interest
part in the form of one or more payments on Global Securities
Global Securities that will be registered in the name of DTC's
deposited with the Depositary nominee will be made in immediately
identified in the applicable available funds to DTC's nominee as
Prospectus Supplement. Unless it is the registered owner of the Global
exchanged in whole or in part for Securities. We and the Trustee will
Debt Securities in definitive form, a treat DTC's nominee as the owner of
Global Security may not be the Global Securities for all other
transferred except as a whole to a purposes as well. Accordingly, we,
nominee of the Depositary for such the Trustee and any paying agent
Global Security, or by a nominee of will have no direct responsibility
such Depositary to such Depositary, or liability to pay amounts due on
or to a successor of such Depositary the Global Securities to owners of
or a nominee of such successor. beneficial interests in the Global
(Section 2.4.) Securities. It is DTC's current
practice, upon receipt of any
Unless otherwise stated, The payment of principal or interest, to
Depository Trust Company, New York, credit Direct Participants' accounts
New York ("DTC") will act as on the payment date according to
Depositary for each series of Global their respective holdings of
Securities. Beneficial interests in beneficial interests in the Global
Global Securities will be shown on, Securities as shown on DTC's
and transfers of Global Securities records. Payments by Direct and
will be effected only through, Indirect Participants to owners of
records maintained by DTC and its beneficial interests in the Global
participants. Securities will be governed by
standing instructions and
DTC has provided the
following information to us: DTC is a
limited-purpose trust company
<PAGE>
customary practices, as is the case might be required to recognize gain
with securities held for the account or loss equal to the difference
of customers in bearer form or between the Holder's cost or other
registered in "street name". Such tax basis for the Debt Securities
payments will be the responsibility and the value of the Holder's
of such Direct and Indirect interest in the trust. Such Holders
Participants and not of DTC, the might be required to include in
Trustee or us. income a different amount than would
be includable without the discharge.
Debt Securities represented Prospective investors are urged to
by a Global Security will be consult their own tax advisers as to
exchangeable for Debt Securities in the consequences of such a deposit
definitive form of like tenor in and discharge, including the
authorized denominations only if DTC applicability and effect of tax laws
notifies us that it is unwilling or other than the Federal income tax
unable to continue as Depositary or law.
if DTC ceases to be a clearing agency
registered under applicable law and a
successor depositary is not appointed DESCRIPTION OF CAPITAL STOCK
by us within 90 days or we, in our
discretion, determine not to require As of September 30, 1996,
all of the Debt Securities of a our authorized capital stock was
series to be represented by a Global 250,000,000 shares. Those shares
Security and notify the Trustee of consisted of: (a) 50,000,000 shares
our decision. of Preferred Stock, none of which
were outstanding; and
Defeasance (b) 200,000,000 shares of Common
Stock, of which 116,350,260 shares
Each Indenture provides that were outstanding.
we will be discharged from our
obligations on the Debt Securities Common Stock
of a series at any time before the
Stated Maturity (as defined) or Holders of Common Stock are
redemption when (a) we have entitled to receive dividends
irrevocably deposited with the declared by the Board of Directors,
Trustee, in trust, (i) sufficient out of funds legally available for
funds to pay the principal of (and their payment, in cash, stock or
premium, if any), and interest to the otherwise (subject to the rights of
Stated Maturity (or redemption) on, holders of Preferred Stock).
the Debt Securities of such series, Currently, we are not paying a
or (ii) such amount of direct dividend. Each holder of Common
obligations of, or obligations the Stock is entitled to one vote per
principal of and interest on which share. Subject to the provisions of
are fully guaranteed by the applicable law and any certificate
government that issued the currency of designation providing for the
that the Debt Securities are issuance of any series of Preferred
denominated in, which are not subject Stock, the holders of Common Stock
to prepayment, redemption or call, as are entitled to notice of
will, together with the predetermined shareholders' meetings and have the
and certain income to accrue without exclusive power to vote. Upon any
consideration of any reinvestment, be liquidation, dissolution or
sufficient to pay when due the winding-up of the business of the
principal of (and premium, if any), Company, whether voluntary or
and interest to Stated Maturity (or involuntary, the holders of Common
redemption) on, the Debt Securities Stock are entitled to share equally
of such series, and (b) we have paid in the assets available for
all other sums to be paid on the distribution after payment of all
Securities of such series. Upon such liabilities and provision for the
discharge, the Holders of the Debt liquidation preference of any shares
Securities of such series will not be of Preferred Stock then
entitled to the benefits of the outstanding. The holders of Common
Indenture, except for registration of Stock have no preemptive rights or
transfer and exchange of the Debt cumulative voting rights; therefore,
Securities of such series, and the holders of a majority of the
replacement of lost, stolen or shares voting for the election of
mutilated Debt Securities, and shall the Board of Directors can elect all
look only to such deposited funds or the directors nominated for election.
obligations for payment.
(Sections 12.1., 12.3.) The outstanding shares of
Common Stock are listed on the NYSE
Under Federal income tax law under the symbol
as of the date of this Prospectus,
such deposit and discharge may be
treated as an exchange of the related
Debt Securities. Each Holder of such
Debt Securities
<PAGE>
"ITT." The transfer agent and Depositary Shares evidenced by
registrar for the Common Stock is The depositary receipts, each
Bank of New York. representing an interest in a share
of the particular series of the
All outstanding shares of Preferred Stock issued and deposited
Common Stock are fully paid and with a depositary.
non-assessable. Any additional
shares of Common Stock, including Preferred Stock Rights Agreement
shares issuable upon conversion,
exchange or exercise of any of the On November 1, 1995, we
Offered Securities, when issued and adopted a Preferred Share Purchase
paid for will be, fully paid and Rights Plan ("Rights Plan") and
non-assessable. declared a dividend of one right
("Right") for each outstanding share
Preferred Stock of Common Stock. The Rights are
transferable only with the Common
The following description of Stock until they become
the terms of the Preferred Stock sets exercisable. The Rights will not be
forth certain general terms and exercisable until the plan
provisions of the Preferred Stock to distribution date and will expire on
which a Prospectus Supplement may November 1, 2005 (the "Expiration
relate. The description is subject Date"), unless earlier redeemed by
to and qualified by reference to the us as described below. Each Right,
certificate of designations when it becomes exercisable, will
establishing a particular series of entitle the registered holder to
Preferred Stock, which will be filed purchase from us one one-thousandth
with the SEC in connection with the (1/1000th) of a share of Preferred
offering of such series. Stock (the "Preferred Shares") at a
price (substantially above the
Our Board of Directors can, expected current trading value of
without approval of the shareholders, the Company) to be determined,
cause the Preferred Stock to be subject to adjustment in certain
issued in one or more series. The circumstances (the "Purchase Price").
Board can also determine the number
of shares of each series and the Under the Rights Plan, the
rights, preferences and limitations plan distribution date (the "Plan
of each series including, without Distribution Date") is the earlier
limitation, the dividend rights, of (i) such time as the Company
voting rights, conversion rights, learns that a person or group
redemption rights and liquidation (including any affiliate or
preferences, if any, of any wholly associate of such person or group)
unissued series of Preferred Stock, has acquired, or has obtained the
the number of shares constituting right to acquire, beneficial
each such series and the terms and ownership of more than 15% of the
conditions of their issue. Depending outstanding shares of Common Stock
upon the rights of such Preferred (such person or group being an
Stock, the issuance of Preferred "Acquiring Person"), unless
Stock could have an adverse effect on provisions preventing accidental
holders of Common Stock by delaying a triggering of the distribution of
change in control of the Company, the Rights apply, and (ii) the close
making removal of the present of business on such date, if any, as
management of the Company more may be designated by the Board of
difficult or resulting in Directors following the commencement
restrictions upon the payment of of, or first public disclosure of an
dividends and other distributions to intent to commence, a tender or
the holders of Common Stock. exchange offer for 15% or more of
the outstanding shares of Common
The Preferred Stock will, Stock.
when issued, be fully paid and
nonassessable. Until the Plan Distribution
Date, the Rights will be evidenced
The transfer agent, by the certificates for Common Stock
registrar, and dividend disbursement registered in the names of the
agent for a series of Preferred Stock holders. As soon as practical
will be selected by us. The following the Plan Distribution
registrar for shares of Preferred Date, separate certificates
Stock will send notices to evidencing the Rights ("Right
stockholders of any meetings at which Certificates") will be mailed to
holders of the Preferred Stock have holders of record of the Common
the right to elect directors or to Stock as of the close of business on
vote on any other matter. the Plan Distribution Date (and to
each initial record holder of
As described under certain Common Stock
"Description of Depositary Shares",
we may, at our option, elect to offer
<PAGE>
originally issued after the Plan supplement or amend any provision of
Distribution Date), and such separate the Rights Plan, except that no
Right Certificates alone will supplement or amendment shall be
evidence the Rights. Until a Right made that reduces the Redemption
is exercised, the holder will have no Price (other than by certain
rights as a shareholder of the adjustments) or provides for an
Company, including, without earlier Expiration Date. From and
limitation, the right to vote or to after the Plan Distribution Date, we
receive dividends for the Rights or may amend the Rights Plan (i) to
the related Preferred Shares. cure any ambiguity or to correct or
supplement any provision in the
If there is an Acquiring Rights Plan that may be defective or
Person, the Rights will entitle each inconsistent with any other
holder of a Right (other than such provision or (ii) to make any other
Acquiring Person) to purchase, for provisions that we may find
the Purchase Price, that number of necessary or desirable and that
one one-thousandths (1/1000ths) of a shall not adversely affect the
Preferred Share equivalent to the interests of the holders of Right
number of shares of Common Stock Certificates (other than an
that, at the time of such event, Acquiring Person or its affiliates
would have a market value of twice or associates).
the Purchase Price.
The Rights Plan is designed
If we are acquired in a to protect our shareholders in the
merger or other business combination event of unsolicited offers to
by an Acquiring Person or an acquire the Company and other
affiliate or associate of an coercive takeover tactics, which, in
Acquiring Person or 50% or more of the opinion of the Board of
our assets or assets representing 50% Directors, could impair its ability
or more of our revenues or cash flow to represent shareholder interests.
are sold, leased, exchanged or The provisions of the Rights Plan
otherwise transferred (in one or more may render an unsolicited takeover
transactions) to an Acquiring Person more difficult or less likely to
or an affiliate or associate of an occur or may prevent such takeover,
Acquiring Person, each Right will even though such takeover may offer
entitle its holder (other than Rights our shareholders the opportunity to
beneficially owned by such Acquiring sell their stock at a price above
Person or its affiliates or the prevailing market rate and may
associates) to purchase, for the be favored by a majority of our
Purchase Price, that number of common shareholders.
shares of such corporation (or, if
such corporation is not a publicly Nevada General Corporation Law
traded corporation, that number of
common shares of an affiliate of such The terms of Chapter 78 of
corporation that has publicly traded the Nevada Revised Statutes,
shares) that, at the time of the entitled the Nevada General
transaction, would have a market Corporation Law (the "NGCL"), apply
value (or, in certain circumstances, to us. Under certain circumstances,
book value) of twice the Purchase the following provisions of the NGCL
Price. may delay or make more difficult
acquisitions or changes of control
Before the earlier of such of the Company. Our Restated
time as a person or group becomes an Articles of Incorporation and
Acquiring Person and the Expiration Amended and Restated By-laws do not
Date, the Board of Directors may exclude us from such provisions of
redeem the Rights in whole, but not the NGCL. Such provisions may make
in part, at a price (in cash or it more difficult to accomplish
Common Stock or other securities of transactions that shareholders may
the Company determined by the Board believe are in their best
of Directors to be at least interests. Such provisions may also
equivalent in value) of $0.01 per have the effect of preventing
Right (the "Redemption Price"), which changes in our management.
amount shall be subject to adjustment
as provided in the Rights Plan. Control Share Acquisitions.
Under Sections 78.378 to 78.3793 of
In addition, after there is the NGCL, an "acquiring person," who
an Acquiring Person, the Board of acquires a "controlling interest" in
Directors may elect to exchange each an "issuing corporation," may not
Right for consideration per Right exercise voting rights on any
consisting of one-half of the "control shares" unless such voting
securities that would be issuable at
such time upon exercise of one Right
pursuant to the terms of the Rights
Plan.
Before the Plan Distribution
Date, we may
<PAGE>
rights are conferred by a majority cause such stockholder to become an
vote of the disinterested interested stockholder, unless the
shareholders of the issuing combination or the purchase of
corporation at a special meeting of shares by the interested stockholder
such shareholders held upon the on the interested stockholder's date
request and at the expense of the of acquiring the shares that cause
acquiring person. If the control such stockholder to become an
shares are accorded full voting interested stockholder is approved
rights and the acquiring person by the board of directors of the
acquires control shares with a resident domestic corporation before
majority or more of all the voting that date. If the combination was
power, any shareholder, other than not previously approved, the
the acquiring person, who does not interested stockholder may effect a
vote for authorizing voting rights combination after the three-year
for the control shares, is entitled period only if such stockholder
to demand payment for the fair value receives approval from a majority of
of their shares, and the corporation the disinterested shares or the
must comply with the demand. For the offer meets certain fair price
above provisions, "acquiring person" criteria. For the above provisions,
means (subject to certain exceptions) "resident domestic corporation"
any person who, individually or in means a Nevada corporation that has
association with others, acquires or 200 or more shareholders.
offers to acquire, directly or "Interested stockholder" means any
indirectly, a controlling interest in person, other than the resident
an issuing corporation. "Controlling domestic corporation or its
interest" means the ownership of subsidiaries, who is (i) the
outstanding voting shares of an beneficial owner, directly or
issuing corporation sufficient to indirectly, of 10% or more of the
enable the acquiring person, voting power of the outstanding
individually or in association with voting shares of the resident
others, directly or indirectly, to domestic corporation or (ii) an
exercise (i) one-fifth or more but affiliate or associate of the
less than one-third, (ii) one-third resident domestic corporation and,
or more but less than a majority, at any time within three years
and/or (iii) a majority or more of immediately before the date in
the voting power of the issuing question, was the beneficial owner,
corporation in the election of directly or indirectly, of 10% or
directors. Voting rights must be more of the voting power of the then
conferred by a majority of the outstanding shares of the resident
disinterested shareholders as each domestic corporation. The above
threshold is reached and/or does not apply to corporations that
exceeded. "Control Shares" means so elect in a charter amendment
those outstanding voting shares of an approved by a majority of the
issuing corporation which an disinterested shares. Such a
acquiring person acquires or offers charter amendment, however, would
to acquire in an acquisition or not become effective for 18 months
within 90 days immediately preceding after its passage and would apply
the date when the acquiring person only to stock acquisitions occurring
became an acquiring person. "Issuing after its effective date. Our
corporation" means a corporation that Restated Articles of Incorporation
is organized in Nevada, has 200 or do not exclude us from the
more shareholders (at least 100 of restrictions imposed by such
whom are shareholders of record and provisions.
residents of Nevada) and does
business in Nevada directly or though Directors' Duties. Section
an affiliated corporation. The above 78.138 of the NGCL allows directors
does not apply if the articles of and officers, in exercising their
incorporation or by-laws of the respective powers to further the
corporation in effect on the 10th day interests of the corporation, to
following the acquisition of a consider the interests of the
controlling interest by an acquiring corporation's employees, suppliers,
person provide that said provisions creditors and customers. They can
do not apply. Our Restated Articles also consider the economy of the
of Incorporation and Amended and state and the nation; the interests
Restated By-laws do not exclude us of the community and of society and
from the restrictions imposed by such the long and short-term interests of
provisions. the corporation and its
shareholders, including the
Certain Business possibility that these interests may
Combinations. Sections 78.411 to be best served by the continued
78.444 of the NGCL restrict the independence of the corporation.
ability of a "resident domestic Directors may resist a change or
corporation" to engage in any potential change in
combination with an "interested
stockholder" for three years
following the interested
stockholder's date of acquiring the
shares that
<PAGE>
control if the directors, by a of the total outstanding Common
majority vote of a quorum, determine Stock. No transfers of shares to
that the change or potential change aliens may be made if, after giving
is opposed to or not in the best effect to such transfer, alien
interest of the corporation. In so ownership would exceed 25%. As of
determining, the board of directors September 30, 1996, we believe that
may consider the interests described approximately 6% of our outstanding
above or have reasonable grounds to Common Stock was owned of record by
believe that, within a reasonable aliens.
time, the debt created as a result of
the change in control would cause the
assets of the corporation or any DESCRIPTION OF DEPOSITARY
successor to be less than the SHARES
liabilities or would render the
corporation or any successor The description below and in
insolvent or lead to bankruptcy any Prospectus Supplement of certain
proceedings. provisions of the Deposit Agreement
and of the Depositary Shares and
Restrictions on Alien Ownership Depositary Receipts is not complete
and is subject to and qualified by
Because we, in partnership reference to the forms of Deposit
with Dow Jones & Co., own WBIS+, the Agreement and Depositary Receipts
Communications Act of 1934, as relating to each series of Preferred
amended (the "Communications Act"), Stock that will be filed with the
restricts the ownership of our Common SEC.
Stock by "aliens." The Communications
Act generally defines "aliens" to General
include persons who are not citizens
of the United States, entities We may elect to offer
organized under laws other than those fractional interests in shares of
of the United States, foreign Preferred Stock, rather than shares
governments, entities controlled of Preferred Stock. If we do, we
directly or indirectly by foreign will provide for the issuance by a
nationals, and the representatives of depositary to the public of receipts
foreign persons or foreign-controlled for depositary shares ("Depositary
entities. Shares"), each of which will
represent fractional interests of a
Because we have shared particular series of Preferred Stock.
control of a broadcast licensee, the
limitations in Section 310(b)(4) of The shares of any series of
the Communications Act govern the Preferred Stock underlying the
permissible degree of alien ownership Depositary Shares will be deposited
and control of the outstanding Common under a separate Deposit Agreement
Stock. Under Section 310(b)(4), no (the "Deposit Agreement") between us
more than 25% of the ownership nor and a bank or trust company selected
more than 25% of the voting rights in by us having its principal office in
the Company may be held directly or the United States and having a
indirectly by aliens. In assessing combined capital and surplus of at
compliance with the 25% ceiling, the least $50 million. Subject to the
Federal Communication Commission terms of the Deposit Agreement, each
("FCC") will consider direct and owner of Depositary Shares will be
indirect alien interests using a entitled, in proportion to the
multiplier, so, for example, minority applicable fractional interests in
alien interests in U.S. controlled shares of Preferred Stock underlying
corporations will count such Depositary Shares to all the
proportionally against the 25% rights and preferences of the
ceiling. Alien voting interests are Preferred Stock underlying such
not treated proportionally, however, Depositary Shares. Those rights
in any corporation that is alien include dividend, voting,
controlled. The alien interest in redemption, conversion, and
any partnership with an alien partner liquidation rights.
also is not treated proportionally
unless the alien partner is a limited The Depositary Shares will
partner that is insulated from be evidenced by depositary receipts
material involvement in the business issued under the Deposit Agreement
of the partnership within the meaning (the "Depositary Receipts").
of the FCC's rules and policies. Individuals purchasing the
fractional interests in shares of
Our Amended and Restated the related series of Preferred
By-laws provide that the amount of
Common Stock owned of record or voted
by aliens within the meaning of the
FCC's rules and policies may not
exceed 25%
<PAGE>
Stock will receive Depositary depositary will mail notice of
Receipts according to the terms of redemption not less than 30 and not
the offering described in the more than 60 days prior to the date
Prospectus Supplement. fixed for redemption to the record
holders of the Depositary Shares to
Dividends and Other Distributions be so redeemed at their addresses
appearing in the depositary's books.
The depositary will The redemption price per Depositary
distribute all cash dividends or Share will be equal to the
other cash distributions received for applicable fraction of the
the Preferred Stock to the record redemption price per share payable
holders of Depositary Shares on such series of the Preferred
representing such Preferred Stock in Stock. Whenever we redeem shares of
proportion to the numbers of such Preferred Stock held by the
Depositary Shares owned by such depositary, the depositary will
holders on the relevant record date. redeem as of the same redemption
The depositary will distribute only date, the number of Depositary
such amount as can be distributed Shares representing the Preferred
without attributing to any holder of Stock. If less than all the
Depositary Shares a fraction of one Depositary Shares are to be
cent. The balance not distributed redeemed, the Depositary Shares to
will be added to and treated as part be redeemed will be selected by lot
of the next sum received by the or pro rata as determined by the
depositary for distribution to record depositary.
holders of Depositary Shares.
After the date fixed for
If there is a distribution redemption, the Depositary Shares
other than in cash, the depositary called for redemption will no longer
will distribute property received by be outstanding. When the Depositary
it to the entitled record holders of Shares are no longer outstanding,
Depositary Shares, in proportion, all rights of the holders will
insofar as possible, to the number of cease, except the right to receive
Depositary Shares owned by such money, securities, or other property
holders, unless the depositary payable upon such redemption and any
determines (after consultation with money, securities, or other property
us) that it is not feasible to make that the holders of such Depositary
such distribution. If this occurs, Shares were entitled to upon such
the depositary may, with our redemption upon surrender to the
approval, sell such property and depositary of the Depositary
distribute the net proceeds from such Receipts evidencing such Depositary
sale to such holders. Shares.
The Deposit Agreement also Voting the Preferred Stock
will contain provisions relating to
how any subscription or similar Upon receipt of notice of
rights offered by us to holders of any meeting at which the holders of
the Preferred Stock will be made the Preferred Stock are entitled to
available to the holders of vote, the depositary will mail the
Depositary Shares. particulars of such meeting to the
record holders of the Depositary
Conversion and Exchange Shares representing such Preferred
Stock. Each record holder of such
If any series of Preferred Depositary Shares on the record date
Stock underlying the Depositary (which will be the same date as the
Shares is subject to conversion or record date for the Preferred Stock)
exchange, each record holder of will be entitled to instruct the
Depositary Receipts will have the depositary on the exercise of the
right or obligation to convert or voting rights representing the
exchange the Depositary Shares shares of Preferred Stock underlying
represented by such Depositary such holder's Depositary Shares. The
Receipts. depositary will try, if practical,
to vote the number of shares of
Redemption of Depositary Shares Preferred Stock underlying such
Depositary Shares according to such
If a series of the Preferred instructions, and we will agree to
Stock underlying the Depositary take all reasonable action requested
Shares is subject to redemption, the by the depositary in order to enable
Depositary Shares will be redeemed the depositary to do so.
from the proceeds received by the
depositary resulting from the
redemption, in whole or in part, of
such series of the Preferred Stock
held by the depositary. The
<PAGE>
Amendment and Termination of Neither the depositary nor
Depositary Agreement the Company will be liable if it is
prevented or delayed by law or any
The form of Depositary circumstance beyond its control in
Receipt evidencing the Depositary performing its obligations under the
Shares and any provision of the Deposit Agreement. Our obligations
Deposit Agreement may be amended by and the depositary's obligations
agreement between us and the under the Deposit Agreement will be
depositary. However, any amendment limited to performance in good faith
that materially and adversely alters of duties set forth in the Deposit
the rights of the existing holders of Agreement. Neither the depositary
Depositary Shares will not be nor we will be obligated to
effective unless approved by the prosecute or defend any legal
record holders of at least a majority proceeding connected with any
of the Depositary Shares then Depositary Shares or Preferred Stock
outstanding. A Deposit Agreement may unless satisfactory indemnity is
be terminated by us or the depositary furnished. We and the depositary may
only if (a) all related outstanding rely upon written advice of counsel
Depositary Shares have been redeemed or accountants, or information
or (b) there has been a final provided by persons presenting
distribution of the Preferred Stock Preferred Stock for deposit, holders
of the relevant series in connection of Depositary Shares, or other
with our liquidation, dissolution, or persons believed to be competent and
winding up and such distribution has on documents believed to be genuine.
been distributed to the holders of
the related Depositary Shares.
DESCRIPTION OF WARRANTS
Charges of Depositary
We may issue Warrants for
We will pay all transfer and the purchase of Debt Securities,
other taxes and governmental charges Preferred Stock or Common Stock.
arising solely from the existence of Warrants may be issued independently
the depositary arrangements. We will or together with Debt Securities,
pay associated charges of the Preferred Stock, or Common Stock and
depositary for the initial deposit of may be attached to or separate from
the Preferred Stock and any any such Offered Securities. Each
redemption of the Preferred Stock. series of Warrants will be issued
Holders of Depositary Shares will pay under a separate warrant agreement
transfer and other taxes and (a "Warrant Agreement") to be
governmental charges and such other entered into between us and a bank
charges as are stated in the Deposit or trust company, as warrant agent
Agreement to be for their accounts. (the "Warrant Agent"). The Warrant
Agent will act solely as our agent
Resignation and Removal of Depositary for the Warrants and will not assume
any obligation or relationship of
The depositary may resign by agency or trust for or with any
delivering notice to us, and we may holders or beneficial owners of
remove the depositary. Resignations Warrants. This summary of certain
or removals will take effect upon the provisions of the Warrants is not
appointment of a successor depositary complete and is subject to, and
and its acceptance of such qualified by reference to, the
appointment. Such successor provisions of the Warrant Agreement
depositary must be appointed within that will be filed with the SEC as
60 days after delivery of the notice part of the offering of such
of resignation or removal and must be Warrants.
a bank or trust company having its
principal office in the United States If a holder or beneficial
and having a combined capital and owner of a Warrant is required by
surplus of at least $50 million. any gaming authority to be licensed
or found qualified or suitable to
Miscellaneous hold or own the Warrants and such
holder is not licensed or found
The depositary will forward qualified or suitable within any
to the holders of Depositary Shares period specified by such gaming
all reports and communications from authority or such gaming authority
us that are delivered to the denies a license to or finds
depositary and that we must furnish unqualified or unsuitable such
to the holders of the Preferred holder, we will have the right at
stock. our option to require such holder to
dispose of
<PAGE>
such holder's Warrants. Such The Nevada Gaming Commission
disposal will be within the period (the "Nevada Commission") and the
prescribed by us or such other period Nevada State Gaming Control Board
as may be prescribed by any gaming (the "Nevada Control Board"), as
authority, which period will be in a well as various local, county and
written notice from us. If the state regulatory agencies
holder of such Warrants fails to do (hereinafter collectively referred
so within the prescribed period, we to as the "Nevada Gaming
will have the right to call for Authorities") may investigate and
redemption such holder's Warrants by require a finding of suitability of
notice of redemption to such person. any holder of any class of our
The redemption price shall be the voting securities at any time.
lesser of (a) the lowest closing sale Nevada law requires any person who
price of the Warrants on any trading acquires more than 5% of any class
day during the 120 day period of our voting securities to report
commencing on the date upon which we the acquisition to the Nevada
shall have received notice from a Commission, and such person may be
gaming authority of such holder's investigated to determine
disqualification or (b) the price at suitability. Any person who becomes
which such holder acquired the a beneficial owner of more than 10%
Warrants, unless a different of any class of our voting
redemption price is required by such securities must apply for a finding
gaming authority, in which event such of suitability by the Nevada
required price shall be the Commission within 30 days after the
redemption price. Nevada Control Board Chairman mails
a written notice requiring such
filing, and must pay the costs and
CASINO GAMING REGULATION fees incurred by the Nevada Control
Board in connection with the
Our gaming operations investigation. Under certain
currently consist of Caesars Palace circumstances, an "institutional
in Las Vegas, Caesars Atlantic City investor," as such term is defined
in Atlantic City, Caesars Tahoe in in the Nevada Gaming Control Act and
Stateline, Nevada, the Desert Inn regulations, which acquires more
Resort's Casino in Las Vegas, the than 10%, but not more than 15% of
Sheraton Casino in Tunica County, our voting securities, may apply to
Mississippi, and various hotel and the Nevada Commission for a waiver
casino operations of ITT Sheraton and of such finding of suitability
Caesars outside the United States. requirements if such institutional
These gaming operations are subject investor holds the voting securities
to extensive regulation, including for investment purposes only. An
the following: institutional investor will not be
deemed to hold voting securities for
Nevada Gaming Regulation investment purposes unless the
voting securities were acquired and
The ownership and/or are held in the ordinary course of
operation of casino gaming facilities business as an institutional
in Nevada is subject to state and investor and not for the purpose of
local regulation. Nevada's casino causing, directly or indirectly, the
gaming laws, regulations and election of a majority of the
supervisory procedures are extensive members of our Board of Directors,
and reflect certain broad any change in our corporate charter,
declarations of public policy. In by-laws, management, policies or
general, Nevada's gaming laws, operations or any of our casino
regulations and supervisory gaming operations, or any other
procedures seek to (i) prevent action which the Nevada Commission
unsavory or unsuitable persons from finds to be inconsistent with
having any direct or indirect holding our voting securities for
involvement with gaming at any time investment purposes only.
or in any capacity, (ii) establish Notwithstanding the foregoing,
and maintain responsible accounting activities which are not deemed to
practices and procedures, be inconsistent with holding voting
(iii) maintain effective control over securities for investment purposes
the financial practices of licensees, only include (i) voting on all
including establishing minimum matters voted on by stockholders,
procedures for internal fiscal (ii) making financial and other
affairs and the safeguarding of inquiries of management of the type
assets and revenues, providing normally made by securities analysts
reliable recordkeeping, and making for informational purposes and not
periodic reports to the applicable to cause a change in its management,
casino gaming authority, (iv) prevent policies or operations, and
cheating and fraudulent practices and (iii) such other activities as the
(v) provide a source of state and
local revenues through taxation and
licensing fees.
<PAGE>
Nevada Commission may determine to similar transaction or (v) fails to
be consistent with such investment pursue all lawful efforts to require
intent. If the stockholder who must such unsuitable person to relinquish
be found suitable is a corporation, his securities including, if
partnership or trust, it must submit necessary, the immediate purchase of
detailed business and financial such securities for cash at fair
information, including a list of market value.
beneficial holders.
New Jersey Gaming Regulation
The Nevada Commission may,
in its discretion, also require the Casino gaming in New Jersey
holder of any debt security issued by is subject to strict compliance with
us or any affiliated company to file the New Jersey Casino Control Act
an application, be investigated and (the "New Jersey Act"), the strict
found suitable to own such debt supervision of the New Jersey Casino
security. If the Nevada Commission Control Commission (the "New Jersey
determines that a person is Commission") and compliance with the
unsuitable to own such debt security, regulations adopted by the New
then pursuant to the Nevada Gaming Jersey Commission. The New Jersey
Control Act, we and our affiliated Act and regulations primarily
Nevada gaming companies can be concern (a) the financial stability
sanctioned, including the loss of our and character of casino operators,
approvals, if without the prior their employees, their security
approval of the Nevada Commission, holders and others financially
we: (i) pay to the unsuitable person interested in casino operations, and
any dividend, interest or any (b) the operating methods--including
distribution whatsoever, the rules of the games and credit
(ii) recognize any voting right by issuance procedures--and the
such unsuitable person in connection financial and accounting procedures
with such securities; (iii) pay the used in connection with casino
unsuitable person remuneration in any operations. The New Jersey gaming
form; or (iv) make any payment to the laws and regulations include
unsuitable person by way of detailed provisions concerning,
principal, redemption, conversion, among other things, (i) the type,
exchange, liquidation or similar manner and number of applications
transaction. and licenses required to conduct
casino gaming and ancillary
Any person who fails or activities, (ii) the licensing,
refuses to apply for a finding of regulation and curricula of gaming
suitability or a license within schools, (iii) the establishment of
30 days after being ordered to do so minimum standards of accounting and
by the Nevada Commission or by the internal control, including the
Chairman of the Nevada Control Board issuance and enforceability of
may be found unsuitable. Any holder casino credit, (iv) the manufacture,
of any equity or debt security found sale, distribution and possession of
unsuitable and who holds, directly or gaming equipment, (v) the rules of
indirectly, any beneficial ownership the games, (vi) the exclusion of
of our debt or equity voting undesirable persons, (vii) the use,
securities beyond such period or regulation and reporting of junket
periods of time as may be prescribed activities, (viii) the possession,
by the Nevada Commission may be sale and distribution of alcoholic
guilty of a gross misdemeanor. We beverages, (ix) the regulation and
could be subject to disciplinary licensing of suppliers to licensed
action if, without the prior approval casino operators, (x) the conduct of
of the Nevada Commission and after we entertainment within licensed casino
receive notice that a person is facilities, (xi) equal employment
unsuitable to be an equity or debt opportunity for employees of
security holder or to have any other licensed casino operators,
relationship with us, ITT Sheraton, contractors for casino facilities
Sheraton Gaming Corporation, Sheraton and the like, (xii) the payment of
Desert Inn Corporation, Caesars, gross revenue taxes and similar fees
Caesars Palace Corporation or Desert and expenses, (xiii) the conduct of
Palace, Inc. or any one of them casino simulcasting and (xiv) the
either (i) pays to the unsuitable imposition and discharge of casino
person any dividend, interest or any reinvestment development
distribution whatsoever, obligations. A number of these
(ii) recognizes any voting right by regulations require practices which
such unsuitable person in connection are different from those in many
with such securities, (iii) pays the casinos elsewhere. As a prerequi-
unsuitable person remuneration in any site to being licensed, a New Jersey
form, (iv) makes any payment to the casino/hotel facility must meet
unsuitable person by way of certain facilities requirements
principal, redemption, conversion, concerning, among
exchange, liquidation or
<PAGE>
other things, the size and number of showing by the Director of the DGE
guest rooms. that there is any cause to believe
that such institutional investor may
Caesars' casino gaming be found unqualified, upon
operations in Atlantic City, New application and for good cause
Jersey are conducted by Boardwalk shown, an institutional investor
Regency Corporation ("BRC"), which is holding either (a) less than 10% of
a wholly owned subsidiary of Caesars our equity securities or (b) debt
New Jersey, Inc. ("CNJ"), which, in securities constituting less than
turn, is a wholly owned subsidiary of 20% of our outstanding debt and less
Caesars, which in turn, is a wholly than 50% of the issue involved shall
owned subsidiary of ITT Sheraton. be granted a waiver of qualification
ITT Sheraton is a wholly owned as to such holdings if (i) such
subsid- iary of ours. As a securities are those of a publicly
prerequisite to BRC holding a traded corporation, (ii) the
license, we, ITT Sheraton, Caesars institutional investor's holdings of
and CNJ have to be approved by the such securities were purchased for
New Jersey Commission due to their investment purposes only and (iii)
corporate relationship to BRC. Thus, upon request by the New Jersey
any holder of a debt or equity Commission, the institutional
security issued by us, ITT Sheraton, investor files with the New Jersey
Caesars or CNJ will have to be found Commission a certified statement
qualified. The qualification that the institutional investor had
requirement of any holder of our debt no intention of influencing or
or equity may be waived based on an affecting our affairs or those of
express finding by the New Jersey ITT Sheraton, Caesars, CNJ or BRC.
Commission, with the consent of the Notwithstanding the foregoing, the
Director of the New Jersey Division institutional investor is permitted
of Gaming Enforcement ("DGE"), that to vote on matters put to the vote
the security holder either (a)(i) is of our outstanding security holders.
not significantly involved in the
activities of BRC, (ii) does not have If an institutional investor
the ability to control us, ITT who has been granted a waiver
Sheraton, Caesars, CNJ or BRC and determines to influence or affect
(iii) does not have the ability to our affairs, the institutional
elect one or more members of the investor must provide to the New
respective boards of directors of us, Jersey Commission not less than 30
ITT Sheraton, Caesars, CNJ or BRC, or days' prior notice of such intent
(b) is an "institutional investor", and the institutional investor must
as such term is defined in the New file with the New Jersey Commission
Jersey Act and regulations; for an application for qualification
purposes of the former, the New before taking any action that may
Jersey Act presumes that any influence or affect our affairs.
non-"institutional investor" security Notwithstanding the foregoing, the
holder who owns or beneficially holds institutional investor is permitted
5% or more of our equity securities, to vote on matters put to the vote
has the ability to control us, ITT of our outstanding security
Sheraton, Caesars, CNJ or BRC, unless holders. If an institutional
such presumption is rebutted by clear investor changes its investment
and convincing evidence. intent, or if the New Jersey
Commission finds reasonable cause to
The New Jersey Act and believe that the institutional
regulations define an "institutional investor may be found unqualified,
investor" as (i) any retirement fund no action other than divestiture
administered by a public agency for shall be taken by such institutional
the exclusive benefit of federal, investor with respect to its
state or local public employees, (ii) security holdings until there has
an investment company registered been compliance with the interim
under the Investment Company Act of casino authorization provisions of
1940, (iii) a collective investment the New Jersey Act, including the
trust organized by banks under Part execution of a trust agreement. We,
Nine of the Rules of the Comptroller ITT Sheraton, Caesars, CNJ and BRC
of the Currency, (iv) a closed end are required to immediately notify
investment trust, (v) a chartered or the New Jersey Commission and the
licensed life insurance company or DGE of any information about, or
property and casualty insurance action of, an institutional investor
company, (vi) banking or other holding equity or debt securities
licensed or chartered lending where such information or action may
institutions, (vii) an investment impact on the eligibility of such
adviser registered under the institutional investor for a
Investment Advisers Act of 1940 or waiver. If the New Jersey
(viii) such other persons as the New Commission finds an institutional
Jersey Commission may determine for
reasons consistent with the policies
of the New Jersey Act. In the
absence of a prima facie
<PAGE>
investor unqualified or if the New of the State of Mississippi which
Jersey Commission finds that, by lie adjacent to the coastline of the
reason of the extent or nature of its three counties bordering the Gulf of
holdings, an institutional investor Mexico. Sheraton Tunica Corporation
is in the position to exercise a ("STC") possesses a license for the
substantial impact on the controlling ownership and operation of the
interests of BRC so that Sheraton Casino in Tunica County,
qualification of the institutional Mississippi issued by the
investor is necessary to protect the Mississippi Gaming Commission (the
public interest, the New Jersey Act "Mississippi Commission") pursuant
vests in the New Jersey Commission to the Mississippi Gaming Control
the power to take all necessary Act (the "Mississippi Act").
action to protect the public
interest, including the power to The Mississippi Act does not
require that the institutional restrict the amount or percentage of
investor submit to qualification and space on a vessel that may be
become qualified under the New Jersey utilized for casino gaming. The
Act. Mississippi Act also does not limit
the number of licenses that the
A holder of an equity or debt Mississippi Commission can grant for
security, including institutional a particular area.
investors, issued by us, ITT
Sheraton, Caesars, CNJ or BRC who is We and STC are required to
required to be found qualified by the submit detailed financial, operating
New Jersey Commission must submit an and other reports to the Mississippi
application for qualification within Commission. Substantially all
30 days after being ordered to do so loans, leases, sales of securities
or divest all security holdings and similar financing transactions
within 120 days after the New Jersey entered into by us or by STC must be
Commission determines such reported to or approved by the
qualification is required. The Mississippi Commission. We and STC
application for qualification must are also required to periodically
include a trust agreement which submit detailed financial and
places the security holder's interest operating reports to the Mississippi
in the Company in trust with a Commission and furnish any other
trustee qualified by the New Jersey information which the Mississippi
Commission. If the security holder Commission may require.
is ultimately found qualified, the
trust agreement is terminated. If Each of the directors,
the security holder is not found officers and certain key employees
qualified or withdraws its of us and STC who are actively and
application before determination, the directly engaged in the
trustee will have all rights of administration or supervision of
ownership pertaining to such holder's casino gaming in Mississippi, or who
securities issued by us, including have any other significant
all voting rights and the power to involvement with the activities of
sell the securities. In any event, STC, must be found suitable and may
the unqualified security holder will be required to be licensed by the
not be entitled to receive in Mississippi Commission. A finding
exchange for its securities issued by of suitability is comparable to
us an amount in excess of the lower licensing, and both require the
of (i) the actual cost the security submission of detailed personal
holder incurred in acquiring the financial information followed by a
securities or (ii) the value of such thorough investigation. An
securities calculated as if the application for licensing may be
investment had been made on the date denied for any cause deemed
the trust became operative. If the reasonable by the Mississippi
security holder is not found Commission. Changes in licensed
qualified, it is unlawful for the positions must be reported to the
security holder to (i) receive any Mississippi Commission. In addition
dividends or interest on such to its authority to deny an
securities, (ii) exercise, directly application for a license, the
or through any trustee or nominee, Mississippi Commission has the
any right conferred by such authority to disapprove a change in
securities, or (iii) receive any corporate position. If the
remuneration in any form from us, ITT Mississippi Commission finds a
Sheraton, Caesars, CNJ or BRC for director, officer or key employee of
services rendered or otherwise. the Company or STC unsuitable for
licensing or unsuitable to continue
Mississippi Gaming Regulation having a relationship with us or
STC, we are or STC is, as the case
Casino gaming in Mississippi
can be legally conducted only on
vessels of a certain minimum size
either in navigable waters of
counties bordering the Mississippi
River or in the waters
<PAGE>
may be, required to suspend, dismiss regulation in Mississippi is similar
and sever all relationships with such to the regulation of casino gaming
person. We and STC have similar in Nevada and New Jersey.
obligations with regard to any person
who fails or refuses to file Windsor, Ontario Gaming Regulation
appropriate applications. Each
gaming employee must obtain a work Casino Windsor Ltd.,
permit. The Mississippi Commission Caesars' unconsolidated one-third
may refuse to issue a work permit to owned Canadian corporation which
a gaming employee (i) if the employee operates the casino in Windsor,
has committed larceny, embezzlement Ontario, Canada, is required to
or any other crime of moral turpitude comply with licensing requirements
or knowingly violated the Mississippi similar to those of Nevada and New
Act or the regulations of the Jersey and is also subject to
Mississippi Commission, or (ii) for operational regulation by the
any other reasonable cause. Province of Ontario.
Mississippi gaming licenses Nova Scotia Gaming Regulation
are not transferable and must be
renewed periodically. The ITT Sheraton's subsidiary,
Mississippi Commission may deny, which both (i) owns and operates the
limit, condition, revoke and/or casino in the City of Halifax, Nova
suspend any license, finding of Scotia, and (ii) operates the casino
suitability or registration, and to in the City of Sydney, Nova Scotia,
fine any person as it deems is required to comply with licensing
reasonable and in the public requirements similar to those of the
interest, subject to the due process Province of Ontario and is also
considerations of notice and an subject to operational regulation by
opportunity for a hearing. The the Province of Nova Scotia.
Mississippi Commission may fine any
licensee or other person who is
subject to the Mississippi Act up to Indiana Gaming Regulation
$100,000 for each violation of the
Mississippi Act which is the subject As a result of our proposed
of an initial complaint and up to casino developments in Harrison
$250,000 for each violation of the County, Indiana, we are or will be
Mississippi Act which is the subject subject to the gaming regulations in
of any subsequent complaint. The force in that state. Indiana
Mississippi Act provides for judicial imposes regulations on gaming
review of certain decisions of the companies similar to, and in the
Mississippi Commission; however, the Company's opinion, no more
filing for such judicial review does restrictive than, the gaming
not automatically stay the action regulations in force in Nevada and
taken by the Mississippi Commission New Jersey.
pending the court's review.
For a more detailed
License fees and taxes, description of casino gaming
computed in various ways depending on regulations see "Governmental
the type of casino gaming involved, Regulation and Related
are payable to the State of Matters--Casino Gaming Regulation"
Mississippi and to the counties and in our Annual Report on Form 10-K.
cities in which the gaming operations
are located. Depending on the Related Provisions of our Restated
particular fee or tax imposed, these Articles of Incorporation
fees and taxes are based on a
percentage of the gross gaming Our Restated Articles of
revenues received by the casino Incorporation provide that (i) all
operation, the number of slot our securities are subject to
machines operated by such casino, or redemption by us to the extent
the number of table games operated by necessary to prevent the loss, or to
such casino. Moreover, several local secure the reinstatement, of any
governments have been authorized to casino gaming license held by us or
impose either additional gross fees any of our subsidiaries within or
on adjusted gross gaming revenues or, without the United States of
alternatively, per person boarding America, (ii) all our securities are
fees and annual license fees based on held subject to the condition that
the number of gaming devices aboard if a holder thereof is found by a
the vessel. License fees paid to the gaming
State of Mississippi are allowed as a
credit against Mississippi state
income taxes.
In all other material
respects, casino gaming
<PAGE>
authority in any such jurisdiction to institution of the particular
be disqualified or unsuitable Offered Securities shall not at
pursuant to any gaming law, such delivery be prohibited under the
holder will be required to dispose of laws of any jurisdiction in the
all our securities held by such United States to which such
holder, and (iii) it will be unlawful institution is subject.
for any such disqualified person to Underwriters will not have any
(a) receive payments of interest or responsibility for the validity of
dividends on any of our securities, such arrangements or the performance
(b) exercise, directly or indirectly, by us or such institutional
any rights conferred by any of our investors.
securities or (c) receive any
remuneration in any form, for Underwriters, dealers and
services rendered or otherwise, from agents that participate in the
the subsidiary that holds the gaming distribution of the Offered
license in such jurisdiction. Securities may be underwriters, and
any discounts or commissions
received by them from us and any
PLAN OF DISTRIBUTION profit on the resale of the
Securities by them may be treated as
We may sell the Offered underwriting discounts and
Securities (i) through underwriters commissions, under the Securities
or dealers; (ii) directly to one or Act of 1933 (the "Act"). Under
more purchasers; or (iii) through agreements which may be entered into
agents. by us, underwriters, dealers and
agents who participate in the
If underwriters are used in distribution of the Offered
the sale, the Offered Securities will Securities may be entitled to
be acquired by the underwriters for indemnification by us against
their own account and may be resold certain civil liabilities, including
in one or more transactions, liabilities under the Act, or to
including negotiated transactions, at contribution with respect to
a fixed public offering price or at payments which the underwriters,
varying prices determined at the time dealers or agents may be required to
of sale. The obligations of the make. Underwriters, dealers and
underwriters to purchase such Offered agents may engage in transactions
Securities will be subject to certain with, or perform services for, us or
conditions. The underwriters will be our subsidiaries in the ordinary
obligated to purchase all the Offered course of their businesses.
Securities of the series offered by a
Prospectus Supplement if any of such
Offered Securities are purchased. LEGAL OPINIONS
Any initial public offering price and
any discounts or concessions allowed The legality of the Offered
or reallowed or paid to dealers may Securities will be passed upon for
be changed from time to time. us by Richard S. Ward, Esq., who is
our Executive Vice President,
Offered Securities may also General Counsel and Corporate
be sold directly by us or through Secretary, or another of our
agents designated by us. Unless lawyers, and for the Underwriters by
indicated in the Prospectus Cravath, Swaine & Moore, New York,
Supplement, any such agent is acting NY. As to matters of Nevada law,
on a best efforts basis for the Mr. Ward may rely on the opinion of
period of its appointment. Roberto Rivera-Soto, Esq., Senior
Vice President and General Counsel
We may authorize agents, of Caesars. Both Mr. Ward and
underwriters or dealers to solicit Mr. Rivera-Soto have interests in
offers by certain institutional certain of our securities. Cravath,
investors to purchase Offered Swaine & Moore acts from time to
Securities providing for payment and time as legal counsel to us on
delivery on a future date specified various matters.
in the Prospectus Supplement.
Institutional investors to which such
offers may be made, when authorized,
include commercial and savings banks,
insurance companies, pension funds,
investment companies, education and
charitable institutions and such
other institutions as may be approved
by us. The obligations of any such
purchasers under such delayed
delivery and payment arrangements
will not be subject to any conditions
except that the purchase by an
<PAGE>
EXPERTS
The audited financial
statements and schedule incorporated
by reference in this Prospectus and
elsewhere in the registration
statement have been audited by Arthur
Andersen LLP, independent public
accountants, as indicated in their
report which accompanies such
statements and schedule, and are
incorporated by reference herein in
reliance upon the authority of said
firm as experts in accounting and
auditing in giving said report.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution.
Estimated expenses payable by the Company in connection with the
offering herein described are as follows:
Printing and engraving $100,000
Accountants' fees 75,000
Legal fees 50,000
Securities and Exchange Commission registration fee 195,015
New York Stock Exchange listing fee 30,000
Fees and expenses relating to Blue Sky qualifications
and legality for investment 10,000
Rating Agency Fee 50,000
Fees and expenses of transfer agent 10,000
Miscellaneous 29,985
--------
Total $550,000
========
All amounts are estimated except for the registration fee
payable to the Securities and Exchange Commission.
Item 15. Indemnification of Directors and Officers.
Any underwriters, dealers or agents who execute any of the
underwriting, selling or other distribution agreements referred to in
Exhibit 1 to this Registration Statement will agree to indemnify the
Company's directors and officers who signed the Registration Statement
against certain liabilities which might arise under the Act from
information furnished to the Company by or on behalf of any such
indemnifying party.
Subsection 1 of Section 78.751 of Chapter 78 of the Nevada
Revised Statutes (the "NGCL"), allows a corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation or
enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceedings, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe his action
was unlawful.
Subsection 2 of Section 78.751 of the NGCL allows a
corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he acted in any of
the capacities set forth above, against expenses, including amounts
paid in settlement and attorneys'
II-1
<PAGE>
fees, actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in accordance
with the standard set forth above, except that no indemnification may
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged by a court of competent jurisdiction
after exhaustion of all appeals therefrom to be liable to the
corporation or for amounts paid in settlement to the corporation
unless and only to the extent that the court in which such action or
suit was brought or other court of competent jurisdiction determines
that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
Section 78.751 of the NGCL further provides that, to the
extent a director or officer of a corporation has been successful on
the merits or otherwise in the defense of any action, suit or
proceeding referred to in subsection (1) and (2), or in the defense of
any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith; that indemnification provided for by
Section 78.751 of the NGCL shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled and that the
scope of indemnification shall continue as to directors, officers,
employees or agents who have ceased to hold such positions, and to
their heirs, executors and administrators. Finally, Section 78.752 of
the NGCL empowers the corporation to purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation
against any liability asserted against him or incurred by him in any
such capacity or arising out of his status as such whether or not the
corporation would have the authority to indemnify him against such
liabilities and expenses.
Article Seventh of the Restated Articles of Incorporation of
the Company and Article 4 of the Amended and Restated By-laws of the
Company provide for indemnification of its officers and directors,
substantially identical in scope to that permitted under Section
78.751 of the NGCL. The By-laws provide, pursuant to Subsection 5 of
Section 78.751 of the NGCL, that the expenses of officers and
directors incurred in defending any action, suit or proceeding,
whether civil, criminal, administrative or investigative, must be paid
by the Company as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an
undertaking by or on behalf of the director or officer to repay all
amounts so advanced if it is ultimately determined by a court of
competent jurisdiction that the officer or director is not entitled to
be indemnified by the Company.
The Company has entered into indemnification agreements with
its directors that require it to indemnify such directors to the
fullest extent permitted by applicable provisions of Nevada law,
provided that any settlement of a third party action against a
director is approved by the Company, and subject to limitations for
actions initiated by the director, penalties paid by insurance, and
violations of Section 16(b) of the 1934 Act and similar laws.
Item 16. Exhibits.
See Exhibit Index elsewhere herein.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(1) To include any prospectus required by Section
10(a)(3) of the Act;
(2) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
Registration Statement; and
II-2
<PAGE>
(3) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that clauses (1) and (2) above do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement;
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered that
remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of
the 1934 Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act, as amended (the "Trust Indenture Act"), in accordance
with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the registrant pursuant to the provisions
described in Item 15 above or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has
duly caused this Amendment No. 1 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
the city and state of New York on this 13th day of November, 1996.
ITT CORPORATION
By: /s/ Jon F. Danski
Jon F. Danski
Senior Vice President and
Controller
(Principal Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints RICHARD S. WARD and
MARGARET M. FORAN, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments to
this registration statement (including post-effective amendments) and
any subsequent registration statement filed by ITT Corporation
pursuant to Rule 462(b) of the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents,
or any of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/Rand V. Araskog* Chairman and Chief November 13, 1996
Rand V. Araskog Executive and Director
(Principal Executive
Officer)
/s/Robert A. Bowman* President and November 13, 1996
Robert A. Bowman Chief Operating
Officer and Director
/s/ Ann N. Reese* Executive Vice President November 13, 1996
Ann N. Reese and Chief Financial
(Principal Financial Officer
Officer)
/s/ Bette B. Anderson* Director November 13, 1996
Bette B. Anderson
II-4
<PAGE>
SIGNATURE TITLE DATE
/s/ Nolan D. Archibald* Director November 13, 1996
Nolan D. Archibald
/s/ Robert A. Burnett* Director November 13, 1996
Robert A. Burnett
/s/ Paul G. Kirk, Jr.* Director November 13, 1996
Paul G. Kirk, Jr.
/s/ Edward C. Meyer* Director November 13, 1996
Edward C. Meyer
/s/Benjamin F. Payton* Director November 13, 1996
Benjamin F. Payton
/s/ Vin Weber* Director November 13, 1996
Vin Weber
/s/ Margita E. White* Director November 13, 1996
Margita E. White
/s/ Kendrick R. Wilson III* Director November 13, 1996
Kendrick R. Wilson III
*By /s/ Margaret M. Foran November 13, 1996
Margaret M. Foran
(Attorney-in-Fact)
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Description Location
Number
1(a) Form of Underwriting Agreement for
Debt Securities to be distributed
in the United States. ((i) An
Underwriting Agreement relating to
securities to be distributed
outside the United States or for
Securities denominated in foreign
currencies or foreign currency
units or (ii) any Selling Agency
or Distribution Agreement with any
Agent will be filed as an exhibit
to a Current Report on Form 8-K
and incorporated herein by reference). Filed herewith
1(b) Form of Underwriting Agreement for
Preferred Stock and Common Stock
to be distributed in the United
States............................... Filed herewith
4(a)(i) Form of Indenture to be entered
into between ITT Corporation and
The First National Bank of
Chicago, as Trustee, with respect to
the Senior Debt Securities........... Filed herewith
(a)(ii) Form of Indenture to be entered
into between ITT Corporation and
The First National Bank of
Chicago, as Trustee, with respect to
the Subordinated Debt Securities..... Filed herewith
(a)(iii) Form of Indenture between ITT
Corporation and one or more Incorporated
banking institutions to be by reference
qualified as Trustee pursuant to to Exhibit 4(a)(i)
Section 305(b)(2) of the Trust or (ii) (except for
Indenture Act of 1939............... name of Trustee)
(a) (iv) Amended and Restated Indenture
between ITT Corporation (formerly
knows as ITT Destinations, Inc.)
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
II-6
<PAGE>
The form or forms of such
Warrant Agreement with
respect to each particular
offering will be filed as
4(b) Form of Warrant Agreement to be an exhibit to a Current
entered into by ITT Corporation Report on Form 8-K and
and the Warrant Agent (including incorporated herein by
form of Warrant Certificate)......... reference
The form or forms of such
Deposit Agreements with
respect to each particular
offering will be filed as
4(c) Form of Deposit Agreement to be an exhibit to a Current
entered into by ITT Corporation Report on Form 8-K and
and the Depositary (including form of incorporated herein by
Depositary Receipt).................. reference
The form or forms of such
Certificate of Designation
with respect to each
particular offering will be
filed as an exhibit to a
Current Report on Form 8-K
4(d) Form of Certificate of and incorporated herein by
Designations relating to Preferred
Stock................................ reference
5 Opinion of Richard S. Ward, Esq.,
Executive Vice President, General
Counsel and Corporate Secretary,
in respect of the legality of the
securities to be registered.......... Filed herewith
12 Computation of ratios of earnings
to fixed charges and dividends for Incorporated by reference
the nine months ended September 30, to Exhibit 12 to our
1996 and for each of the five quarterly report on Form
years ended December 31, 1995........ 10-Q for the quarter ended
September 30, 1996
23 Consents of experts and counsel
(a) Consent of Arthur Andersen LLP.. Filed herewith
(b) Consent of Richard S. Ward, Esq. Included in Exhibit 5
(c) Consent of Roberto Rivera-Soto,
Esq., Senior Vice President
and General Counsel of
Caesars World, Inc.............. Filed herewith
Filed herewith (See pages
24 Power of attorney.................... II-4 and II-5)
II-7
<PAGE>
25(a) Form T-1 Statement of Eligibility
and Qualification under the Trust
Indenture Act of 1939 of The First
National Bank of Chicago, Trustee
under an Indenture pursuant to
which Senior Debt Securities are
to be issued......................... Filed herewith
25(b) Form T-1 Statement of Eligibility
and Qualification under the Trust
Indenture Act of 1939 of The First
National Bank of Chicago, Trustee
under an Indenture pursuant to
which Subordinated Debt Securities
are to be issued..................... Filed herewith
II-8
ITT Corporation
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
ITT Corporation, a Nevada corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the
"Indenture") dated as of , 19 , between the Company
and , as trustee (the "Trustee"). If the firm or
firms listed in Schedule II hereto include only the firm or
firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall
each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
<PAGE>
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the
"Act") and has filed with the Securities and Exchange
Commission (the "Commission") a registration
statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such
registration statement, as so amended, has become
effective. The offering of the Securities is a
Delayed Offering and, although the Basic Prospectus
may not include all the information with respect to
the Securities and the offering thereof required by
the Act and the rules thereunder to be included in
the Final Prospectus, the Basic Prospectus includes
all such information required by the Act and the
rules thereunder to be included therein as of the
Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included
in such registration statement relating to the
Securities and the offering thereof. As filed, such
final prospectus supplement shall include all
required information with respect to the Securities
and the offering thereof and, except to the extent
the Representatives shall agree in writing to a
modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution
Time, shall contain only such specific additional
information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number
of which is set forth in Schedule I
<PAGE>
hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and
sale of the Securities. The Company may have filed
one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will
next file with the Commission either (x) a final
prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration
statement, an amendment to such registration
statement, including the form of final prospectus
supplement. In the case of clause (x), the Company
has included in such registration statement, as
amended at the Effective Date, all information
(other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and
the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects in
the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional
information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any
<PAGE>
material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not
or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each
date after the date hereof on which a document
incorporated by reference in the Registration Statement is
filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in
the case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof
and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to
Rule 424(b)
<PAGE>
after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering,
no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the
Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements,
as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415",
"Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the
Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date of
a registration statement, with the result that, pursuant
to Rules 415 and 430A, all information (other than
Rule 430A Information) with respect to the secu-
<PAGE>
rities so offered must be included in such registration
statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to
Rule 415 which does not commence promptly after the
effective date of a registration statement, with the
result that only information required pursuant to Rule 415
need be included in such registration statement at the
effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set
forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and war-
ranties herein set forth, the Company agrees to 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 I hereto the principal amount of the
Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to
be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities".
If so provided in Schedule I hereto, the Under-
writers are authorized to solicit offers to purchase Secu-
rities from the Company pursuant to delayed delivery con-
tracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as
the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal
amount of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will
enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the
<PAGE>
Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal amount
set forth in Schedule I hereto and the aggregate principal
amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced
by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount
of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion
and so advise the Company in writing; provided, however, that
the total principal amount of Securities to be purchased by
all Underwriters shall be the aggregate principal amount set
forth in Schedule II hereto less the aggregate principal amount
of Contract Securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriters' Securities shall be made on the date and at
the time specified in Schedule I hereto (or such later date not
later than five business days after such specified date as the
Representatives shall designate), which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time
of delivery and payment for the Underwriters' Securities being
herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next day
funds. Delivery of the Underwriters' Securities shall be made
at such location as the Representatives shall reasonably
designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and
in such denominations as the Representatives may request not
less than two full business days in advance of the Closing
Date.
<PAGE>
The Company agrees to have the Underwriters'
Securities available for inspection, checking and packaging by
the Representatives in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause
the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become
effective. Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to
the Basic Prospectus unless the Company has furnished you
a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if
not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the
Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the
withdrawal thereof.
<PAGE>
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in the light of the
circumstances under which they were made not misleading,
or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) prepare and file
with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission
or effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies
of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification
of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required
for the distribution of the Securities, and will arrange
for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I
hereto, the Company will not, without the consent of the
Representatives, offer, sell or contract to
<PAGE>
sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Securities),
except for the issuance of (y) commercial paper or (z)
bank borrowings in the ordinary course of the Company's
business.
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date,
to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the business
day following the day on which the public offering price
was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any
such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the
Representatives the opinion of Margaret M. Foran, Esq.,
Associate General Counsel and Assistant Secretary of the
Company, dated the Closing Date, to the effect that:
(i) the Company and each of its Significant
Subsidiaries (as defined in Rule 1-02(a) of
Regulation S-X promulgated under the Act)
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is
<PAGE>
validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly qualified to do business as a foreign corporation
and is in good standing under the laws of each
jurisdiction which requires such qualification
wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capital-
ization is as set forth in the Final Prospectus; the
Securities conform to the description thereof contained
in the Final Prospectus; and, if the Securities are to
be listed on any securities exchange, authorization
therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution,
or the Company has filed a preliminary listing
application and all required supporting documents with
respect to the Securities with such securities exchange
and such counsel has no reason to believe that the
Securities will not be authorized for listing, subject
to official notice of issuance and evidence of
satisfactory distribution;
(iv) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under
the Trust Indenture Act, and constitutes a legal, valid
and binding instrument enforceable against the Company
in accordance with its terms (subject, to applicable
bankruptcy, reorganization, insolvency, moratorium,
fraudulent transfer or other similar laws affecting
creditors' rights generally from time to time in
<PAGE>
effect and to general principles of equity, including,
without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at
law); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, will
constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with
their terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
transfer or other similar laws affecting creditors'
rights generally from time to time in effect and to
general principles of equity, including, without
limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law);
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a char-
acter required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company fairly summarize such matters;
(vi) the Registration Statement has become
effective under the Act; any required filing of the
Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus, and any
<PAGE>
supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required
by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened,
and the Registration Statement and the Final Prospectus
(other than the financial statements and other
financial and statistical information contained therein
as to which such counsel need express no opinion)
comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(vii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the
Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as
have been obtained;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach
<PAGE>
or violation of, or constitute a default under any law
or the charter or by-laws of the Company or the terms
of any indenture or other agreement or instrument known
to such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order
or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company
or any of its subsidiaries; and
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives 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 Indenture, any
Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives 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.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by a
senior officer of the Company, dated the Closing Date, to
the effect that the signer of such certificate has carefully
examined the Registration Statement, the
<PAGE>
Final Prospectus, any supplement to the Final Prospectus and
this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent finan-
cial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been
no material adverse change in the condition (financial
or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives a letter or letters (which
may refer to letters previously delivered to one or more of
the Representatives), dated as of the Closing Date, in form
and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and
additional information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial
information contained in or incorporated by reference into
the Registration Statement and the Final Prospectus.
In addition, except as provided in Schedule I hereto,
at the Execution Time, Arthur Andersen LLP shall have furnished
to the Representatives a letter or letters,
<PAGE>
dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth
above.
(f) Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a
prospective change, in or affecting the business or
properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Representa-
tives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall
not have been any decrease in the rating of any of the
Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act).
(h) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the Repre-
sentatives may reasonably request.
(i) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by
<PAGE>
the Representatives. Notice of such cancelation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this
Section 5 shall be delivered at the office of Cravath, Swaine &
Moore, counsel for the Underwriters, at Worldwide Plaza, 825
Eighth Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for
all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided,
<PAGE>
however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person
who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page, under the
heading "Underwriting" or "Plan of Distribution" and, if Schedule
I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading
"Delayed Delivery Arrangements" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party
from any obligations
<PAGE>
to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such 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, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in
<PAGE>
connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company and by
the Underwriters from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to
the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters
shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the
statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits
received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the
Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this paragraph (d), 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. For purposes of
this Section 7, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
<PAGE>
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Represenatatives,
by notice given to the Company prior to delivery of and payment
for the Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect
of which on financial markets is such as to make it, in the
judgment of
<PAGE>
the Representatives, impracticable or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered, faxed or
electronically transmitted and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will
be mailed, delivered, faxed or electronically transmitted and
confirmed to it at 1330 Avenue of the Americas, New York, NY
10019-5490, attention of the Corporate Secretary.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New
York.
<PAGE>
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
ITT Corporation
By: ...........................
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By: [LEAD REPRESENTATIVE]
By:
.....................
[Title]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the
Company may offer or sell debt securities issued or
guaranteed by the Company without the consent of
the Representative(s):
Modification of items to be covered by the letter from
Arthur Andersen LLP delivered pursuant to
Section 5(e) at the Execution Time:
<PAGE>
SCHEDULE II
Underwriters Principal Amount
of Securities to
be Purchased
$
--------------------
Total............................ $====================
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from ITT
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"), $
principal amount of the Company's
(the "Securities") offered by the
Company's Prospectus dated , 19 , and related
Prospectus Supplement dated , 19 , receipt of a copy
of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from
, 19 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City
time, on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at
such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities
in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to
the Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of
Securities to be purchased by the undersigned on the Delivery
Date.
The obligation of the undersigned to take delivery of
and make payment for Securities on the Delivery Date, and
<PAGE>
the obligation of the Company to sell and deliver Securitieson
the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective succes-
sors, but will not be assignable by either party hereto without
the written consent of the other.
It is understood that acceptance of this contract and
other similar contracts is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned, as of the date
<PAGE>
first above written, when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
..............................
(Name of Purchaser)
By
................................
(Signature and Title of Officer)
..................................
(Address)
Accepted:
ITT Corporation,
By
......................
(Authorized Signature)
ITT Corporation
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
ITT Corporation, a Nevada corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, the number of shares of [Common Stock,
no par value per share, of the Company ("Common Stock")][$
Preferred Stock, $ par value, of the Company ("Preferred
Stock")], set forth in Schedule I hereto (the "Securities"). If
the firm or firms listed in schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1. Certain terms used in this
Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph
(i) below is applicable and, if the offering of the
Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for use
of Form S-3 under the Securities Act of 1933 (the
"Act") and has filed with the Securities and Exchange
Commission (the "Commission") a registration
statement (the file number of which is set forth in
Schedule I hereto) on such Form,
<PAGE>
including a basic prospectus, for registration under
the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments
thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been
furnished to you. Such registration statement, as
so amended, has become effective. The offering of
the Securities is a Delayed Offering and, although
the Basic Prospectus may not include all the
information with respect to the Securities and the
offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus,
the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be
included therein as of the Effective Date. The
Company will next file with the Commission pursuant
to Rules 415 and 424(b)(2) or (5) a final supplement
to the form of prospectus included in such
registration statement relating to the Securities and
the offering thereof. As filed, such final prospectus
supplement shall include all required information
with respect to the Securities and the offering
thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only
such specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution
Time, will be included or made therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number
of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for
registration under the Act of the offering and sale
of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the
Commission either (x) a final prospectus supplement
relating to the Securities in accordance with
Rules 430A and
<PAGE>
424(b)(1) or (4), or (y) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final
prospectus supplement. In the case of clause (x), the
Company has included in such registration statement,
as amended at the Effective Date, all information
(other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and
the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects in
the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional
information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities
Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary
in order to make the statements therein not misleading;
and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which
<PAGE>
they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each
date after the date hereof on which a document
incorporated by reference in the Registration Statement is
filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in
the case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof
and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to
Rule 424(b) after the Execution Time, together with the
Basic Prospectus or, if, in the case of a Non-Delayed
Offering, no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in
the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements,
as amended at the Execution Time (or, if not effective at
the Execution Time), in the form in which it shall become
effective) and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at
<PAGE>
the Effective Date as provided by Rule 430A. "Rule 415",
"Rule 424", "Rule 430A" and "Regulation S-K" refer to such
rules or regulation under the Act. "Rule 430A Information"
means information with respect to the Securities and the
offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant
to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated there by
reference. A "Non-Delayed Offering" shall mean an offering
of securities which is intended to commence promptly after
the effective date of a registration statement, with the
result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with
respect to the securities so offered must be included in
such registration statement at the effective date thereof.
A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly
after the effective date of a registration statement, with
the result that only information required pursuant to
Rule 415 need be included in such registration statement
at the effective date thereof with respect to the
securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed Offering
shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to
<PAGE>
each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase
price per share set forth in Schedule I hereto [plus accrued
dividends, if any,], the number of shares of the Securities set
forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for
the Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later
than five business days after such specified date as the
Representatives shall designate), which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time
of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made
to the Representatives for the respective accounts of the
several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by certified or
official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds. Delivery of
the Securities shall be made at such location as the
Representatives shall reasonably designate at least one
business day in advance of the Closing Date and payment for the
Securities shall be made at the office specified in Schedule I
hereto. Certificates for the Securities shall be registered in
such names and in such denominations as the Representatives may
request not less than two full business days in advance of the
Closing Date.
The Company agrees to have the Securities available
for inspection, checking and packaging by the Representatives
in New York, New York, not later than 1:00 PM on the business
day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause
the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become
effective. Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to
the Basic Prospectus unless the Company has furnished you
a copy for your review prior
<PAGE>
to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the
Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in the light of the
circumstances under which they were made not misleading,
or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) prepare and file
with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission
or effect such compliance and (ii) supply any supplemented
Prospectus
<PAGE>
to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies
of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and
will maintain such qualifications in effect so long as
required for the distribution of the Securities.
(f) Until the date set forth on Schedule I hereto,
the Company will not, without the prior written consent of
the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or
announce the offering of, [any other shares of Common
Stock or any securities convertible into, or exchangeable
for, shares of Common Stock; provided, however, that the
Company may issue and sell Common Stock pursuant to any
employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the
Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise
of warrants outstanding at the Execution Time.] [(i) any
debt securities issued or guaranteed by the Company or
(ii) shares of any class of capital stock of the Company
(other than the Securities) which is preferred as to the
payment of dividends, or as to the distribution of assets
upon any liquidation or dissolution of the Company, over
shares of any other class of capital stock of the
Company.]
<PAGE>
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase the
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date,
to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the business
day following the day on which the public offering price
was determined, if such determination occurred after 3:00
PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any
such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the
Representatives the opinion of Margaret M. Foran, Esq.,
Associate General Counsel and Assistant Secretary of the
Company, dated the Closing Date, to the effect that:
(i) The Company and each of its Significant
Subsidiaries (as defined in Rule 1-02(a) of
Regulation S-X promulgated under the Act)
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws
<PAGE>
of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to
own its properties and conduct its business as
described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and
is in good standing under the laws of each
jurisdiction which requires such qualification
wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned
subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims,
liens or encumbrances;
(iii) the Company's authorized equity capital-
ization is as set forth in the Final Prospectus; the
capital stock of the Company conforms to the
description thereof contained in the Final Pros-
pectus; [the outstanding shares of Common Stock have
been duly and validly authorized and issued and are
fully paid and nonassessable;] the Securities have
been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly authorized for
listing, subject to official notice of issuance, on
the New York Stock Exchange; the certificates for the
Securities are in valid and sufficient form; and the
holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other
rights to subscribe for the Securities;
(iv) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character
required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract
or other document of a character required to be
described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is
not described or filed as required; and the
statements included or incor-
<PAGE>
porated in the Final Prospectus describing any legal
proceedings or material contracts or agreements
relating to the Company fairly summarize such
matters;
(v) the Registration Statement has become
effective under the Act; any required filing of the
Basic Prospectus, any Preliminary Final Prospectus
and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued, no
proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the
Final Prospectus (other than the financial statements
and other financial and statistical information
contained therein as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the Act
and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein, except such as have been
obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of
the Securities by the Underwriters and
<PAGE>
such other approvals (specified in such opinion) as
have been obtained;
(viii) neither the issue and sale of the Secu-
rities, nor the consummation of any other of the
transactions herein contemplated nor the fulfill-
ment of the terms hereof will conflict with, result
in a breach or violation of, or constitute a default
under any law or the charter or by-laws of the
Company or the terms of any indenture or other
agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a
party or bound or any judgment, order or decree known
to such counsel to be applicable to the Company or
any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or
any of its subsidiaries; and
(ix) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any
jurisdiction other than the State of New York or the
United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives 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
Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as
the Representatives 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.
<PAGE>
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by a
senior officer of the Company, dated the Closing Date, to
the effect that the signer of such certificate has
carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and
this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and
the Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effective-
ness of the Registration Statement has been issued
and no proceedings for that purpose have been
instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent finan-
cial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been
no material adverse change in the condition
(financial or other), earnings, business or
properties of the Company and its subsidiaries,
whether or not arising from transactions in the
ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Arthur Andersen, LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the
Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange
Act and the respective applicable
<PAGE>
published rules and regulations thereunder and additional
information of the type ordinarily included in
accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into
the Registration Statement and the Final Prospectus.
In addition, except as provided in Schedule I hereto,
at the Execution Time, Arthur Andersen, LLP shall have
furnished to the Representatives a letter or letters, dated as
of the Execution Time, in form and substance satisfactory to
the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the
Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective
change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated
by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto).
[(g) Subsequent to the Execution Time, there shall
not have been any decrease in the rating of any of the
Company's debt or equity securities by any "nationally
recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act).]
( ) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any
<PAGE>
of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by
the Representatives . Notice of such cancelation shall be given
to the Company in writing or by telephone or telegraph
confirmed in writing.
The documents required to be delivered by this
Section 5 shall be delivered at the office of Cravath, Swaine &
Moore, counsel for the Underwriters, at Worldwide Plaza, 825
Eighth Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the
sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters
set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase
and sale of the Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the
registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or
<PAGE>
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last
paragraph of the cover page and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such
<PAGE>
failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent
the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such
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, (iii) the
indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
<PAGE>
insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company and by the Underwriters from the offering of the
Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased
by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters shall contribute in
such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company
and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits
received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by
the Company or the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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.
For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of
an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the
<PAGE>
same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph
(d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of
all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters
do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as
set forth in this Section 8, the Closing Date shall be
postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Represen-
tatives, by notice given to the Company prior to delivery of
and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State
authorities or (iii) there shall
<PAGE>
have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or
cancelation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered, faxed or
electronically transmitted and confirmed to them, at the
address specified in Schedule I hereto; or, if sent to the
Company, will be mailed, delivered, faxed or electronically
transmitted and confirmed to it at 1330 Avenue of the Americas,
New York, NY 10019-5490, attention of the Corporate Secretary.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of
New York.
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
<PAGE>
acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
ITT Corporation
By: ...........................
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By: [LEAD REPRESENTATIVE]
By:
.....................
[Title]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Amount and Purchase Price of Securities:
Number of shares:
Purchase price per share:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Date referred to in Section 4(f) after which the Company may
offer or sell additional [Common Stock or securities
convertible into, or exchangeable for, shares of Common Stock]
[(i) any debt securities issued or guaranteed by the Company or
(ii) shares of any class of capital stock of the Company (other
than the Securities) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any
liquidation or dissolution of the Company, over shares of any
other class of capital stock of the Company] without the
consent of the Representative(s):
Modification of items to be covered by the letter from
Arthur Andersen LLP delivered pursuant to
Section 5(e) at the Execution Time:
<PAGE>
SCHEDULE II
Underwriters Number of Shares
to be purchased
Total............................... ---------------
================
ITT CORPORATION,
Issuer
AND
THE FIRST NATIONAL BANK OF CHICAGO,
-----------------------
Indenture
-----------------------
Dated as of November , 1996
-----------------------
Senior Debt Securities
<PAGE>
ITT CORPORATION
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310 (a)(1)............................................ 7.9
(a)(2)............................................ 7.9
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(a)(5)............................................ 7.9
(b)........................7.8 and 7.10(a), (b) and (d)
(c)................................................N.A.
311..............................7.13(a) and (c)(1) and (2)
(b).............................................7.13(b)
(c)................................................N.A.
312..........................................5.1 and 5.2(a)
(b)..............................................5.2(b)
(c)..............................................5.2(c)
313..................................................5.4(a)
(b)(1).............................................N.A.
(b)(2)...........................................5.4(a)
(c)..............................................5.4(c)
(d)..............................................5.4(d)
314.....................................................5.3
(a)(4)..............................................4.7
(b)................................................N.A.
(c)(1).............................................13.6
(c)(2).............................................13.6
(c)(3).............................................N.A.
(d)................................................N.A.
(e)................................................13.6
(f)................................................N.A.
315.....................................................7.1
(b)................................................6.11
(c).................................................7.1
(d).................................................7.1
(e)................................................6.12
316.....................................................8.4
(a)(1)(A)...........................................6.9
(a)(1)(B)..........................................6.10
(a)(2).............................................N.A.
(b).................................................6.7
(c).................................................8.1
317.....................................................6.2
(b).................................................4.4
318...................................................13.11
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER.............................. 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined.................. 1
SECTION 1.2. Other Defined Terms.................... 11
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally........................ 12
SECTION 2.2. Form of Trustee's Certificate of
Authentication....................... 12
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...................... 13
ARTICLE THREE
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series... 14
SECTION 3.2. Form and Denominations................. 17
SECTION 3.3. Authentication, Dating and Delivery
of Securities........................ 18
SECTION 3.4. Execution of Securities and Coupons.... 20
SECTION 3.5. Certificate of Authentication.......... 20
SECTION 3.6. Registration; Registration of
Transfer and Exchange................ 20
SECTION 3.7. Mutilated, Defaced, Destroyed,
Lost and Stolen Securities or
Coupons.............................. 23
SECTION 3.8. Payment of Interest; Interest Rights
Preserved............................ 24
SECTION 3.9. Cancellation of Securities;
Destruction Thereof.................. 25
SECTION 3.10. Temporary Securities................... 26
<PAGE>
SECTION 3.11. Computation of Interest............... 26
SECTION 3.12. Currency and Manner of Payments in
Respect of Securities............... 27
SECTION 3.13. Compliance with Certain Laws and
Regulations......................... 31
ARTICLE FOUR
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities.................. 32
SECTION 4.2. Offices or Agency...................... 32
SECTION 4.3. Appointment To Fill a Vacancy in
Office of Trustee.................... 33
SECTION 4.4. Paying Agents.......................... 34
SECTION 4.5. Limitation on Sale and Lease-Backs..... 35
SECTION 4.6. Limitations on Liens................... 35
SECTION 4.7. Certificates to Trustee................ 38
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...................... 39
SECTION 5.2. Preservation and Disclosure of
Securityholders Lists................ 40
SECTION 5.3. Reports by the Issuer.................. 41
SECTION 5.4. Reports by the Trustee................. 42
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........... 44
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt................ 48
<PAGE>
SECTION 6.3. Application of Proceeds................. 50
SECTION 6.4. Suits for Enforcement................... 51
SECTION 6.5. Restoration of Rights on Abandonment
of Proceedings........................ 51
SECTION 6.6. Limitations on Suits by Securityholders 52
SECTION 6.7. Unconditional Right of Securityholders
To Institute Certain Suits............ 52
SECTION 6.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................... 53
SECTION 6.9. Control by the Holders of Securities.... 53
SECTION 6.10. Waiver of Past Defaults................. 54
SECTION 6.11. Trustee To Give Notice of Default,
But May Withhold in Certain
Circumstances......................... 55
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs.............. 55
SECTION 6.13. Judgment Currency....................... 56
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the
Trustee; During Default;
Prior to Default...................... 56
SECTION 7.2. Certain Rights of the Trustee........... 58
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof....... 59
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc...................... 59
SECTION 7.5. Moneys Held by Trustee.................. 59
SECTION 7.6. Compensation and Indemnification of
Trustee and Its Prior Claim........... 60
SECTION 7.7. Right of Trustee To Rely on
Officers' Certificate, etc............ 60
SECTION 7.8. Qualification of Trustee;
Conflicting Interests................. 61
SECTION 7.9. Persons Eligible for Appointment as
Trustee............................... 61
SECTION 7.10. Resignation and Removal; Appointment
of Successor Trustee.................. 61
SECTION 7.11. Acceptance of Appointment by
Successor Trustee..................... 63
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee..... 64
<PAGE>
SECTION 7.13. Preferential Collection of Claims
Against the Issuer.................... 65
SECTION 7.14. Authenticating Agent.................... 69
ARTICLE EIGHT
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders....................... 71
SECTION 8.2. Proof of Execution of Instruments by
Holders of Securities................. 71
SECTION 8.3. Holders To Be Treated as Owners......... 72
SECTION 8.4. Securities Owned by Issuer Deemed
Not Outstanding....................... 72
SECTION 8.5. Right of Revocation of Action Taken..... 73
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings..................... 73
SECTION 9.2. Call of Meetings by Trustee.............. 74
SECTION 9.3. Call of Meetings by Issuer or Holders.... 74
SECTION 9.4. Qualifications for Voting................ 74
SECTION 9.5. Regulations.............................. 75
SECTION 9.6. Voting................................... 76
SECTION 9.7. No Delay of Rights by Meeting............ 76
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent
of Securityholders..................... 76
SECTION 10.2 Supplemental Indentures with Consent
of Securityholders..................... 78
SECTION 10.3. Notice of Supplemental Indenture......... 80
SECTION 10.4. Effect of Supplemental Indenture......... 80
SECTION 10.5. Documents To Be Given to Trustee......... 80
<PAGE>
SECTION 10.6. Notation on Securities and Coupons in
Respect of Supplemental Indentures...... 81
SECTION 10.7. Issuance of Securities by Successor
Corporation............................. 81
ARTICLE ELEVEN
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell
on Certain Terms........................ 82
SECTION 11.2. Opinion of Counsel To Be Given to
Trustee................................. 83
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities
of Any Series............................ 83
SECTION 12.2. Satisfaction and Discharge of Indenture.... 85
SECTION 12.3. Application of Trust Money................. 86
SECTION 12.4. Repayment of Moneys Held by Paying Agent... 86
SECTION 12.5. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years..... 86
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from
Individual Liability..................... 87
SECTION 13.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders... 87
SECTION 13.3. Successors and Assigns of Issuer Bound
by Indenture............................. 87
SECTION 13.4. Notices to Holders; Waiver................. 87
SECTION 13.5. Addresses for Notices...................... 88
SECTION 13.6. Officers' Certificates and Opinions of
Counsel; Statements To Be Contained
Therein.................................. 89
<PAGE>
SECTION 13.7. Cross References........................... 90
SECTION 13.8. Legal Holidays............................. 90
SECTION 13.9. Moneys of Different Currencies To Be
Segregated............................... 90
SECTION 13.10.Payment To Be in Proper Currency........... 90
SECTION 13.11.Conflict of Any Provision of Indenture
with Trust Indenture Act................. 91
SECTION 13.12.New York Law To Govern..................... 91
SECTION 13.13.Counterparts............................... 91
SECTION 13.14.Effect of Headings......................... 91
SECTION 13.15.Separability Clause........................ 92
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article................... 92
SECTION 14.2. Notice of Redemption; Selection
of Securities............................ 92
SECTION 14.3. Payment of Securities Called for
Redemption............................... 94
SECTION 14.4. Exclusion of Certain Securities from
Eligibility for Selection for Redemption 95
SECTION 14.5 Redemption Pursuant to Gaming Laws ........ 95
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.1. Applicability of Article................... 96
SECTION 15.2. Satisfaction of Mandatory Sinking Fund
Payments with Securities................. 97
SECTION 15.3. Redemption of Securities for Sinking Fund.. 97
ARTICLE SIXTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 16.1 Applicability of Article................... 100
SECTION 16.2. Right of Holders to Convert Securities..... 100
SECTION 16.3. Issuance of Shares of Underlying Stock on
Conversion............................... 101
SECTION 16.4. No Payment or Adjustment for Interest or
Dividencs................................ 102
<PAGE>
SECTION 16.5 Adjustment on Conversion Price............. 102
SECTION 16.6 No Fractional Shares to be Issued.......... 113
SECTION 16.7 Effect of Reclassification, Consolidation,
Merger or Sale........................... 114
SECTION 16.8. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action.. 115
SECTION 16.9. Covenant to Reserve Shares for Issuance on
Conversion of Securities................. 116
SECTION 16.10.Compliance with Governmental Requirements.. 116
SECTION 16.11.Payment of Taxes upon Certificates for
Shares Issued upon Conversion............ 116
SECTION 16.12.Trustee's Duties with Respect to Conversion
Provisions............................... 117
<PAGE>
INDENTURE, dated as of November , 1996, between ITT
Corporation, a Nevada corporation (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.
All things necessary to make this Indenture 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 consideration,
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 between 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 are referred to in the
Trust Indenture Act or by Commission rule under the Trust
<PAGE>
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, 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
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. 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, warrants,
options, participations or other equivalents (however designated) of
corporate stock.
<PAGE>
"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 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 Exchange Act, 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 of the Issuer;
(v) the investment of the Issuer and its Restricted
Subsidiaries in any Subsidiary of the Issuer which is not a
Domestic Subsidiary;
<PAGE>
(vi) deferred income and deferred liabilities; and
(vii) other items deductible under generally accepted
accounting principles.
"Conversion Price": See Section 17.2.
"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 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.
"Currency Conversion Date": See Section 3.12(e).
"Currency Conversion Rate": See Section 6.13.
"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 Exchange Act 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.
<PAGE>
"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 Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Officer's Certificate" means 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, signed by the treasurer or any
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.
"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 and regulations 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
<PAGE>
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) 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 a particular Registered Security is registered
in the Securities Register; with respect 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.
<PAGE>
"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 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" means, when used with respect to any Security, 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 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 or
entity 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 or entity, as applicable, has its
principal office) immediately preceding the applicable payment date.
"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
<PAGE>
other Security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding" means (except as otherwise provided in
Section 7.8 and subject to the provisions of Section 8.4), when used
with reference to Securities, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore cancelled 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;
(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); and
(d) Securities which have been converted into Capital
Stock in accordance with Article Seventeen hereof, if the terms
of such Securities provide for convertibility pursuant to
Section 3.1.
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.
"Overdue Rate" means, with respect to any series of Securities,
the rate designated as such in or pursuant to the resolution of the
Board of Directors or the
<PAGE>
supplemental indenture, as the case may be, 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, limited liability
company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of any series, 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" means, when used with respect to any Security
to be redeemed, that date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any
Security to be redeemed, the price, in 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" means, when used with respect to the
Trustee, 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" means, when used with respect to any Security
or any installment of interest thereon, 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.
"Securities Act" means the Securities Act of 1933, as amended.
"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.
<PAGE>
"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 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 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 Sec- tion 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 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 any 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" when used with respect to the Issuer 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.
<PAGE>
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, all as determined by the
officers executing 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.
[NAME OF TRUSTEE]
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
<PAGE>
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:
[NAME OF TRUSTEE]
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 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 Exchange Act or other applicable statute
or regulation and a successor Depositary for such series is not
appointed by the Issuer within 90 days after the
<PAGE>
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),
(i) such Global Security shall be cancelled 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 or inform 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.
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);
<PAGE>
(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 (including, without limitation, the
type of consideration to be paid by the Issuer) 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 any
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 and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
<PAGE>
(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 Regis- tered 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;
<PAGE>
(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;
(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, and
premium, if any, or interest, if any, 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) whether the Securities of such series will be
convertible into any class or combination of classes of
Capital Stock, and the terms and conditions upon which such
conversion shall be effected (including, without limitation,
the Conversion Price, the conversion period, any provision
which gives the Issuer the right, at its option, to pay to a
Holder of the Securities a specified cash amount in lieu of
Capital Stock issuable upon such conversion, and any other
provisions in addition to or in lieu of those set forth in
this Indenture relative to such obligation);
(22) any trustees, authenticating or paying agents,
warrant agents, conversion agents, transfer agents or
registrars or any other agents 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;
and
(23) any other terms of such series (which terms shall
not be incon- sistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to 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.
<PAGE>
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:
(1) a Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken
pursuant to such Board Resolution, in each case certified by
the secretary or an assistant secretary of the Issuer;
(2) an executed supplemental indenture, if any,
relating thereto;
(3) 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
(4) an Opinion of Counsel, which shall state
(a) 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 (1) above or by a supplemental indenture
delivered to the Trustee pursuant to subparagraph (2)
above as provided by Section 3.1 and in accordance with
the provisions of this Indenture;
(b) 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, reorganization and other laws
<PAGE>
of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles;
(c) 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;
(d) 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;
(e) 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
(f) 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 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(3) 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.
<PAGE>
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 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 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
<PAGE>
denominations. Securities to be exchanged shall be surrendered
together, in the case of Coupons 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 for Registered Securities between such dates shall be
surren- dered without the Coupon relating to such Interest
Payment Date.
<PAGE>
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.
<PAGE>
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 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 cancelation 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
fifteenth day of a calendar month and shall mean the close of
business on the fifteenth 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
New York Business Day. 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
<PAGE>
defaulted interest shall be paid by the Issuer, at its election
in each case, as provided in clause (1) or (2) below:
(1) 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.
(2) 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,
conversion, 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, conversion agent
or any Securities Registrar, shall be delivered to the Trustee
for cancellation or, if surrendered to the Trustee, shall be
cancelled 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 cancelled
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
<PAGE>
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 Unregis-
tered Securities, with or without one or more Coupons attached.
Without 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.
<PAGE>
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:
(1) Except as provided in subparagraph (a)(2) 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.
(2) 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:
(1) 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
<PAGE>
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.
(2) 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 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
<PAGE>
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 "Currency 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 para- graph (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) above 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.
(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
<PAGE>
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
Currency 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 Currency Conversion Date. If
after the Currency 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 Currency 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 Currency
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
Compo- nent 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
<PAGE>
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 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 Currency
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 Currency
Conversion Date and the Specified Amount of each Component
Currency on the Currency 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
<PAGE>
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.
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 so long as any of the Securities of such
series remain outstanding:
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, and where Securities of each series that is
convertible may be presented for
<PAGE>
conversion, 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
Corporate Trust Office of the Trustee, or, if the Corporate Trust
Office of the Trustee is not located in the Borough of Manhattan,
The City of New York, New York, 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 Sec- tion 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 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
<PAGE>
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;
(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
<PAGE>
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 Section 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 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 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 (l) 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
<PAGE>
by such mortgage, pledge or other lien, equally and ratably with
any and all other indebtedness thereby 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 com- pensation or insurance premiums, or in
connection with tenders, bids, contracts (other than
contracts for the payment of money) or leases;
(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
<PAGE>
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;
(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 manufacturing or
processing operations of the Issuer or any Restricted
<PAGE>
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 accounting principles 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
<PAGE>
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 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,
<PAGE>
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.
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 in its capacity
as Securities Registrar for such series, and (3) filed with it
within two preceding years pursuant to the provisions of
paragraph (2) 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 (2) 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, at 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
<PAGE>
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 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
accounta- ble 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
<PAGE>
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 Exchange Act; 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
Exchange Act 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;
(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
<PAGE>
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;
(vi) any additional issuance 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.
<PAGE>
(c) Reports pursuant to this Section 5.4 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.
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
<PAGE>
(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 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
<PAGE>
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 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.
<PAGE>
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 the Indenture,
other than the non-payment 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 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
<PAGE>
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
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.
<PAGE>
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.
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
<PAGE>
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 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
<PAGE>
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 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 to
provide for the
<PAGE>
conversion of Securities pursuant to Article Seventeen hereof if
the terms of such Securities provide for such conversion pursuant
to Section 3.1 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 the right, which is also
absolute and unconditional, of any Holder to require conversion
of his Securities pursuant to Article Seventeen hereof if the
terms of such Securities provide for convertibility pursuant to
Section 3.1, 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 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
<PAGE>
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 Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
<PAGE>
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.
<PAGE>
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 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 Currency 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 Currency Conversion Rate and
the Currency 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
Currency 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 Currency 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, "Currency 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
<PAGE>
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.
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
<PAGE>
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.
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;
<PAGE>
(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
(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
<PAGE>
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, without limitation, 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, without limitation, the costs and
expenses of defending itself against or investigating any 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.
<PAGE>
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 penultimate 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 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 7.9, 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 7.9, 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
<PAGE>
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, exe- cuted 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 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, one copy
of which instrument shall be delivered to the Trustee so removed
and one copy
<PAGE>
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.
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
<PAGE>
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
<PAGE>
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 in the name of the successor
trus- tee; 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 7.13, 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 7.13, 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 7.13):
(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 7.13
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
<PAGE>
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;
(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
<PAGE>
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 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.
<PAGE>
(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;
(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)
<PAGE>
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 Corporate Trust
Office of the Trustee is not located in the Borough of 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
<PAGE>
combined capital and surplus of at least $10,000,000 and subject
to supervision or examination by Federal or state authority. If
the Corporate Trust Office of the Trustee is not located 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 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.
<PAGE>
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 8.1
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.
<PAGE>
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 Registrar for such series; the
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
<PAGE>
Issuer or any other obligor on 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 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 Eight, 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
<PAGE>
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
(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 an 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, The City of New York, 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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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 the
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;
(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;
<PAGE>
(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.
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
<PAGE>
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 any 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) alter or impair the right of any holder to
convert Securities of any series the terms of which provide for
conversion, at the rate and upon the terms provided in the
Indenture, or (d) subordinate the indebtedness evidenced by the
Securities to any indebtedness of the Company , or (e) 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.
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
<PAGE>
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 Ten 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 OR SALE
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, (a) that 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) that, 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 11.1. 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 11.1, the corporation formed by such consolidation or
into which the Issuer shall have been
<PAGE>
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
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 11.1, 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
(1) either:
(A) all Outstanding Securities of such series
theretofore authen- ticated and delivered and the
Coupons, if any appertaining thereto (other than
(i) 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
(ii) 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
<PAGE>
(B) with respect to all Outstanding Securities of
such series and the Coupons, if any, appertaining
thereto, described in (A) above not theretofore
delivered to the Trustee for cancellation:
(i) 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 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
(ii) 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.
(2) 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;
(3) 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
(4) 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
<PAGE>
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(1)(b); 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,
(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 (d) any obligation to convert into shares of
Capital Stock the Securities of any series, the terms of which
provide for conversion; and provided further that in the event a
petition for relief under the Bankruptcy Reform Act of 1978 or a
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(1)(B)
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 non-converted 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
<PAGE>
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 l2.1
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 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
<PAGE>
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
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, (1) if any
of the Securities affected by such event
<PAGE>
are Fully Registered 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 as their names and addresses appear in the
Securities Register within the time prescribed and (2) if any of
the Securities affected by such event are Unregistered
Securities, or Coupon Securities, such notice shall be suffi-
ciently 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: Corporate Secretary, 1330 Avenue of the Americas,
New York, New York 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
<PAGE>
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
<PAGE>
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
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 purport 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 or 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
<PAGE>
any payment of principal of, 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 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.
<PAGE>
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 Fourteen shall be applicable to the Securities of
any series which are redeemable before their maturity or 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.
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
appli- cable Securities, that, unless otherwise specified in such
notice, Coupon Securities of
<PAGE>
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, the
current conversion price or rate, if applicable, that the right
of the Holder to convert Securities called for redemption shall
terminate at the close of business on the Redemption Date (or
such other date as may be specified as contemplated by
Section 3.1 for Securities of any series), if applicable, that
Holders who want to convert Securities called for redemption must
satisfy the requirements for conversion contained in such
Securities, if applicable, 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 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 New York Business Day 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 (other than any Securities
called for redemption on such date which have been converted
prior to the date of such deposit) 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.
<PAGE>
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.
For the purpose of such selection in case of redemption of
less than all of the Securities of any series, the Trustee and
the Issuer shall have the option to treat as Outstanding
Securities any Securities of such series which are surrendered
for conversion after the fifteenth day immediately preceding the
mailing of notice of such redemption and need not treat as
Outstanding Securities any Securities authenticated and delivered
during such period in exchange for the unconverted portion of any
Securities converted in part during such period.
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 and the right to convert such
Securities or portions thereof, if the terms of such Securities
provide for conversion pursuant to Section 3.1, shall terminate
at the close of business on the Redemption Date or such other day
as may be specified as contemplated by Section 3.1 for Securities
of such series. 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 Paving 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 of 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.
If any Security called for redemption pursuant to
Section 14.1 is converted pursuant to Article Seventeen, any
monies deposited with the Trustee for the purpose of paying or
redeeming any such Security shall be promptly paid to the Issuer.
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 hypothe- cated 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
<PAGE>
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 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 Fifteen 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
<PAGE>
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, (a) 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 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 or
(b) receive credit for any Securities which have been converted
pursuant to the terms of such Securities; 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 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
<PAGE>
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 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
<PAGE>
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 15.3.
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
Fifteen. Except as aforesaid, any moneys (in the currency or
currency unit described in the 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 15.3.
<PAGE>
ARTICLE SIXTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 16.1. Applicability of Article. Securities of any
series which are convertible into Capital Stock at the option of
the Holders thereof shall be convertible in accordance with their
terms and (unless otherwise specified in one or more indentures
supplemental hereto or in a resolution of the Board of Directors
as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article. Each reference in this Article
Seventeen to "a Security" or "the Securities" refers to the
Securities of the particular series that is convertible into
Capital Stock. Each reference in this Article to "Underlying
Stock" into which Securities of any series are convertible refers
to the class of Capital Stock into which the Securities of such
series are convertible in accordance with their terms (as
specified as contemplated by Section 3.1). If more than one
series of Securities with conversion privileges are Outstanding
at any time, the provisions of this Article Seventeen shall be
applied separately to each such series.
SECTION 16.2. Right of Holders to Convert Securities.
Subject to and upon compliance with the terms of the Securities
and this Article Seventeen, at the option of the Holder thereof,
any Security of any series of any authorized denomination, or any
portion of the principal amount thereof which is $1,000 or any
integral multiple of $1,000, may, at any time during the period
specified in the Securities of such series, be converted into
duly authorized, validly issued, fully paid and nonassessable
shares of the class, or combination of classes, of Underlying
Stock, as specified in such Security, at the conversion rate for
each $1,000 principal amount of Securities in effect on the
conversion date, or if such Security or portion thereof shall
have been called for redemption, then in respect of such Security
or portion thereof until and including, but not after (unless the
Issuer shall default in payment due upon the redemption thereof)
the close of business on the date fixed for redemption except
that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such option to convert
shall terminate upon receipt of written notice of the exercise of
such option to redeem, or if an adjustment in the Conversion
Price has taken place pursuant to the provisions of Section 16.5,
then at the applicable conversion rate as so adjusted, upon
surrender of the Security or Securities, the principal amount of
which is so to be converted, to the Issuer at any time during
usual business hours at the office or agency to be maintained by
it in accordance with the provisions of Section 4.2 accompanied
by a written notice of election to convert as provided in
Section 16.3 and, if so required by the Issuer and the Trustee,
by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by the
Holder or his attorney duly authorized in writing. All Securities
surrendered for conversion shall, if surrendered to the Issuer or
any conversion agent, be delivered to the Trustee for
cancellation and canceled by it, or shall, if surrendered to the
Trustee, be canceled by it, as provided in Section 3.9.
<PAGE>
The initial conversion price (the "Conversion Price") in
respect of a series of Securities shall be as specified in the
Securities of such series. The Conversion Price will be subject
to adjustment on the terms set forth in Section 16.5 or such
other or different terms, if any, as may be specified pursuant to
Section 3.1 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of it.
SECTION 16.3. Issuance of Shares of Underlying Stock on
Conversion. As promptly as practicable after the surrender, as
herein provided, of any Security or Securities for conversion,
the Issuer shall deliver or cause to be delivered at its said
office or agency to or upon the written order of the Holder of
the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly
issued, fully paid and nonassessable shares of Underlying Stock
into which such Security or Securities may be converted in
accordance with the terms thereof and the provisions of this
Article Seventeen. Prior to the delivery of such certificate or
certificates, the Issuer shall require a written notice at its
said office or agency from the Holder of the Security or
Securities so surrendered stating that the Holder irrevocably
elects to convert such Security or Securities, or, if less than
the entire principal amount thereof is to be converted, stating
the portion thereof to be converted. Such notice shall also state
the name or names (with address and social security or other
taxpayer identification number) in which said certificate or
certificates are to be issued. Such conversion shall be deemed to
have been made at the time that such Security or Securities shall
have been surrendered for conversion and such notice shall have
been received by the Issuer or the Trustee, the rights of the
Holder of such Security or Securities as a Holder shall cease at
such time, the person or persons entitled to receive the shares
of Underlying Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become the
record holder or holders of such shares of Underlying Stock at
such time and such conversion shall be at the Conversion Price in
effect at such time. In the case of any Security of any series
which is converted in part only, upon such conversion, the Issuer
shall execute and the Trustee or any Authenticating Agent shall
authenticate and deliver to the Holder thereof, as requested by
such Holder, a new Security or Securities of such series of
authorized denominations in aggregate principal amount equal to
the unconverted portion of such Security.
If the last day on which a Security may be converted is not
a Business Day in a place where the conversion agent for the
applicable series of Securities is located, the Security may be
surrendered to that conversion agent on the next succeeding day
that is a Business Day with the same effect as if surrendered on
such last day.
The Issuer will not be required to deliver certificates for
shares of Underlying Stock upon conversion while its stock
transfer books are closed for a meeting of
<PAGE>
shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Underlying Stock shall be
delivered as soon as the stock transfer books shall again be
opened.
SECTION 16.4. No Payment or Adjustment for Interest or
Dividends. Unless otherwise specified as contemplated by Section
3.1 for Securities of such series, Securities surrendered for
conversion during the period from the close of business on any
regular record date (or special record date for payment of
defaulted interest) next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (except
Securities called for redemption on a redemption date within such
period) when surrendered for conversion must be accompanied by
payment of an amount equal to the interest thereon which the
Holder is to receive on such Interest Payment Date. Payment of
interest shall be made, as of such Interest Payment Date or such
date, as the case may be, to the Holder of the Securities as of
such regular or special record date, as applicable. Except where
Securities surrendered for conversion must be accompanied by
payment as described above, no interest on converted Securities
will be payable by the Issuer on any Interest Payment Date
subsequent to the date of conversion. No other payment or
adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any
Original Issue Discount Security, the fixed number of shares of
Underlying Stock into which such Security is convertible
delivered by the Issuer to the Holder thereof shall be applied,
first, to pay the accrued original issue discount attributable to
the period from the date of issuance to the date of conversion of
such Security, and, second, to pay the balance of the principal
amount of such Security.
SECTION 16.5. Adjustment of Conversion Price. Unless
otherwise specified as contemplated by Section 3.1 for Securities
of such series, the Conversion Price shall be adjusted from time
to time by the Issuer as follows:
(a) If the Issuer shall hereafter pay a dividend or
make a distribution to substantially all holders of the
outstanding shares of Underlying Stock in shares of such
Underlying Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the
determination of stockholders entitled to receive such dividend
or other distribution shall be reduced to an amount equal to the
product of (x) such Conversion Price and (y) a fraction of which
(i) the numerator shall be the number of shares of Underlying
Stock outstanding at the close of business on the Record Date (as
defined in Section 16.5(g)) fixed for such determination and
(ii) the denominator shall be the sum of (A) such number of
shares and (B) the total number of shares constituting such
dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day
following such Record Date. If any dividend or distribution of
the type described in this Section 16.5(a) is declared but not so
paid or made, the Conversion Price shall again
<PAGE>
be adjusted to the Conversion Price which would then be in effect
if such dividend or distribution had not been declared.
(b) If the Issuer shall issue rights or warrants to
substantially all holders of the outstanding shares of Underlying
Stock entitling them to subscribe for or purchase shares of such
Underlying Stock at a price per share less than the Current
Market Price (as defined in Section 16.5(g)) on the Record Date
fixed for the determination of stockholders entitled to receive
such rights or warrants, the Conversion Price shall be adjusted
so that the same shall be an amount equal to the product of (x)
the Conversion Price in effect at the opening of business on the
date after such Record Date and (y) a fraction of which (i) the
numerator shall be the sum of (A) the number of shares of
Underlying Stock outstanding at the close of business on such
Record Date plus (B) the number of shares which the aggregate
exercise price of the total number of rights or warrants so
distributed would purchase at such Current Market Price, and of
which (ii) the denominator shall be the sum of (A) the number of
shares of Underlying Stock outstanding on the close of business
on such Record Date plus (B) the total number of additional
shares of Underlying Stock to be issued upon exercise of the
rights or warrants so distributed. Such adjustment shall become
effective immediately after the opening of business on the day
following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that
shares of Underlying Stock are not delivered pursuant to such
rights or warrants, upon the expiration or termination of such
rights or warrants, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares
of Underlying Stock actually delivered. If such rights or
warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect
if such date fixed for the determination of stockholders entitled
to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Underlying Stock at less than
such Current Market Price, and in determining the aggregate
offering price of such shares of Underlying Stock, there shall be
taken into account any consideration received for such rights or
warrants, with the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(c) If the Issuer shall (1) subdivide the outstanding
shares of Underlying Stock into a greater number of shares or
(2) combine or reclassify (other than a reclassification to which
Section 16.7 applies) the outstanding shares of Underlying Stock
into a smaller number of shares, the Conversion Price in effect
immediately prior to such action shall be adjusted so that the
Holder of any Security of such series thereafter surrendered for
conversion shall be entitled to receive the number of shares of
Underlying Stock that he would have owned immediately
<PAGE>
following such action had such Security of such series been
converted immediately prior thereto. An adjustment made pursuant
to this Section 16.5 (c) shall become effective immediately after
the opening of business on the day following the day upon which
such subdivision, reclassification or combination becomes
effective.
(d) If the Issuer shall, by dividend or otherwise,
distribute to substantially all holders of Underlying Stock
shares of any other class of Capital Stock of the Issuer (other
than any dividends or distributions to which Section 16.5(a)
applies) or evidences of its indebtedness, cash or other assets
(including securities, but excluding any rights or warrants of a
type referred to in Section 16.5(b) and dividends and
distributions paid exclusively in cash and excluding any Capital
Stock, evidences of indebtedness, cash or assets distributed upon
a merger or consolidation to which Section 16.7 applies) (the
foregoing hereinafter in this Section 16.5(d) called the
"Distributed Securities"), then, in each such case, the
Conversion Price shall be reduced so that the same shall be an
amount equal to the product of (x) the Conversion Price in effect
immediately prior to the close of business on the Record Date (as
defined in Section 16.5(g)) with respect to such distribution and
(y) a fraction of which (i) the numerator shall be the result of
(A) the Current Market Price (determined as provided in Section
16.5(g)) on such date minus (B) the fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) on such date
of the portion of the Distributed Securities so distributed
applicable to one share of Underlying Stock and (ii) the
denominator shall be such Current Market Price, such reduction to
become effective immediately prior to the opening of business on
the day following the Record Date; provided, however, that in the
event the then fair market value (as so determined) of the
portion of the Distributed Securities so distributed applicable
to one share of Underlying Stock is equal to or greater than the
Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder
of Securities of such series shall have the right to receive upon
conversion of a Security of such series (or any portion thereof)
the amount of Distributed Securities such Holder would have
received had such Holder converted such Security of such series
(or portion thereof) immediately prior to such Record Date. If
such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes
of this Section 16.5(d) by reference to the actual or when issued
trading market for any securities comprising all or part of such
distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market
Price pursuant to Section 16.5(g) to the extent possible.
<PAGE>
Rights or warrants distributed by the Issuer to
substantially all holders of shares of Underlying Stock entitling
the holders thereof to subscribe for or purchase shares of any
class of the Issuer's Capital Stock (either initially or under
certain circumstances), which rights or warrants until the
occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Underlying
Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of shares of Underlying Stock, shall
be deemed not to have been distributed for purposes of this
Section 16.5(d) (and no adjustment to the Conversion Price under
this Section 16.5(d) shall be required) until the occurrence of
the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate
adjustment to the Conversion Price under this Section 16.5(d)
shall be made. If any such rights (including the Rights (as
defined below)) or warrants, including rights or warrants
distributed prior to the date of this Indenture (including the
Rights), shall become exercisable to purchase different
securities, evidences of indebtedness or other assets upon the
occurrence of certain subsequent events, then the occurrence of
each such event shall be deemed to be the date of issuance and
record date with respect to new rights or warrants (and a
termination or expiration of the existing rights or warrants
without exercise by the holder thereof). In addition, in the
event of any distribution (or deemed distribution) of rights or
warrants (including the Rights), or any Trigger Event with
respect thereto, that was taken into account for purposes of
calculating a distribution amount for which an adjustment to the
Conversion Price under this Section 16.5 was made, (1) in the
case of any such rights (including the Rights) or warrants which
shall all have been redeemed or repurchased without exercise by
any of the holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may be,
as though it were a cash distribution equal to the per share
redemption or repurchase price received by a holder or holders of
shares of Underlying Stock with respect to such rights or
warrants (assuming such holder had retained such rights or
warrants and thus received such price), made to all holders of
shares of the class of Capital Stock into which Securities of
such series are convertible as of the date of such redemption or
repurchase, and (2) in the case of such rights (including the
Rights) or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Price
shall be readjusted as if such rights (including the Rights) and
warrants had not been issued. In lieu of any adjustment to the
Conversion Price otherwise required by this Section 16.5(d) as a
result of a Trigger Event affecting rights (the "Rights")
distributed pursuant to the Issuer's Rights Agreement dated as of
November 1, 1995, as amended (the "Rights Plan"), the Issuer may
amend such Rights Plan to provide that upon conversion of the
Securities of such series the holder thereof will receive, in
addition to the shares of Underlying Stock issuable upon such
conversion, the Rights which attached to such shares of
Underlying Stock or would
<PAGE>
have attached to such shares if the Rights had not become
separated from the Underlying Stock pursuant to the provisions of
the Rights Plan.
Notwithstanding any other provision of this
Section 16.5(d) to the contrary, rights, warrants, evidences of
indebtedness, other securities, cash or other assets (including,
without limitation, any rights distributed pursuant to any
stockholder rights plan) shall be deemed not to have been
distributed for purposes of this Section 16.5(d) if the Issuer
makes proper provision so that each Holder of Securities of such
series who converts a Security of such series (or any portion
thereof) after the date fixed for determination of stockholders
entitled to receive such distribution shall be entitled to
receive upon such conversion, in addition to the shares of
Underlying Stock issuable upon such conversion, the amount and
kind of such distributions that such Holder would have been
entitled to receive if such Holder had, immediately prior to such
determination date, converted such Security of such series into
shares of Underlying Stock.
For purposes of this Section 16.5(d) and
Sections 16.5(a) and (b), any dividend or distribution to which
this Section 16.5(d) is applicable that also includes (x) shares
of Underlying Stock, (y) rights or warrants to subscribe for or
purchase shares of Underlying Stock to which Section 16.5(b)
applies or (z) both (x) and (y), shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than
such shares of Underlying Stock or rights or warrants to which
Section 16.5(b) applies (and any Conversion Price reduction
required by this Section 16.5(d) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Underlying Stock or
such rights or warrants (and any further Conversion Price
reduction required by Section 16.5(a) and (b) with respect to
such dividend or distribution shall then be made, except that for
purposes of calculating such further Conversion Price reduction,
if any, (a) the Record Date of such dividend or distribution
shall be substituted for the phrases "the date fixed for the
determination of stockholders entitled to receive such dividend
or other distribution", "Record Date (as defined in Section
16.5(g)) fixed for such determination" and "Record Date" for
purposes of Section 16.5(a) and for the phrases "the Record Date
fixed for the determination of stockholders entitled to receive
such rights or warrants" and "such Record Date" for purposes of
Section 16.5(b) and (b) any shares of Underlying Stock included
in such dividend or distribution shall not be deemed "outstanding
at the close of business on the Record Date fixed for such
determination" for purposes of Section 16.5(a)).
(e) If the Issuer shall, by dividend or otherwise,
distribute to substantially all holders of shares of Underlying
Stock cash (the "Cash Distribution") (excluding any cash that is
distributed upon a merger or consolidation to which
<PAGE>
Section 16.7 applies or as part of a distribution referred to in
Section 16.5(d) for which no adjustment to the Conversion Price
was made) in an aggregate amount that, taken together with
(1) the aggregate amount of any other such distributions to all
holders of its Underlying Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution,
and in respect of which no adjustment pursuant to this
Section 16.5(e) has been made, and (2) the aggregate amount of
any cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and
described in a Board Resolution) of consideration payable in
respect of any tender offer by the Issuer or any Subsidiary for
all or any portion of the Underlying Stock concluded within the
12 months preceding the date of payment of such distribution, and
in respect of which no adjustment pursuant to Section 16.5(f) has
been made, exceeds 15% of the product of (x) the Current Market
Price (determined as provided in Section 16.5(g)) on the Record
Date with respect to such distribution and (y) the number of
shares of Underlying Stock outstanding on such date, then, and in
each such case, immediately after the close of business on such
date, the Conversion Price shall be reduced so that the same
shall equal an amount equal to the product of (x) the Conversion
Price in effect immediately prior to the close of business on
such Record Date and (y) a fraction of which (i) the numerator
shall be the result of (A) the Current Market Price on the Record
Date minus (B) an amount equal to the result of (p) the aggregate
amount of the Cash Distribution and (2) above divided by (q) the
number of shares of Underlying Stock outstanding on the Record
Date and (ii) the denominator shall be equal to the Current
Market Price on such Record Date; provided, however, that in the
event the portion of the cash so distributed applicable to one
share of Underlying Stock is equal to or greater than the Current
Market Price of the Underlying Stock on the Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities of such series shall have the
right to receive upon conversion of a Security of such series (or
any portion thereof) the amount of cash such Holder would have
received had such Holder converted such Security of such series
(or portion thereof) immediately prior to such Record Date. If
such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or
distribution had not been declared.
In lieu of making any adjustment to the Conversion
Price pursuant to the immediately preceding paragraph, the Issuer
may elect to reserve an amount of cash for distribution to the
Holders of Securities of such series upon the conversion of the
Securities of such series so that any such Holder converting
Securities of such series will receive upon such conversion, in
addition to the shares of Underlying Stock and other items to
which such Holder is entitled, the full amount of cash which such
Holder would have received if such Holder had, immediately prior
to the Record Date for such distribution of cash, converted its
Securities of such series into
<PAGE>
Underlying Stock, together with any interest accrued with respect
to such amount, in accordance with this paragraph. The Issuer may
make such election by providing an Officers' Certificate to the
Trustee to such effect on or prior to the payment date for any
such distribution and depositing with the Trustee on or prior to
such date an amount of cash equal to the aggregate amount that
the Holders of Securities of such series would have received if
such Holders had, immediately prior to the Record Date for such
distribution, converted all of the Securities of such series into
Underlying Stock. Any such funds so deposited by the Issuer with
the Trustee shall be invested by the Trustee in Government
Obligations with a maturity not more than three months from the
date of issuance. Upon conversion of Securities of such series by
a Holder thereof, such holder shall be entitled to receive, in
addition to the Underlying Stock issuable upon conversion, an
amount of cash equal to the amount such Holder would have
received if such Holder had, immediately prior to the Record Date
for such distribution, converted its Securities of such series
into Underlying Stock, along with such Holder's pro rata share of
any accrued interest earned as a consequence of the investment of
such funds. Promptly after making an election pursuant to this
paragraph, the Issuer shall give or shall cause to be given
notice to all Holders of Securities of such series of such
election, which notice shall state the amount of cash per $1,000
principal amount of Securities of such series such Holders shall
be entitled to receive (excluding interest) upon conversion of
the Securities of such series as a consequence of the Issuer
having made such election. Any cash distribution to all holders
of Underlying Stock as to which the Issuer makes the election
permitted by this paragraph and as to which the Issuer has
complied with the requirements of such Section shall be treated
as not having been made for all purposes of this Section 16.5(e).
(f) If a tender offer made by the Issuer or any
Subsidiary for all or any portion of the Underlying Stock expires
and such tender offer (as amended upon the expiration thereof)
requires the payment to stockholders (based on the acceptance (up
to any maximum number of shares specified in the terms of the
tender offer) of Purchased Shares (as defined below)) of an
aggregate consideration having a fair market value (as determined
by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that, taken
together with (1) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offers, by
the Issuer or any Subsidiary for all or any portion of the
Underlying Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no
adjustment pursuant to this Section 16.5(f) has been made and
(2) the aggregate amount of any distributions to all holders of
Underlying Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of
which no adjustment pursuant to
<PAGE>
Section 16.5(e) has been made, exceeds 15% of the product of
(x) the Current Market Price (determined as provided in
Section 16.5(g)) as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender offer (as it
may be amended) and (y) the number of shares of Underlying Stock
outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration
Time, the Conversion Price shall be adjusted so that the same
shall equal an amount equal to the product of (x) the Conversion
Price in effect immediately prior to the close of business on the
date of the Expiration Time and (y) a fraction of which (i) the
numerator shall be the result of (A) the product of (p) the
number of shares of Underlying Stock outstanding (including any
tendered shares) on the Expiration Time and (q) the Current
Market Price of the Underlying Stock on the Expiration Time minus
(B) the fair market value (determined as aforesaid) of the
aggregate consideration to be paid to stockholders based on the
acceptance (up to any maximum number of shares specified in the
terms of the tender offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum number of shares, being referred
to as the "Purchased Shares") and (ii) the denominator shall be
the product of (A) the number of shares of Underlying Stock
outstanding (less any Purchased Shares) on the Expiration Time
and (B) the Current Market Price of the Underlying Stock on the
Expiration Time, such reduction (if any) to become effective
immediately prior to the opening of business on the day following
the Expiration Time. If the Issuer is obligated to purchase
shares pursuant to any such tender offer, but the Issuer is
permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which
would then be in effect if such tender offer had not been made.
If the application of this Section 16.5(f) to any tender offer
would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this
Section 16.5(f).
(g) For purposes of this Section 16.5, the following
terms shall have the meaning indicated:
(1) "closing price" with respect to any securities on
any day means the closing price on such day or, if no such
sale takes place on such day, the average of the reported
high and low prices on such day, in each case on The Nasdaq
Stock Market or New York Stock Exchange, as applicable, or,
if such security is not listed or admitted to trading on
such national market or exchange, on the principal national
securities exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if
not quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the
high and low prices of such security on
<PAGE>
the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or, if not so
available, in such manner as furnished by any New York Stock
Exchange member firm selected from time to time by the Board
of Directors for that purpose, or, if not so available, a
price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a
Board Resolution.
(2) "Current Market Price" means the average of the
daily closing prices per share of the Underlying Stock for
the 10 consecutive trading days immediately prior to the
date in question; provided, however, that (i) if the "ex"
date (as hereinafter defined) for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 16.5(a), (b), (c), (d), (e) or (f) occurs during
such 10 consecutive trading days, the closing price for each
trading day prior to the "ex" date for such other event
shall be adjusted by multiplying such closing price by the
same fraction by which the Conversion Price is so required
to be adjusted as a result of such other event, (ii) if the
"ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to
Section 16.5(a), (b), (c), (d), (e) or (f) occurs on or
after the "ex" date for the issuance or distribution
requiring such computation and prior to the date in
question, the closing price for each trading day on and
after the "ex" date for such other event shall be adjusted
by multiplying such closing price by the reciprocal of the
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, and (iii) if the
"ex" date for the issuance or distribution requiring such
computation is prior to the date in question, after taking
into account any adjustment required pursuant to clause (i)
or (ii) of this proviso, the closing price for each trading
day on or after such "ex" date shall be adjusted by adding
thereto the amount of any cash and the fair market value (as
determined by the Board of Directors in a manner consistent
with any determination of such value for purposes of
Section 16.5(d) or (f), whose determination shall be
conclusive and described in a Board Resolution) of the
evidences of indebtedness, shares of Underlying Stock or
assets being distributed applicable to one share of the
Underlying Stock as of the close of business on the day
before such "ex" date. For purposes of this paragraph, the
term "ex" date, (i) when used with respect to any issuance
or distribution, means the first date on which the
Underlying Stock trades regular way on the relevant exchange
or in the relevant market from which the closing price was
obtained without the right to receive such issuance or
distribution, (ii) when used with respect to any subdivision
or combination of shares of Underlying Stock, means the
first date on which the
<PAGE>
Underlying Stock trades regular way on such exchange or in
such market after the time at which such subdivision or
combination becomes effective, and (iii) when used with
respect to any tender or exchange offer, means the first
date on which the Underlying Stock trades regular way on
such exchange or in such market after the Expiration Time of
such offer. Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Price are called
for pursuant to this Section 16.5, such adjustment shall be
made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 16.5
and to avoid unjust or inequitable results as determined in
good faith by the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in
which the holders of Capital Stock have the right to receive
any cash, securities or other property or in which the
Capital Stock (or other applicable security) is exchanged
for or converted into any combination of cash, securities or
other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(5) "trading day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national securities exchange, a
day on which the New York Stock Exchange or such other
national securities exchange is open for business, as
applicable, or (y) if the applicable security is quoted on
The Nasdaq Stock Market, a day on which trades may be made
thereon or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or
executive order to close.
(h) Certain adjustments in the conversion price in
accordance with the foregoing provisions could be taxable
pursuant to Section 305 of the Internal Revenue Code of 1986, as
amended, as a constructive distribution of stock to holders of
the convertible Debt Securities at the time of the adjustment in
the conversion rate to the extent of the value of such
adjustment. Accordingly, the Issuer may make such reduction in
the Conversion Price, in addition to those required by
Sections 16.5(a), (b), (c), (d), (e) and (f), as the Board of
Directors considers to be advisable to avoid or diminish any
income tax to holders of Underlying Stock or rights to purchase
<PAGE>
Underlying Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
To the extent permitted by applicable law, the Issuer
from time to time may reduce the Conversion Price by any amount
for any period of time if the period is at least 20 days, the
reduction is irrevocable during the period and the Board of
Directors has made a determination that such reduction would be
in the Issuer's best interests, which determination shall be
conclusive and described in a Board Resolution. Whenever the
Conversion Price is reduced pursuant to the preceding sentence,
the Issuer shall mail to the Holders of Securities of such series
at his or her last address appearing on the register of Holders
maintained for that purpose a notice of the reduction at least
15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price
and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this Section 16.5(i) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Article Seventeen shall be made by the Issuer and shall be made
to the nearest cent or to the nearest 100th of a share, as the
case may be. No adjustment need be made for a change in the par
value or no par value of the Underlying Stock.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Issuer shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the
Issuer shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and
the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Conversion Price to
each Holder of Securities of such series at his or her last
address appearing on the register of Holders maintained for that
purpose within 20 days of the effective date of such adjustment.
Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) In any case in which this Section 16.5 provides
that an adjustment shall become effective immediately after a
Record Date for an event, the Issuer may defer until the
occurrence of such event issuing to the Holder of any Security of
such series converted after such Record Date and before the
occurrence of such event the additional shares of Underlying
Stock issuable upon such conversion by reason of the
<PAGE>
adjustment required by such event over and above the Underlying
Stock issuable upon such conversion before giving effect to such
adjustment.
(l) For purposes of this Section 16.5, the number of
shares of any class of Capital Stock at any time outstanding
shall not include shares held in the treasury of the Issuer but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares such shares of such class
of Capital Stock. The Issuer shall not pay any dividend or make
any distribution on shares of any class of Capital Stock held in
the treasury of the Issuer.
(m) In the event that at any time, as a result of
shares of any other class of Capital Stock of the Issuer becoming
issuable in exchange or substitution for or in lieu of shares of
Underlying Stock or as a result of an adjustment made pursuant to
subsection (a) or (c) above, the Holder of any Security of such
series thereafter surrendered for conversion shall become
entitled to receive any shares of the Issuer other than shares of
Underlying Stock, thereafter the number of such other shares so
receivable upon conversion of any Security shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
class of Capital Stock into which the Securities of such series
are convertible contained in subsections (a) to (l) above, and
the provisions of this Article Seventeen with respect to the
class of Capital Stock into which the Securities of such series
are convertible shall apply on like terms to any such other
shares.
(n) The conversion rate with respect to any Original
Issue Discount Securities, the terms of which provide for
convertibility, shall not be adjusted during the term of such
Original Issue Discount Securities for accrued original issue
discount.
(o) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the
provisions of this Section 16.5 shall apply separately to events
affecting each such class.
SECTION 16.6. No Fractional Shares to be Issued. No
fractional shares of Underlying Stock shall be issued upon
conversion of Securities. If more than one Security of any series
shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities of such series (or
specified portions thereof to the extent permitted hereby) so
surrendered. Instead of a fraction of a share of Underlying Stock
which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), the Issuer shall
pay a cash adjustment in respect of such fraction of a share in
an amount equal to the same fractional interest of the closing
price per
<PAGE>
share (as defined in Section 16.5(g)(1)) of Underlying Stock on
the Business Day next preceding the day of conversion.
SECTION 16.7. Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur: (i) any
reclassification or change of the outstanding shares of
Underlying Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation,
merger or combination of the Issuer with another corporation as a
result of which holders of Capital Stock shall be entitled to
receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Underlying Stock,
or (iii) any sale of the properties and assets of the Issuer as,
or substantially as, an entirety to any other corporation as a
result of which holders of Underlying Stock shall be entitled to
receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Underlying Stock,
then the Issuer or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental
indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply)
providing that the Securities of such series shall be convertible
into the kind and amount of shares of stock and other securities
or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination or
sale by a holder of a number of shares of Underlying Stock
issuable upon conversion of the Securities of such series
(assuming, for such purposes, a sufficient number of authorized
shares of Underlying Stock available to convert all such
Securities of such series) immediately prior to such
reclassification, change, consolidation, merger, combination or
sale assuming such holder of Underlying Stock did not exercise
his or her rights of election, if any, as to the kind or amount
of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange or sale (provided, that
if the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange or
sale is not the same for each share of Underlying Stock in
respect of which such rights of election have not been exercised
("non-electing share"), then, for the purposes of this
Section 16.7, the kind and amount of securities, cash or other
property receivable upon such consolidation, merger, statutory
exchange or sale for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of
the non-electing shares). Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Article Seventeen. If, in the case of any such reclassification,
change, consolidation,
<PAGE>
merger, combination or sale, the stock or other securities and
assets receivable thereupon by a holder of shares of Underlying
Stock includes shares of stock or other securities and assets of
a corporation other than the successor or purchasing corporation,
as the case may be, in such reclassification, change,
consolidation, merger, combination or sale, then such
supplemental indenture shall also be executed by such other
corporation and shall contain such additional provisions to
protect the interests of the holders of the Securities of such
series as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.
The Issuer shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder of Securities
of such series at his or her address appearing on the register of
Holders for that purpose within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section 16.7 shall
similarly apply to successive reclassifications, changes,
consolidations, mergers, combinations and sales.
If this Section 16.7 applies to any event or
occurrence, Section 16.5 shall not apply.
SECTION 16.8. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action. With respect to the
Securities of any series, in case:
(a) the Issuer shall authorize the issuance to all
holders of Underlying Stock of rights or warrants to
subscribe for or purchase shares of its Underlying Stock or
of any other right;
(b) the Issuer shall authorize the distribution to all
holders of Underlying Stock of evidences of its indebtedness
or assets (except for the exclusions with respect to certain
dividends set forth in Section 16.5(c));
(c) of any subdivision, combination or reclassification
of Underlying Stock or of any consolidation or merger to
which the Issuer is a party and for which approval by the
shareholders of the Issuer is required, or of the sale of
all or substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the company;
then the Issuer shall cause to be filed with the Trustee and at
the office or agency maintained for the purpose of conversion of
Securities of such series pursuant to Section 4.2, and shall
cause to be mailed to the Holders of Securities of such series,
at their last addresses as they shall appear upon the
registration books of the Issuer, at least ten days prior to the
applicable record date hereinafter specified, a notice stating
(i) the date as of which the holders of Underlying Stock to be
entitled to receive any
<PAGE>
such rights, warrants or distribution are to be determined, or
(ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action is expected
to become effective, and the date as of which it is expected that
holders of record of Underlying Stock shall be entitled to
exchange their Underlying Stock of such class for securities or
other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale,
dissolution, liquidation, winding up or other action. The failure
to give the notice required by this Section 16.8 or any defect
therein shall not affect the legality or validity of any
distribution, right, warrant, subdivision, combination,
reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the
expense of the Issuer not later than the aforesaid filing date at
least once in an Authorized Newspaper.
SECTION 16.9. Covenant to Reserve Shares for Issuance on
Conversion of Securities. The Issuer covenants that at all times
it will reserve and keep available out of its Underlying Stock,
free from preemptive rights, solely for the purpose of issue upon
conversion of Securities of any series as herein provided, such
number of shares of Underlying Stock as shall then be issuable
upon the conversion of all Outstanding Securities of such series.
The Issuer covenants that all shares of Underlying Stock which
shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of authorized Underlying Stock, and shall
be fully paid and nonassessable, free of all liens and charges
and not subject to preemptive rights and that, upon conversion,
the appropriate capital stock accounts of the Issuer will be duly
credited.
SECTION 16.10. Compliance with Governmental Requirements.
The Issuer covenants that if any shares of Underlying Stock
required to be reserved for purposes of conversion of Securities
hereunder require registration or listing with or approval of any
governmental authority under any Federal or State law, pursuant
to the Securities Act or the Exchange Act or any national or
regional securities exchange on which such Underlying Stock is
listed at the time of delivery of any shares of such Underlying
Stock, before such shares may be issued upon conversion, the
Issuer will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates for Shares
Issued upon Conversion. The issuance of certificates for shares
of Underlying Stock upon the conversion of Securities shall be
made without charge to the converting Holders for any tax
(including, without limitation, all documentary and stamp taxes)
in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or
in such names as may be directed by, the Holders of
<PAGE>
Securities converted; provided, however, that the Issuer shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the Holder of the
Security converted, and the Issuer shall not be required to issue
or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the
Issuer the amount of such tax or shall have established to the
satisfaction of the Issuer that such tax has been paid.
SECTION 16.12. Trustee's Duties with Respect to Conversion
Provisions. The Trustee and any conversion agent shall not at any
time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price or with respect to the
nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of
Underlying Stock, or of any other securities or property, which
may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any conversion agent makes
any representation with respect thereto. Neither the Trustee nor
any conversion agent shall be responsible or liable for any
failure of the Issuer to make any cash payment or to issue,
transfer or deliver any shares of stock or stock certificates or
other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee, subject to the
provisions of Section 7.1, and any conversion agent shall not be
responsible or liable for any failure of the Issuer to comply
with any of the covenants of the Issuer contained in this Article
Sixteen.
<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,
by
------------------------
Vice President
[Corporate Seal]
Attest:
- --------------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
Authorized Officer
[Corporate Seal]
Attest:
- ---------------------------------
Assistant Secretary
======================================================================
ITT CORPORATION,
Issuer
AND
THE FIRST NATIONAL BANK OF CHICAGO,
-----------------------
Indenture
-----------------------
Dated as of November , 1996
-----------------------
Subordinated Debt Securities
======================================================================
<PAGE>
ITT CORPORATION
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310 (a)(1)................................................... 7.9
(a)(2)................................................... 7.9
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.9
(b)............................... 7.8 and 7.10(a), (b) and (d)
(c)...................................................... N.A.
311...................................... 7.13(a) and (c)(1) and (2)
(b).................................................... 7.13(b)
(c)...................................................... N.A.
312................................................. 5.1 and 5.2(a)
(b)..................................................... 5.2(b)
(c)..................................................... 5.2(c)
313.......................................................... 5.4(a)
(b)(1).................................................. N.A.
(b)(2).................................................. 5.4(a)
(c)..................................................... 5.4(c)
(d)..................................................... 5.4(d)
314.......................................................... 5.3
(a)(4).................................................. 4.7
(b)..................................................... N.A.
(c)(1).................................................. 13.6
(c)(2).................................................. 13.6
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 13.6
(f)..................................................... N.A.
315.......................................................... 7.1
(b)..................................................... 6.11
(c)..................................................... 7.1
(d)..................................................... 7.1
(e)..................................................... 6.12
316.......................................................... 8.4
(a)(1)(A)............................................... 6.9
(a)(1)(B)............................................... 6.10
(a)(2).................................................. N.A.
(b)..................................................... 6.7
(c)..................................................... 8.1
317.......................................................... 6.2
(b)..................................................... 4.4
318.......................................................... 13.11
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE ISSUER......................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined.......................... 1
SECTION 1.2. Other Defined Terms............................ 10
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally................................ 10
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.... 11
SECTION 2.4. Securities Issuable in the Form of
a Global Security............................ 12
ARTICLE THREE
THE SECURITIES
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............ 18
SECTION 3.5. Certificate of Authentication.................. 19
SECTION 3.6. Registration; Registration of Transfer
and Exchange................................. 19
SECTION 3.7. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities or Coupons........................ 21
SECTION 3.8. Payment of Interest; Interest
Rights Preserved............................. 23
SECTION 3.9. Cancellation of Securities;
Destruction Thereof.......................... 24
SECTION 3.10. Temporary Securities........................... 24
<PAGE>
SECTION 3.11. Computation of Interest........................ 25
SECTION 3.12. Currency and Manner of Payments in
Respect of Securities........................ 25
SECTION 3.13. Compliance with Certain Laws and Regulations... 30
ARTICLE FOUR
COVENANTS OF THE ISSUER
SECTION 4.1. Payment of Securities........................... 31
SECTION 4.2. Offices or Agency............................... 31
SECTION 4.3. Appointment To Fill a Vacancy in
Office of Trustee............................. 32
SECTION 4.4. Paying Agents................................... 32
SECTION 4.5. Certificates to Trustee......................... 34
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........ 34
SECTION 5.2. Preservation and Disclosure of
Securityholders Lists....................... 35
SECTION 5.3. Reports by the Issuer.......................... 37
SECTION 5.4. Reports by the Trustee......................... 37
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................ 39
SECTION 6.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt........................ 43
SECTION 6.3. Application of Proceeds......................... 45
SECTION 6.4. Suits for Enforcement........................... 47
<PAGE>
SECTION 6.5. Restoration of Rights on Abandonment
of Proceedings................................ 47
SECTION 6.6. Limitations on Suits by Securityholders......... 47
SECTION 6.7. Unconditional Right of Securityholders
To Institute Certain Suits.................... 48
SECTION 6.8. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default................ 48
SECTION 6.9. Control by the Holders of Securities............ 49
SECTION 6.10. Waiver of Past Defaults......................... 49
SECTION 6.11. Trustee To Give Notice of Default, But May
Withhold in Certain Circumstances............. 50
SECTION 6.12. Right of Court To Require Filing of
Undertaking To Pay Costs...................... 50
SECTION 6.13. Judgment Currency............................... 51
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.1. Duties and Responsibilities of the Trustee;
During Default; Prior to Default.............. 52
SECTION 7.2. Certain Rights of the Trustee................... 53
SECTION 7.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof............... 54
SECTION 7.4. Trustee and Agents May Hold Securities;
Collections, etc.............................. 55
SECTION 7.5. Moneys Held by Trustee.......................... 55
SECTION 7.6. Compensation and Indemnification of
Trustee and Its Prior Claim................... 55
SECTION 7.7. Right of Trustee To Rely on
Officers' Certificate, etc.................... 56
SECTION 7.8. Qualification of Trustee;
Conflicting Interests......................... 56
SECTION 7.9. Persons Eligible for Appointment as Trustee..... 56
SECTION 7.10. Resignation and Removal; Appointment of
Successor Trustee............................. 57
SECTION 7.11. Acceptance of Appointment by Successor Trustee.. 58
SECTION 7.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee........................ 59
SECTION 7.13. Preferential Collection of Claims
Against the Issuer............................ 59
SECTION 7.14. Authenticating Agent............................ 64
<PAGE>
ARTICLE EIGHT
CONCERNING THE HOLDERS OF SECURITIES
SECTION 8.1. Action by Holders............................... 66
SECTION 8.2. Proof of Execution of Instruments by Holders
of Securities................................ 66
SECTION 8.3. Holders To Be Treated as Owners................. 67
SECTION 8.4. Securities Owned by Issuer Deemed
Not Outstanding............................... 67
SECTION 8.5. Right of Revocation of Action Taken............. 68
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.1. Purposes of Meetings............................ 69
SECTION 9.2. Call of Meetings by Trustee..................... 69
SECTION 9.3. Call of Meetings by Issuer or Holders........... 69
SECTION 9.4. Qualifications for Voting....................... 70
SECTION 9.5. Regulations..................................... 70
SECTION 9.6. Voting.......................................... 71
SECTION 9.7. No Delay of Rights by Meeting................... 71
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1. Supplemental Indentures Without Consent
of Securityholders............................ 72
SECTION 10.2 Supplemental Indentures with Consent
of Securityholders............................ 74
SECTION 10.3. Notice of Supplemental Indenture................ 75
SECTION 10.4. Effect of Supplemental Indenture................ 75
SECTION 10.5. Documents To Be Given to Trustee................ 76
SECTION 10.6. Notation on Securities and Coupons in
Respect of Supplemental Indentures............ 76
SECTION 10.7. Issuance of Securities by
Successor Corporation......................... 76
<PAGE>
ARTICLE ELEVEN
CONSOLIDATION, MERGER OR SALE
SECTION 11.1. Issuer May Consolidate, Merge or Sell
on Certain Terms.............................. 77
SECTION 11.2. Opinion of Counsel To Be Given to Trustee....... 78
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.1. Satisfaction and Discharge of Securities
of Any Series................................. 78
SECTION 12.2. Satisfaction and Discharge of Indenture......... 81
SECTION 12.3. Application of Trust Money...................... 81
SECTION 12.4. Repayment of Moneys Held by Paying Agent........ 81
SECTION 12.5. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years.......... 82
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt
from Individual Liability..................... 82
SECTION 13.2. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders........ 82
SECTION 13.3. Successors and Assigns of Issuer Bound
by Indenture.................................. 83
SECTION 13.4. Notices to Holders; Waiver...................... 83
SECTION 13.5. Addresses for Notices........................... 84
SECTION 13.6. Officers' Certificates and Opinions
of Counsel; Statements To Be
Contained Therein............................. 84
SECTION 13.7. Cross References................................ 85
SECTION 13.8. Legal Holidays.................................. 85
SECTION 13.9. Moneys of Different Currencies
To Be Segregated.............................. 86
SECTION 13.10. Payment To Be in Proper Currency................ 86
<PAGE>
SECTION 13.11. Conflict of Any Provision of
Indenture with Trust Indenture Act............ 86
SECTION 13.12. New York Law To Govern.......................... 87
SECTION 13.13. Counterparts.................................... 87
SECTION 13.14. Effect of Headings.............................. 87
SECTION 13.15. Separability Clause............................. 87
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.1. Applicability of Article........................ 87
SECTION 14.2. Notice of Redemption; Selection
of Securities................................. 87
SECTION 14.3. Payment of Securities Called
for Redemption................................ 89
SECTION 14.4. Exclusion of Certain Securities
from Eligibility for
Selection for Redemption...................... 90
SECTION 14.5 Redemption Pursuant to Gaming Laws ............. 91
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.1. Applicability of Article........................ 92
SECTION 15.2. Satisfaction of Mandatory Sinking
Fund Payments with Securities................. 92
SECTION 15.3. Redemption of Securities for Sinking Fund....... 92
ARTICLE SIXTEEN
SUBORDINATION OF SUBORDINATED SECURITIES
SECTION 16.1 Agreement to Subordinate........................ 95
SECTION 16.2. Terms of Subordination.......................... 95
SECTION 16.3. Subrogation of Subordinated Securities.......... 97
SECTION 16.4. Payments Over to Holders of Senior Debt......... 98
SECTION 16.5. Authorization by Holders of Subordinated
Securities.................................... 98
SECTION 16.6. Notice to Trustee ............................. 99
SECTION 16.7. Trustee's Relation to Senior Debt............... 100
<PAGE>
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 17.1 Applicability of Article ....................... 101
SECTION 17.2. Right of Holders to Convert Securities.......... 101
SECTION 17.3. Issuance of Shares of Underlying
Stock on Conversion........................... 102
SECTION 17.4. No Payment or Adjustment for
Interest or Dividends......................... 103
SECTION 17.5. Adjustment of Conversion Price.................. 103
SECTION 17.6. No Fractional Shares to be Issued............... 114
SECTION 17.7. Effect of Reclassification, Consolidation,
Merger or Sale................................ 115
SECTION 17.8. Notice to Holders of Securities
of a Series Prior to Taking
Certain Types of Action....................... 116
SECTION 17.9. Covenant to Reserve Shares for Issuance
on Conversion of Securities................... 117
SECTION 17.10. Compliance with Governmental Requirements....... 117
SECTION 17.11. Payment of Taxes upon Certificates for
Shares Issued upon Conversion................. 117
SECTION 17.12. Trustee's Duties with Respect to
Conversion Provisions......................... 118
<PAGE>
INDENTURE, dated as of November , 1996, between ITT
Corporation, a Nevada corporation (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.
All things necessary to make this Indenture 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 consideration, 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 between 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 are referred to in the Trust Indenture Act or by
Commission rule under the Trust
<PAGE>
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, 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 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. 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,
warrants, options, participations or other equivalents (however
designated) of corporate stock.
<PAGE>
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, 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).
"Conversion Price": See Section 17.2.
"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 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.
"Currency Conversion Date": See Section 3.12(e).
"Currency Conversion Rate": See Section 6.13.
"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 Exchange Act 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).
<PAGE>
"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 Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Officer's Certificate" means 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, signed by the treasurer or any 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.
"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 and regulations 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
<PAGE>
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) 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 a particular Registered Security is registered in
the Securities Register; with respect 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.
<PAGE>
"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 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" means, when used with respect to any Security,
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 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 or
entity 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 or entity, as applicable, has its principal
office) immediately preceding the applicable payment date.
"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.
<PAGE>
"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" means (except as otherwise provided in Section
7.8 and subject to the provisions of Section 8.4), when used with
reference to Securities, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled 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;
(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); and
(d) Securities which have been converted into Capital Stock
in accordance with Article Seventeen hereof, if the terms of such
Securities provide for convertibility pursuant to Section 3.1.
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" means, with respect to any series of
Securities, the rate designated as such in or pursuant to the
resolution of the Board of Directors or the supplemental indenture, as
the case may be, 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, limited
liability company, partnership, joint venture, association, joint
stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of any series, 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.
"Redemption Date" means, when used with respect to any
Security to be redeemed, that date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" means, when used with respect to any
Security to be redeemed, the price, in 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.
"Responsible Officer" means, when used with respect to the
Trustee, 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.
<PAGE>
"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.
"Senior Debt" means (a) all indebtedness of the Company
(other than indebtedness which by its terms is subordinate in right of
payment to other indebtedness), whether outstanding on the date of
this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by others and assumed or guaranteed,
directly or indirectly, by the Company including without limitation
any endorsement or other contingent obligation of the Company in
respect of, or to purchase, or otherwise acquire, any obligation of
another or (iii) constituting purchase money indebtedness, or
indebtedness secured by property at the time of the acquisition of
such property by the Company, for the payment of which the Company is
directly or contingently liable, and (b) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and
supplements to, any such indebtedness, unless by the terms of the
instrument creating or evidencing any such indebtedness referred to in
clause (a) or (b) above it is expressly provided that such
indebtedness is not senior in right of payment to the Securities, or
unless by its terms such indebtedness is subordinate in right of
payment to other indebtedness of the issuer. As used in the preceding
sentence the term "purchase money indebtedness" shall mean
indebtedness evidenced by a note, debenture, bond or other written
instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for
the acquisition of property, whether by purchase, merger,
consolidation or otherwise. The term Senior Debt shall not include any
account payable or other indebtedness created or assumed by the
Company in the ordinary course of business in connection with the
obtaining of materials or services.
"Specified Amount": See Section 3.12(i).
"Stated Maturity" means, when used with respect to any
Security or any installment of interest thereon, 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.
"Securities Act" means the Securities Act of 1933, as
amended.
"Subordinated Debt" means all notes or other unsecured
evidences of indebtedness of the Issuer for money borrowed by the
Issuer which is expressed to be
<PAGE>
subordinate in right of payment to all Senior Debt, but not to any
other indebtedness of the Issuer.
"Subordinated Securities": See Section 16.1.
"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.
"Valuation Date": See Section 3.12(e).
"Vice President" when used with respect to the Issuer 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
<PAGE>
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, all as determined by
the officers executing 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.
[NAME OF TRUSTEE]
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:
[NAME OF TRUSTEE]
as Trustee
By [NAME OF AUTHENTICATING AGENT],
Authenticating Agent
<PAGE>
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 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
Exchange Act 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'
<PAGE>
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), (i) such Global
Security shall be cancelled 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 or inform
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.
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;
<PAGE>
(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 (including, without limitation, the type of
consideration to be paid by the Issuer) 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 any
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 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.
<PAGE>
(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;
(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, and premium,
if any, or interest, if any, on the Securities of such series may
be determined with
<PAGE>
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) whether the Securities of such series will be
convertible into any class or combination of classes of Capital
Stock, and the terms and conditions upon which such conversion
shall be effected (including, without limitation, the Conversion
Price, the conversion period, any provision which gives the
Issuer the right, at its option, to pay to a Holder of the
Securities a specified cash amount in lieu of Capital Stock
issuable upon such conversion, and any other provisions in
addition to or in lieu of those set forth in this Indenture
relative to such obligation);
(22) any trustees, authenticating or paying agents, warrant
agents, conversion agents, transfer agents or registrars or any
other agents 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; and
(23) any other terms of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to 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
<PAGE>
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:
(1) a Board Resolution relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such Board
Resolution, in each case certified by the secretary or an
assistant secretary of the Issuer;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) 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
(4) an Opinion of Counsel, which shall state
(a) 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 (1) above or by a
supplemental indenture delivered to the Trustee pursuant to
subparagraph (2) above as provided by Section 3.1 and in
accordance with the provisions of this Indenture;
(b) 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,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors'
rights and to general equity principles;
(c) 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;
<PAGE>
(d) 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;
(e) 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
(f) 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 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(3) 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 assistant treasurer or its secretary or any
<PAGE>
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 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 Coupons 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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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 Indenture equally and proportionately
<PAGE>
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 cancelation 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 fifteenth day of a calendar month and shall mean the close of
business on the fifteenth 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 New York
Business Day. 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 (1) or
(2) below:
(1) 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
<PAGE>
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.
(2) 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,
conversion, 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, conversion agent or any Securities
Registrar, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled 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 cancelled 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
<PAGE>
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 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:
(1) Except as provided in subparagraph (a)(2) 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
<PAGE>
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.
(2) 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:
(1) 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.
<PAGE>
(2) 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
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
<PAGE>
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 "Currency 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) above 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.
(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.
<PAGE>
(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
Currency 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 Currency Conversion Date. If after the Currency
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 Currency 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 Currency 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 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.
<PAGE>
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 Currency 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 Currency Conversion Date and the Specified
Amount of each Component Currency on the Currency 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 so long as any of the Securities of such series remain
outstanding:
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, and where Securities of each
series that is convertible may be presented for conversion, 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 Corporate Trust Office of the
Trustee, or, if the Corporate Trust Office of the Trustee is not
located in the Borough of Manhattan, The City of New York, New York,
such office or agency shall be the principal corporate trust office of
the Authenticating Agent designated pursuant to Section 7.14 hereof.
So
<PAGE>
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 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
<PAGE>
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;
(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.
<PAGE>
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 Section 12.4 and 12.5.
SECTION 4.5. 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 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 4.5, 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
<PAGE>
(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.
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 in its capacity as Securities Registrar for such series,
and (3) filed with it within two preceding years pursuant to the
provisions of paragraph (2) 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 (2) 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
<PAGE>
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, at 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 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.
<PAGE>
(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 Exchange
Act; 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 Exchange Act 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;
(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
<PAGE>
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;
(vi) any additional issuance 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
<PAGE>
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 5.4 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.
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
<PAGE>
occasioned by the provisions of Article Sixteen or 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 (whether or not such payment is
prohibited by the subordination provisions of Article Sixteen of
this Indenture) 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 (whether or not such payment is
prohibited by the subordination provisions of Article Sixteen of
this Indenture) 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
<PAGE>
by the 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,
<PAGE>
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 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 the Indenture,
other than the non-payment 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
<PAGE>
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.
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 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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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 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.
<PAGE>
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 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,
<PAGE>
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 to provide for the conversion of Securities
pursuant to Article Seventeen hereof if the terms of such Securities
provide for such conversion pursuant to Section 3.1 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 the right,
which is also absolute and unconditional, of any Holder to require
conversion of his Securities pursuant to Article Seventeen hereof if
the terms of such Securities provide for convertibility pursuant to
Section 3.1, 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.
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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 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 Currency
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 Currency
Conversion Rate and the Currency 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
Currency 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 Currency 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, "Currency 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
<PAGE>
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.
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
<PAGE>
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.
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;
<PAGE>
(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
(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.
<PAGE>
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, without limitation, 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, without limitation,
the costs and expenses of defending itself against or investigating
any 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
<PAGE>
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 penultimate
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
<PAGE>
substantially equivalent to supervision or examination applicable
to United States institutional trustees,
in either case having a combined capital 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 7.9, 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 7.9,
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;
<PAGE>
(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 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, 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,
<PAGE>
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.
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.
<PAGE>
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 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 7.13, 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 7.13, 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 7.13):
(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 7.13 or from the exercise of any right of setoff
which the Trustee
<PAGE>
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;
(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
<PAGE>
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
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.
<PAGE>
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;
(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
<PAGE>
(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 Corporate Trust
Office of the Trustee is not located in the Borough of Manhattan, The
City of New York, New York, or otherwise upon an Issuer Request, there
shall be an authenticating agent (the "Authenticating Agent")
<PAGE>
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 Corporate Trust
Office of the Trustee is not located 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
<PAGE>
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 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 8.1 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
<PAGE>
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 Registrar for such series; the 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
<PAGE>
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 on 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 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 Eight, 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.
<PAGE>
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
(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 an 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
<PAGE>
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, The
City of New York, 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 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
<PAGE>
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.
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.
<PAGE>
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 the 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;
(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);
<PAGE>
(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 any 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) alter or impair the right
of any holder to convert Securities of any series the terms of which
provide for conversion, at the rate and upon the terms provided in the
Indenture, or (d) modify the provisions of this Indenture with respect
to the subordination of the Securities in a manner adverse to the
Holders thereof, or (e) 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
<PAGE>
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.
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
<PAGE>
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 Ten
complies with the applicable provisions of this Indenture.
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
<PAGE>
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.
ARTICLE ELEVEN
CONSOLIDATION, MERGER OR SALE
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, (a) that 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) that, 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,
<PAGE>
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 11.1. 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 11.1, 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 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 11.1, 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
<PAGE>
and upon Issuer Request, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) either:
(A) all Outstanding Securities of such series
theretofore authenticated and delivered and the Coupons,
if any appertaining thereto (other than (i) 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 (ii) 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
(B) with respect to all Outstanding Securities of such
series and the Coupons, if any, appertaining thereto,
described in (A) above not theretofore delivered to the
Trustee for cancellation:
(i) 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 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
(ii) 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.
<PAGE>
(2) 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;
(3) 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
(4) 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(1)(b);
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, (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 (d) any obligation
to convert into shares of Capital Stock the Securities of any series,
the terms of which provide for conversion; and provided further that
in the event a petition for relief under the Bankruptcy Reform Act of
1978 or a 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
<PAGE>
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(1)(B) 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 non-converted 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 l2.1 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
<PAGE>
series and the 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,
<PAGE>
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 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, (1) if any of
the Securities affected by such event are Fully Registered 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 as their names and addresses appear
in the Securities Register within the time prescribed and (2) 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
<PAGE>
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:
Corporate Secretary, 1330 Avenue of the Americas, New York, New York
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
<PAGE>
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.
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 purport 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 or 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
<PAGE>
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, 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 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
<PAGE>
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 Fourteen shall be applicable to the Securities of any
series which are redeemable before their maturity or 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.
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
<PAGE>
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, the current conversion price or
rate, if applicable, that the right of the Holder to convert
Securities called for redemption shall terminate at the close of
business on the Redemption Date (or such other date as may be
specified as contemplated by Section 3.1 for Securities of any
series), if applicable, that Holders who want to convert Securities
called for redemption must satisfy the requirements for conversion
contained in such Securities, if applicable, 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
Security or Securities as aforesaid, may make a notation on such
Security of the payment of the redeemed portion thereof.
<PAGE>
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) 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 (other than any Securities called for
redemption on such date which have been converted prior to the date of
such deposit) 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.
For the purpose of such selection in case of redemption of
less than all of the Securities of any series, the Trustee and the
Issuer shall have the option to treat as Outstanding Securities any
Securities of such series which are surrendered for conversion after
the fifteenth day immediately preceding the mailing of notice of such
redemption and need not treat as Outstanding Securities any Securities
authenticated and delivered during such period in exchange for the
unconverted portion of any Securities converted in part during such
period.
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
<PAGE>
series so called for redemption shall cease to accrue and the right to
convert such Securities or portions thereof, if the terms of such
Securities provide for conversion pursuant to Section 3.1, shall
terminate at the close of business on the Redemption Date or such
other day as may be specified as contemplated by Section 3.1 for
Securities of such series. 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).
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 Paving 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 of 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.
If any Security called for redemption pursuant to Section
14.1 is converted pursuant to Article Seventeen, any monies deposited
with the Trustee for the purpose of paying or redeeming any such
Security shall be promptly paid to the Issuer.
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
<PAGE>
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
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.
<PAGE>
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.1. Applicability of Article. The provisions of
this Article Fifteen 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, (a) 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, 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 or (b) receive
credit for any Securities which have been converted pursuant to the
terms of such Securities; 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 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
<PAGE>
(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 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
<PAGE>
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 15.3.
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 Fifteen. Except
as aforesaid, any moneys (in the currency or currency unit described
in the 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
<PAGE>
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 15.3.
ARTICLE SIXTEEN
SUBORDINATION OF SUBORDINATED SECURITIES
SECTION 16.1. Agreement To Subordinate. The Issuer covenants
and agrees, and each Holder of Securities of any series of
Subordinated Debt issued under this Indenture (hereafter "Subordinated
Securities"), or any Coupons appertaining thereto, issued hereunder by
his acceptance thereof likewise covenants and agrees, that all
Subordinated Securities of such series, or any Coupons appertaining
thereto, shall be issued subject to the provisions of this Article
Sixteen; and each person holding any Security of such series, or any
Coupons appertaining thereto, whether upon original issue or upon
transfer, assignment or exchange thereof accepts and agrees that the
principal of, premium, if any, and interest on all Subordinated
Securities of such series, or any Coupons appertaining thereto, issued
hereunder shall, to the extent and in the manner set forth in this
Article Sixteen, be subordinated and subject in right to the prior
payment in full of all Senior Debt, but not to any other indebtedness
of the Issuer other than Senior Debt.
SECTION 16.2. Terms of Subordination. Anything in this
Indenture to the contrary notwithstanding, the indebtedness evidenced
by Subordinated Securities of any series, or any Coupons appertaining
thereto, shall be subordinate and junior in right of payment, to the
extent and in the manner hereafter set forth, to all Senior Debt of
the Issuer, whether outstanding at the date of this Indenture or
incurred after the date of this Indenture but not to any other
indebtedness of the Issuer other than Senior Debt.
(1) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to
the Issuer or to its creditors, as such, or to its property, and
in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Issuer, whether or not
involving insolvency or bankruptcy, then the holders of Senior
Debt shall be entitled to receive payment in full of all
principal and interest on all Senior Debt before the holders of
the Subordinated Securities of any series, or any Coupons
<PAGE>
appertaining thereto, are entitled to receive any payment on
account of principal or interest thereon, and to that end (but
subject to the power of a court of competent jurisdiction to make
other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Debt and the holders thereof with
respect to the subordinated indebtedness represented by the
Subordinated Securities of such series, or any Coupons
appertaining thereto, and the Holders thereof by a lawful plan of
reorganization under applicable bankruptcy law) the holders of
Senior Debt shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities, which may
be payable or deliverable in any such proceedings in respect of
the Subordinated Securities of such series, or any Coupons
appertaining thereto, except securities which are subordinate and
junior in right of payment to the payment of all Senior Debt then
outstanding; and
(2) in the event that pursuant to any provision of the
Indenture or the Subordinated Securities of any series, or any
Coupons appertaining thereto, the Subordinated Securities of such
series are declared or otherwise become due and payable before
their expressed maturity because of the occurrence of an Event of
Default hereunder or otherwise (under circumstances when the
provisions of the foregoing clause (1) shall not be applicable),
the holders of the Senior Debt outstanding at the time the
Subordinated Securities of such series, or any Coupons
appertaining thereto, so become due and payable shall be entitled
to receive payment in full of all principal of and interest on
all Senior Debt before the holders of the Subordinated Securities
of such series, or any Coupons appertaining thereto, are entitled
to receive any payment due solely by reason of such acceleration;
and
(3) in the event of any default in the payment of any Senior
Debt and during the continuance of any such default, no amount
shall be paid, whether in cash, property, securities, or
otherwise, in respect of the principal of or interest of the
Subordinated Securities of any series, or any Coupons
appertaining thereto, if either (a) notice of such default in
writing has been given to the Issuer by any holder or holders of
any Senior Debt; provided that judicial proceedings shall be
commenced with respect to such default within 30 days thereafter,
or (b) judicial proceedings shall be pending in respect of such
default.
No present or future holder of Senior Debt shall be prejudiced in his
right to enforce subordination of the Subordinated Securities of any
series, or any Coupons appertaining thereto, by any act or failure to
act on the part of the Issuer. The provisions of this Article Sixteen
are solely for the purpose of defining the relative
<PAGE>
rights of the holders of Senior Debt on the one hand, and the Holders
of the Subordinated Securities of such series, or any Coupons
appertaining thereto, on the other hand, and nothing herein shall
impair, as between the Issuer and the Holder of any of the
Subordinated Securities of such series, or any Coupons appertaining
thereto, the obligation of the Issuer, which is unconditional and
absolute, to pay to the Holder thereof the principal thereof and (to
the extent legally enforceable) interest on overdue principal thereon
in accordance with the terms of the Subordinated Securities of such
series, or any Coupons appertaining thereto, nor shall anything in
this Article Sixteen prevent the Trustee or the Holder of any of the
Subordinated Securities of such series, or any Coupons appertaining
thereto, from exercising all remedies otherwise permitted by
applicable law or under this Indenture upon default under this
Indenture, subject to the rights, if any, under this Article Sixteen
of holders of Senior Debt to receive cash, property or securities
otherwise payable or deliverable to the Holders of the Subordinated
Securities of such series, or any Coupons appertaining thereto. The
Issuer agrees, for the benefit of the holders of Senior Debt, that in
the event that any of the Subordinated Securities of such series is
declared or otherwise becomes due and payable before its expressed
maturity because of the occurrence of a default under this Indenture
(a) the Issuer will give prompt notice in writing of such happening to
the holders of Senior Debt and (b) all Senior Debt shall forthwith
become immediately due and payable upon demand regardless of the
expressed maturity thereof.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act in good
faith by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Article Sixteen,
regardless of any knowledge thereof any such holder may have or be
charged with.
SECTION 16.3. Subrogation of Subordinated Securities.
Subject to the payment in full of all Senior Debt, the Holders of the
Subordinated Securities of any series, or any Coupons appertaining
thereto, shall be subrogated to the rights of the holders of Senior
Debt to receive payments or distributions of cash, property or
securities of the Issuer applicable to the Senior Debt until the
principal of, interest on and (to the extent legally enforceable)
interest on overdue principal of the Subordinated Securities of such
series, or any Coupons appertaining thereto, shall be paid in full;
and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property
or securities to which the Holders of the Subordinated Securities of
such series, or any Coupons appertaining thereto, or the Trustee on
their behalf would be entitled except for the provisions of this
Article Sixteen, and no payment over pursuant to the provisions of
this Article Sixteen to the holders of Senior Debt by Holders of the
Subordinated Securities of
<PAGE>
such series, or any Coupons appertaining thereto, or the Trustee on
their behalf shall, as between the Issuer, its creditors other than
holders of Senior Debt and the Holders of the Subordinated Securities
of such series, or any Coupons appertaining thereto, be deemed to be a
payment by the Issuer to or on account of the Senior Debt; and no
payment or distribution of cash, property or securities to or for the
benefit of the Holders of Subordinated Securities pursuant to the
subrogation provision of this Article Sixteen, which would otherwise
have been paid to the holders of Senior Debt, shall be deemed to be a
payment by the Issuer to or for the account of the Subordinated
Securities of such series, or any Coupons appertaining thereto.
SECTION 16.4. Payments Over to Holders of Senior Debt. In
the event that, notwithstanding the provisions of Section 16.2, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, prohibited by the
provisions of Section 16.2, shall be received by the Trustee under
this Indenture or the Holders of the Subordinated Securities of any
series, or any Coupons appertaining thereto, before all Senior Debt is
paid in full or provision is made for such payment in accordance with
its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such
Senior Debt or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Senior Debt remaining unpaid until all such Senior Debt shall have
been paid in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to or for the holders of such
Senior Debt.
Upon any payment or distribution of assets of the Issuer
referred to in this Article Sixteen, the Trustee for any series of
Subordinated Securities, subject to the provisions of Section 7.1, and
the Holders of the Subordinated Securities of any series, or any
Coupons appertaining thereto, shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such
receivership, liquidation, reorganization, dissolution or other
winding-up proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to
the Holders of the Subordinated Securities of such series, or any
Coupons appertaining thereto, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of
the Senior Debt and other indebtedness of the Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article
Sixteen.
SECTION 16.5. Authorization by Holders of Subordinated
Securities. Each Holder of a Subordinated Security of any series by
his acceptance thereof authorizes the Trustee for such series on his
behalf to take such action as may be necessary or
<PAGE>
appropriate to effectuate the subordination provided in this Article
Sixteen and appoints the Trustee his attorney-in-fact for any and all
such purposes.
SECTION 16.6. Notice to Trustee. The Issuer shall give
prompt written notice to the Trustee and to any Paying Agent of any
fact known to the Issuer which would prohibit the making of any
payment of moneys to or by the Trustee or any Paying Agent in respect
of the Subordinated Securities of any series, or any Coupons
appertaining thereto, pursuant to the provisions of this Article
Sixteen. Notwithstanding the provisions of this Article Sixteen or any
other provision of this Indenture, the Trustee and any Paying Agent
shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of moneys to or by the
Trustee or any Paying Agent in respect of the Subordinated Securities
of any series, or any Coupons appertaining thereto, pursuant to the
provisions of this Article Sixteen, unless and until the Trustee or
any Paying Agent, respectively, shall have received written notice
thereof from the Issuer or a holder or holders of Senior Debt or from
any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject (as between itself and the Holders of the
Subordinated Securities of any series) to the provisions of Section
7.1, or any Paying Agent, respectively, shall be entitled in all
respects to assume that no such facts exist; provided, that if on a
date not less than three Business Days prior to the date upon which by
the terms hereof any such moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of or (to
the extent legally enforceable) interest on overdue principal of any
Subordinated Securities of any series, or any Coupons appertaining
thereto) the Trustee or any Paying Agent shall not have received with
respect to such moneys the notice provided in this Section 16.6, then,
anything herein contained to the contrary notwithstanding, the Trustee
or any Paying Agent, as the case may be, shall be entitled to apply
such moneys for the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by
it on or after such prior date and shall be entitled in all respects
to assume that no such facts exist; and provided, further, that the
Trustee or any Paying Agent, as the case may be, shall be entitled to
pay to the Holders of Subordinated Securities of any series, or any
Coupons appertaining thereto, such moneys deposited with it pursuant
to Article Twelve and shall be entitled to assume that no such facts
exist in the event that the proper instruments acknowledging
satisfaction of and discharging of this Indenture shall have been
received by the Trustee for their execution by the Trustee pursuant to
Section 12.1.
Notwithstanding anything to the contrary hereinbefore set
forth, nothing shall prevent the application by any Paying Agent or
the Trustee for any series of Subordinated Securities of any moneys
deposited with such Paying Agent or such Trustee for the purpose of
payment of or on account of the principal of or interest on or (to the
extent legally enforceable) interest on overdue principal of the
Subordinated
<PAGE>
Securities of any series, or any Coupons appertaining thereto, in the
case of any such Paying Agent, if it did not have knowledge of facts
which would prohibit such application pursuant to this Article
Sixteen, or, in the case of the Trustee, prior to the receipt by it of
written notice as aforesaid.
The Trustee for any series of Subordinated Securities shall
be entitled to rely on the delivery to it of a written notice by a
person representing himself to be a holder of Senior Debt (or a
trustee on behalf of such holder) to establish that such notice has
been given by a holder of Senior Debt or a trustee on behalf of any
such holder. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
person as a holder of Senior Debt, or a trustee on behalf of any such
holder, to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such person, the extent to which such
person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this
Article Sixteen, and if such evidence is not furnished the Trustee may
defer any payment to such person pending appropriate determination as
to the right of such person to receive such payment.
SECTION 16.7. Trustee's Relation to Senior Debt. The Trustee
for any series of Subordinated Securities in its individual capacity
shall be entitled to be a holder of Senior Debt and shall be entitled
to all the rights set forth in this Article Sixteen in respect of any
Senior Debt at any time held by it, to the same extent as any other
holder of Senior Debt.
With respect to the holders of Senior Debt, the Trustee for
any series of Subordinated Securities undertakes to perform or to
observe only such of its covenants and obligations as are specifically
set forth in this Article Sixteen, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read
into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and the
Trustee shall not be liable to any holder of Senior Debt if it shall
pay over or deliver to Holders of Subordinated Securities of any
series, or any Coupons appertaining thereto, the Issuer or any other
person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article Sixteen or otherwise.
<PAGE>
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 17.1. Applicability of Article. Securities of any
series which are convertible into Capital Stock at the option of the
Holders thereof shall be convertible in accordance with their terms
and (unless otherwise specified in one or more indentures supplemental
hereto or in a resolution of the Board of Directors as contemplated by
Section 3.1 for Securities of any series) in accordance with this
Article. Each reference in this Article Seventeen to "a Security" or
"the Securities" refers to the Securities of the particular series
that is convertible into Capital Stock. Each reference in this Article
to "Underlying Stock" into which Securities of any series are
convertible refers to the class of Capital Stock into which the
Securities of such series are convertible in accordance with their
terms (as specified as contemplated by Section 3.1). If more than one
series of Securities with conversion privileges are Outstanding at any
time, the provisions of this Article Seventeen shall be applied
separately to each such series.
SECTION 17.2. Right of Holders to Convert Securities.
Subject to and upon compliance with the terms of the Securities and
this Article Seventeen, at the option of the Holder thereof, any
Security of any series of any authorized denomination, or any portion
of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in
the Securities of such series, be converted into duly authorized,
validly issued, fully paid and nonassessable shares of the class, or
combination of classes, of Underlying Stock, as specified in such
Security, at the conversion rate for each $1,000 principal amount of
Securities in effect on the conversion date, or if such Security or
portion thereof shall have been called for redemption, then in respect
of such Security or portion thereof until and including, but not after
(unless the Issuer shall default in payment due upon the redemption
thereof) the close of business on the date fixed for redemption except
that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such option to convert
shall terminate upon receipt of written notice of the exercise of such
option to redeem, or if an adjustment in the Conversion Price has
taken place pursuant to the provisions of Section 17.5, then at the
applicable conversion rate as so adjusted, upon surrender of the
Security or Securities, the principal amount of which is so to be
converted, to the Issuer at any time during usual business hours at
the office or agency to be maintained by it in accordance with the
provisions of Section 4.2 accompanied by a written notice of election
to convert as provided in Section 17.3 and, if so required by the
Issuer and the Trustee, by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder or his attorney duly authorized in writing. All
Securities surrendered for conversion shall, if surrendered to the
Issuer or any conversion agent, be delivered to the Trustee for
cancellation and canceled by it, or shall, if surrendered to the
Trustee, be canceled by it, as provided in Section 3.9.
<PAGE>
The initial conversion price (the "Conversion Price") in
respect of a series of Securities shall be as specified in the
Securities of such series. The Conversion Price will be subject to
adjustment on the terms set forth in Section 17.5 or such other or
different terms, if any, as may be specified pursuant to Section 3.1
for Securities of such series. Provisions of this Indenture that apply
to conversion of all of a Security also apply to conversion of a
portion of it.
SECTION 17.3. Issuance of Shares of Underlying Stock on
Conversion. As promptly as practicable after the surrender, as herein
provided, of any Security or Securities for conversion, the Issuer
shall deliver or cause to be delivered at its said office or agency to
or upon the written order of the Holder of the Security or Securities
so surrendered a certificate or certificates representing the number
of duly authorized, validly issued, fully paid and nonassessable
shares of Underlying Stock into which such Security or Securities may
be converted in accordance with the terms thereof and the provisions
of this Article Seventeen. Prior to the delivery of such certificate
or certificates, the Issuer shall require a written notice at its said
office or agency from the Holder of the Security or Securities so
surrendered stating that the Holder irrevocably elects to convert such
Security or Securities, or, if less than the entire principal amount
thereof is to be converted, stating the portion thereof to be
converted. Such notice shall also state the name or names (with
address and social security or other taxpayer identification number)
in which said certificate or certificates are to be issued. Such
conversion shall be deemed to have been made at the time that such
Security or Securities shall have been surrendered for conversion and
such notice shall have been received by the Issuer or the Trustee, the
rights of the Holder of such Security or Securities as a Holder shall
cease at such time, the person or persons entitled to receive the
shares of Underlying Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become the
record holder or holders of such shares of Underlying Stock at such
time and such conversion shall be at the Conversion Price in effect at
such time. In the case of any Security of any series which is
converted in part only, upon such conversion, the Issuer shall execute
and the Trustee or any Authenticating Agent shall authenticate and
deliver to the Holder thereof, as requested by such Holder, a new
Security or Securities of such series of authorized denominations in
aggregate principal amount equal to the unconverted portion of such
Security.
If the last day on which a Security may be converted is not
a Business Day in a place where the conversion agent for the
applicable series of Securities is located, the Security may be
surrendered to that conversion agent on the next succeeding day that
is a Business Day with the same effect as if surrendered on such last
day.
The Issuer will not be required to deliver certificates for
shares of Underlying Stock upon conversion while its stock transfer
books are closed for a meeting of
<PAGE>
shareholders or for the payment of dividends or for any other purpose,
but certificates for shares of Underlying Stock shall be delivered as
soon as the stock transfer books shall again be opened.
SECTION 17.4. No Payment or Adjustment for Interest or
Dividends. Unless otherwise specified as contemplated by Section 3.1
for Securities of such series, Securities surrendered for conversion
during the period from the close of business on any regular record
date (or special record date for payment of defaulted interest) next
preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (except Securities called for redemption on a
redemption date within such period) when surrendered for conversion
must be accompanied by payment of an amount equal to the interest
thereon which the Holder is to receive on such Interest Payment Date.
Payment of interest shall be made, as of such Interest Payment Date or
such date, as the case may be, to the Holder of the Securities as of
such regular or special record date, as applicable. Except where
Securities surrendered for conversion must be accompanied by payment
as described above, no interest on converted Securities will be
payable by the Issuer on any Interest Payment Date subsequent to the
date of conversion. No other payment or adjustment for interest or
dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any Original Issue Discount Security,
the fixed number of shares of Underlying Stock into which such
Security is convertible delivered by the Issuer to the Holder thereof
shall be applied, first, to pay the accrued original issue discount
attributable to the period from the date of issuance to the date of
conversion of such Security, and, second, to pay the balance of the
principal amount of such Security.
SECTION 17.5. Adjustment of Conversion Price. Unless
otherwise specified as contemplated by Section 3.1 for Securities of
such series, the Conversion Price shall be adjusted from time to time
by the Issuer as follows:
(a) If the Issuer shall hereafter pay a dividend or make a
distribution to substantially all holders of the outstanding shares of
Underlying Stock in shares of such Underlying Stock, the Conversion
Price in effect at the opening of business on the date following the
date fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be reduced to an amount
equal to the product of (x) such Conversion Price and (y) a fraction
of which (i) the numerator shall be the number of shares of Underlying
Stock outstanding at the close of business on the Record Date (as
defined in Section 17.5(g)) fixed for such determination and (ii) the
denominator shall be the sum of (A) such number of shares and (B) the
total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the
opening of business on the day following such Record Date. If any
dividend or distribution of the type described in this Section 17.5(a)
is declared but not so paid or made, the Conversion Price shall again
<PAGE>
be adjusted to the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
(b) If the Issuer shall issue rights or warrants to
substantially all holders of the outstanding shares of Underlying
Stock entitling them to subscribe for or purchase shares of such
Underlying Stock at a price per share less than the Current Market
Price (as defined in Section 17.5(g)) on the Record Date fixed for the
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price shall be adjusted so that the same
shall be an amount equal to the product of (x) the Conversion Price in
effect at the opening of business on the date after such Record Date
and (y) a fraction of which (i) the numerator shall be the sum of (A)
the number of shares of Underlying Stock outstanding at the close of
business on such Record Date plus (B) the number of shares which the
aggregate exercise price of the total number of rights or warrants so
distributed would purchase at such Current Market Price, and of which
(ii) the denominator shall be the sum of (A) the number of shares of
Underlying Stock outstanding on the close of business on such Record
Date plus (B) the total number of additional shares of Underlying
Stock to be issued upon exercise of the rights or warrants so
distributed. Such adjustment shall become effective immediately after
the opening of business on the day following the Record Date fixed for
determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of Underlying Stock are not
delivered pursuant to such rights or warrants, upon the expiration or
termination of such rights or warrants, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of
shares of Underlying Stock actually delivered. If such rights or
warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or
purchase shares of Underlying Stock at less than such Current Market
Price, and in determining the aggregate offering price of such shares
of Underlying Stock, there shall be taken into account any
consideration received for such rights or warrants, with the value of
such consideration, if other than cash, to be determined by the Board
of Directors.
(c) If the Issuer shall (1) subdivide the outstanding shares
of Underlying Stock into a greater number of shares or (2) combine or
reclassify (other than a reclassification to which Section 17.7
applies) the outstanding shares of Underlying Stock into a smaller
number of shares, the Conversion Price in effect immediately prior to
such action shall be adjusted so that the Holder of any Security of
such series thereafter surrendered for conversion shall be entitled to
receive the number of shares of Underlying Stock that he would have
owned immediately
<PAGE>
following such action had such Security of such series been converted
immediately prior thereto. An adjustment made pursuant to this Section
17.5 (c) shall become effective immediately after the opening of
business on the day following the day upon which such subdivision,
reclassification or combination becomes effective.
(d) If the Issuer shall, by dividend or otherwise,
distribute to substantially all holders of Underlying Stock shares of
any other class of Capital Stock of the Issuer (other than any
dividends or distributions to which Section 17.5(a) applies) or
evidences of its indebtedness, cash or other assets (including
securities, but excluding any rights or warrants of a type referred to
in Section 17.5(b) and dividends and distributions paid exclusively in
cash and excluding any Capital Stock, evidences of indebtedness, cash
or assets distributed upon a merger or consolidation to which Section
17.7 applies) (the foregoing hereinafter in this Section 17.5(d)
called the "Distributed Securities"), then, in each such case, the
Conversion Price shall be reduced so that the same shall be an amount
equal to the product of (x) the Conversion Price in effect immediately
prior to the close of business on the Record Date (as defined in
Section 17.5(g)) with respect to such distribution and (y) a fraction
of which (i) the numerator shall be the result of (A) the Current
Market Price (determined as provided in Section 17.5(g)) on such date
minus (B) the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution) on such date of the portion of the Distributed
Securities so distributed applicable to one share of Underlying Stock
and (ii) the denominator shall be such Current Market Price, such
reduction to become effective immediately prior to the opening of
business on the day following the Record Date; provided, however, that
in the event the then fair market value (as so determined) of the
portion of the Distributed Securities so distributed applicable to one
share of Underlying Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of Securities of
such series shall have the right to receive upon conversion of a
Security of such series (or any portion thereof) the amount of
Distributed Securities such Holder would have received had such Holder
converted such Security of such series (or portion thereof)
immediately prior to such Record Date. If such dividend or
distribution is not so paid or made, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect
if such dividend or distribution had not been declared. If the Board
of Directors determines the fair market value of any distribution for
purposes of this Section 17.5(d) by reference to the actual or when
issued trading market for any securities comprising all or part of
such distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price
pursuant to Section 17.5(g) to the extent possible.
<PAGE>
Rights or warrants distributed by the Issuer to
substantially all holders of shares of Underlying Stock entitling the
holders thereof to subscribe for or purchase shares of any class of
the Issuer's Capital Stock (either initially or under certain
circumstances), which rights or warrants until the occurrence of a
specified event or events ("Trigger Event"): (i) are deemed to be
transferred with such shares of Underlying Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances
of shares of Underlying Stock, shall be deemed not to have been
distributed for purposes of this Section 17.5(d) (and no adjustment to
the Conversion Price under this Section 17.5(d) shall be required)
until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an
appropriate adjustment to the Conversion Price under this Section
17.5(d) shall be made. If any such rights (including the Rights (as
defined below)) or warrants, including rights or warrants distributed
prior to the date of this Indenture (including the Rights), shall
become exercisable to purchase different securities, evidences of
indebtedness or other assets upon the occurrence of certain subsequent
events, then the occurrence of each such event shall be deemed to be
the date of issuance and record date with respect to new rights or
warrants (and a termination or expiration of the existing rights or
warrants without exercise by the holder thereof). In addition, in the
event of any distribution (or deemed distribution) of rights or
warrants (including the Rights), or any Trigger Event with respect
thereto, that was taken into account for purposes of calculating a
distribution amount for which an adjustment to the Conversion Price
under this Section 17.5 was made, (1) in the case of any such rights
(including the Rights) or warrants which shall all have been redeemed
or repurchased without exercise by any of the holders thereof, the
Conversion Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as
the case may be, as though it were a cash distribution equal to the
per share redemption or repurchase price received by a holder or
holders of shares of Underlying Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants
and thus received such price), made to all holders of shares of the
class of Capital Stock into which Securities of such series are
convertible as of the date of such redemption or repurchase, and (2)
in the case of such rights (including the Rights) or warrants which
shall have expired or been terminated without exercise by any holders
thereof, the Conversion Price shall be readjusted as if such rights
(including the Rights) and warrants had not been issued. In lieu of
any adjustment to the Conversion Price otherwise required by this
Section 17.5(d) as a result of a Trigger Event affecting rights (the
"Rights") distributed pursuant to the Issuer's Rights Agreement dated
as of November 1, 1995, as amended (the "Rights Plan"), the Issuer may
amend such Rights Plan to provide that upon conversion of the
Securities of such series the holder thereof will receive, in addition
to the shares of Underlying Stock issuable upon such conversion, the
Rights which attached to such shares of Underlying Stock or would
<PAGE>
have attached to such shares if the Rights had not become separated
from the Underlying Stock pursuant to the provisions of the Rights
Plan.
Notwithstanding any other provision of this Section 17.5(d)
to the contrary, rights, warrants, evidences of indebtedness, other
securities, cash or other assets (including, without limitation, any
rights distributed pursuant to any stockholder rights plan) shall be
deemed not to have been distributed for purposes of this Section
17.5(d) if the Issuer makes proper provision so that each Holder of
Securities of such series who converts a Security of such series (or
any portion thereof) after the date fixed for determination of
stockholders entitled to receive such distribution shall be entitled
to receive upon such conversion, in addition to the shares of
Underlying Stock issuable upon such conversion, the amount and kind of
such distributions that such Holder would have been entitled to
receive if such Holder had, immediately prior to such determination
date, converted such Security of such series into shares of Underlying
Stock.
For purposes of this Section 17.5(d) and Sections 17.5(a)
and (b), any dividend or distribution to which this Section 17.5(d) is
applicable that also includes (x) shares of Underlying Stock, (y)
rights or warrants to subscribe for or purchase shares of Underlying
Stock to which Section 17.5(b) applies or (z) both (x) and (y), shall
be deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, assets, shares of capital stock, rights or
warrants other than such shares of Underlying Stock or rights or
warrants to which Section 17.5(b) applies (and any Conversion Price
reduction required by this Section 17.5(d) with respect to such
dividend or distribution shall then be made) immediately followed by
(2) a dividend or distribution of such shares of Underlying Stock or
such rights or warrants (and any further Conversion Price reduction
required by Section 17.5(a) and (b) with respect to such dividend or
distribution shall then be made, except that for purposes of
calculating such further Conversion Price reduction, if any, (a) the
Record Date of such dividend or distribution shall be substituted for
the phrases "the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution", "Record Date
(as defined in Section 17.5(g)) fixed for such determination" and
"Record Date" for purposes of Section 17.5(a) and for the phrases "the
Record Date fixed for the determination of stockholders entitled to
receive such rights or warrants" and "such Record Date" for purposes
of Section 17.5(b) and (b) any shares of Underlying Stock included in
such dividend or distribution shall not be deemed "outstanding at the
close of business on the Record Date fixed for such determination" for
purposes of Section 17.5(a)).
(e) If the Issuer shall, by dividend or otherwise,
distribute to substantially all holders of shares of Underlying Stock
cash (the "Cash Distribution") (excluding any cash that is distributed
upon a merger or consolidation to which
<PAGE>
Section 17.7 applies or as part of a distribution referred to in
Section 17.5(d) for which no adjustment to the Conversion Price was
made) in an aggregate amount that, taken together with (1) the
aggregate amount of any other such distributions to all holders of its
Underlying Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to this Section 17.5(e) has been made,
and (2) the aggregate amount of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration
payable in respect of any tender offer by the Issuer or any Subsidiary
for all or any portion of the Underlying Stock concluded within the 12
months preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to Section 17.5(f) has been
made, exceeds 15% of the product of (x) the Current Market Price
(determined as provided in Section 17.5(g)) on the Record Date with
respect to such distribution and (y) the number of shares of
Underlying Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date, the
Conversion Price shall be reduced so that the same shall equal an
amount equal to the product of (x) the Conversion Price in effect
immediately prior to the close of business on such Record Date and (y)
a fraction of which (i) the numerator shall be the result of (A) the
Current Market Price on the Record Date minus (B) an amount equal to
the result of (p) the aggregate amount of the Cash Distribution and
(2) above divided by (q) the number of shares of Underlying Stock
outstanding on the Record Date and (ii) the denominator shall be equal
to the Current Market Price on such Record Date; provided, however,
that in the event the portion of the cash so distributed applicable to
one share of Underlying Stock is equal to or greater than the Current
Market Price of the Underlying Stock on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that
each Holder of Securities of such series shall have the right to
receive upon conversion of a Security of such series (or any portion
thereof) the amount of cash such Holder would have received had such
Holder converted such Security of such series (or portion thereof)
immediately prior to such Record Date. If such dividend or
distribution is not so paid or made, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect
if such dividend or distribution had not been declared.
In lieu of making any adjustment to the Conversion Price
pursuant to the immediately preceding paragraph, the Issuer may elect
to reserve an amount of cash for distribution to the Holders of
Securities of such series upon the conversion of the Securities of
such series so that any such Holder converting Securities of such
series will receive upon such conversion, in addition to the shares of
Underlying Stock and other items to which such Holder is entitled, the
full amount of cash which such Holder would have received if such
Holder had, immediately prior to the Record Date for such distribution
of cash, converted its Securities of such series into
<PAGE>
Underlying Stock, together with any interest accrued with respect to
such amount, in accordance with this paragraph. The Issuer may make
such election by providing an Officers' Certificate to the Trustee to
such effect on or prior to the payment date for any such distribution
and depositing with the Trustee on or prior to such date an amount of
cash equal to the aggregate amount that the Holders of Securities of
such series would have received if such Holders had, immediately prior
to the Record Date for such distribution, converted all of the
Securities of such series into Underlying Stock. Any such funds so
deposited by the Issuer with the Trustee shall be invested by the
Trustee in Government Obligations with a maturity not more than three
months from the date of issuance. Upon conversion of Securities of
such series by a Holder thereof, such holder shall be entitled to
receive, in addition to the Underlying Stock issuable upon conversion,
an amount of cash equal to the amount such Holder would have received
if such Holder had, immediately prior to the Record Date for such
distribution, converted its Securities of such series into Underlying
Stock, along with such Holder's pro rata share of any accrued interest
earned as a consequence of the investment of such funds. Promptly
after making an election pursuant to this paragraph, the Issuer shall
give or shall cause to be given notice to all Holders of Securities of
such series of such election, which notice shall state the amount of
cash per $1,000 principal amount of Securities of such series such
Holders shall be entitled to receive (excluding interest) upon
conversion of the Securities of such series as a consequence of the
Issuer having made such election. Any cash distribution to all holders
of Underlying Stock as to which the Issuer makes the election
permitted by this paragraph and as to which the Issuer has complied
with the requirements of such Section shall be treated as not having
been made for all purposes of this Section 17.5(e).
(f) If a tender offer made by the Issuer or any Subsidiary
for all or any portion of the Underlying Stock expires and such tender
offer (as amended upon the expiration thereof) requires the payment to
stockholders (based on the acceptance (up to any maximum number of
shares specified in the terms of the tender offer) of Purchased Shares
(as defined below)) of an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) that, taken
together with (1) the aggregate of the cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration
of such tender offer, of consideration payable in respect of any other
tender offers, by the Issuer or any Subsidiary for all or any portion
of the Underlying Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to this Section 17.5(f) has been made and (2) the aggregate
amount of any distributions to all holders of Underlying Stock made
exclusively in cash within 12 months preceding the expiration of such
tender offer and in respect of which no adjustment pursuant to
<PAGE>
Section 17.5(e) has been made, exceeds 15% of the product of (x) the
Current Market Price (determined as provided in Section 17.5(g)) as of
the last time (the "Expiration Time") tenders could have been made
pursuant to such tender offer (as it may be amended) and (y) the
number of shares of Underlying Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date
of the Expiration Time, the Conversion Price shall be adjusted so that
the same shall equal an amount equal to the product of (x) the
Conversion Price in effect immediately prior to the close of business
on the date of the Expiration Time and (y) a fraction of which (i) the
numerator shall be the result of (A) the product of (p) the number of
shares of Underlying Stock outstanding (including any tendered shares)
on the Expiration Time and (q) the Current Market Price of the
Underlying Stock on the Expiration Time minus (B) the fair market
value (determined as aforesaid) of the aggregate consideration to be
paid to stockholders based on the acceptance (up to any maximum number
of shares specified in the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum number of shares,
being referred to as the "Purchased Shares") and (ii) the denominator
shall be the product of (A) the number of shares of Underlying Stock
outstanding (less any Purchased Shares) on the Expiration Time and (B)
the Current Market Price of the Underlying Stock on the Expiration
Time, such reduction (if any) to become effective immediately prior to
the opening of business on the day following the Expiration Time. If
the Issuer is obligated to purchase shares pursuant to any such tender
offer, but the Issuer is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such tender offer had not been made.
If the application of this Section 17.5(f) to any tender offer would
result in an increase in the Conversion Price, no adjustment shall be
made for such tender offer under this Section 17.5(f).
(g) For purposes of this Section 17.5, the following terms
shall have the meaning indicated:
(1) "closing price" with respect to any securities on any
day means the last reported sale price on such day or, if no such
sale takes place on such day, the average of the reported high
and low prices on such day, in each case on The Nasdaq Stock
Market or New York Stock Exchange, as applicable, or, if such
security is not listed or admitted to trading on such national
market or exchange, on the principal national securities exchange
or quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted to
trading on any national securities exchange or quotation system,
the average of the high and low prices of such security on
<PAGE>
the over-the-counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available, in
such manner as furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors for
that purpose, or, if not so available, a price determined in good
faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution.
(2) "Current Market Price" means the average of the daily
closing prices per share of the Underlying Stock for the 10
consecutive trading days immediately prior to the date in
question; provided, however, that (i) if the "ex" date (as
hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section 17.5(a),
(b), (c), (d), (e) or (f) occurs during such 10 consecutive
trading days, the closing price for each trading day prior to the
"ex" date for such other event shall be adjusted by multiplying
such closing price by the same fraction by which the Conversion
Price is so required to be adjusted as a result of such other
event, (ii) if the "ex" date for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 17.5(a), (b), (c), (d), (e) or (f) occurs on or after the
"ex" date for the issuance or distribution requiring such
computation and prior to the date in question, the closing price
for each trading day on and after the "ex" date for such other
event shall be adjusted by multiplying such closing price by the
reciprocal of the fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, and
(iii) if the "ex" date for the issuance or distribution requiring
such computation is prior to the date in question, after taking
into account any adjustment required pursuant to clause (i) or
(ii) of this proviso, the closing price for each trading day on
or after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value (as determined by
the Board of Directors in a manner consistent with any
determination of such value for purposes of Section 17.5(d) or
(f), whose determination shall be conclusive and described in a
Board Resolution) of the evidences of indebtedness, shares of
Underlying Stock or assets being distributed applicable to one
share of the Underlying Stock as of the close of business on the
day before such "ex" date. For purposes of this paragraph, the
term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Underlying Stock
trades regular way on the relevant exchange or in the relevant
market from which the closing price was obtained without the
right to receive such issuance or distribution, (ii) when used
with respect to any subdivision or combination of shares of
Underlying Stock, means the first date on which the
<PAGE>
Underlying Stock trades regular way on such exchange or in such
market after the time at which such subdivision or combination
becomes effective, and (iii) when used with respect to any tender
or exchange offer, means the first date on which the Underlying
Stock trades regular way on such exchange or in such market after
the Expiration Time of such offer. Notwithstanding the foregoing,
whenever successive adjustments to the Conversion Price are
called for pursuant to this Section 17.5, such adjustment shall
be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 17.5 and to
avoid unjust or inequitable results as determined in good faith
by the Board of Directors.
(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's-length
transaction.
(4) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders
of Capital Stock have the right to receive any cash, securities
or other property or in which the Capital Stock (or other
applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed
for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the
Board of Directors or by statute, contract or otherwise).
(5) "trading day" shall mean (x) if the applicable security
is listed or admitted for trading on the New York Stock Exchange
or another national securities exchange, a day on which the New
York Stock Exchange or such other national securities exchange is
open for business, as applicable, or (y) if the applicable
security is quoted on The Nasdaq Stock Market, a day on which
trades may be made thereon or (z) if the applicable security is
not so listed, admitted for trading or quoted, any day other than
a Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or
executive order to close.
(h) Certain adjustments in the conversion price in
accordance with the foregoing provisions could be taxable pursuant to
Section 305 of the Internal Revenue Code of 1986, as amended, as a
constructive distribution of stock to holders of the convertible Debt
Securities at the time of the adjustment in the conversion rate to the
extent of the value of such adjustment. Accordingly, the Issuer may
make such reduction in the Conversion Price, in addition to those
required by Sections 17.5(a), (b), (c), (d), (e) and (f), as the Board
of Directors considers to be advisable to avoid or diminish any income
tax to holders of Underlying Stock or rights to purchase
<PAGE>
Underlying Stock resulting from any dividend or distribution of stock
(or rights to acquire stock) or from any event treated as such for
income tax purposes.
To the extent permitted by applicable law, the Issuer from
time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least 20 days, the reduction is
irrevocable during the period and the Board of Directors has made a
determination that such reduction would be in the Issuer's best
interests, which determination shall be conclusive and described in a
Board Resolution. Whenever the Conversion Price is reduced pursuant to
the preceding sentence, the Issuer shall mail to the Holders of
Securities of such series at his or her last address appearing on the
register of Holders maintained for that purpose a notice of the
reduction at least 15 days prior to the date the reduced Conversion
Price takes effect, and such notice shall state the reduced Conversion
Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this Section 17.5(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article Seventeen shall be made by the
Issuer and shall be made to the nearest cent or to the nearest 100th
of a share, as the case may be. No adjustment need be made for a
change in the par value or no par value of the Underlying Stock.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Issuer shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Issuer shall prepare
a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment
becomes effective and shall mail such notice of such adjustment of the
Conversion Price to each Holder of Securities of such series at his or
her last address appearing on the register of Holders maintained for
that purpose within 20 days of the effective date of such adjustment.
Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) In any case in which this Section 17.5 provides that an
adjustment shall become effective immediately after a Record Date for
an event, the Issuer may defer until the occurrence of such event
issuing to the Holder of any Security of such series converted after
such Record Date and before the occurrence of such event the
additional shares of Underlying Stock issuable upon such conversion by
reason of the
<PAGE>
adjustment required by such event over and above the Underlying Stock
issuable upon such conversion before giving effect to such adjustment.
(l) For purposes of this Section 17.5, the number of shares
of any class of Capital Stock at any time outstanding shall not
include shares held in the treasury of the Issuer but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares such shares of such class of Capital Stock. The
Issuer shall not pay any dividend or make any distribution on shares
of any class of Capital Stock held in the treasury of the Issuer.
(m) In the event that at any time, as a result of shares of
any other class of Capital Stock of the Issuer becoming issuable in
exchange or substitution for or in lieu of shares of Underlying Stock
or as a result of an adjustment made pursuant to subsection (a) or (c)
above, the Holder of any Security of such series thereafter
surrendered for conversion shall become entitled to receive any shares
of the Issuer other than shares of Underlying Stock, thereafter the
number of such other shares so receivable upon conversion of any
Security shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions
with respect to the class of Capital Stock into which the Securities
of such series are convertible contained in subsections (a) to (l)
above, and the provisions of this Article Seventeen with respect to
the class of Capital Stock into which the Securities of such series
are convertible shall apply on like terms to any such other shares.
(n) The conversion rate with respect to any Original Issue
Discount Securities, the terms of which provide for convertibility,
shall not be adjusted during the term of such Original Issue Discount
Securities for accrued original issue discount.
(o) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the provisions
of this Section 17.5 shall apply separately to events affecting each
such class.
SECTION 17.6. No Fractional Shares to be Issued. No
fractional shares of Underlying Stock shall be issued upon conversion
of Securities. If more than one Security of any series shall be
surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate principal amount of the
Securities of such series (or specified portions thereof to the extent
permitted hereby) so surrendered. Instead of a fraction of a share of
Underlying Stock which would otherwise be issuable upon conversion of
any Security or Securities (or specified portions thereof), the Issuer
shall pay a cash adjustment in respect of such fraction of a share in
an amount equal to the same fractional interest of the closing price
per
<PAGE>
share (as defined in Section 17.5(g)(1)) of Underlying Stock on the
Business Day next preceding the day of conversion.
SECTION 17.7. Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur: (i) any
reclassification or change of the outstanding shares of Underlying
Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination), (ii) any consolidation, merger or
combination of the Issuer with another corporation as a result of
which holders of Capital Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect
to or in exchange for such Underlying Stock, or (iii) any sale or
transfer of the properties and assets of the Issuer as, or
substantially as, an entirety to any other corporation as a result of
which holders of Underlying Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect
to or in exchange for such Underlying Stock, then the Issuer or the
successor or purchasing corporation, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required
to so comply) providing that the Securities of such series shall be
convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination or sale
by a holder of a number of shares of Underlying Stock issuable upon
conversion of the Securities of such series (assuming, for such
purposes, a sufficient number of authorized shares of Underlying Stock
available to convert all such Securities of such series) immediately
prior to such reclassification, change, consolidation, merger,
combination or sale assuming such holder of Underlying Stock did not
exercise his or her rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange or sale (provided, that if
the kind or amount of securities, cash or other property receivable
upon such consolidation, merger, statutory exchange or sale is not the
same for each share of Underlying Stock in respect of which such
rights of election have not been exercised ("non-electing share"),
then, for the purposes of this Section 17.7, the kind and amount of
securities, cash or other property receivable upon such consolidation,
merger, statutory exchange or sale for each non-electing share shall
be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article
Seventeen. If, in the case of any such reclassification, change,
consolidation, merger, combination or sale, the stock or other
securities and assets receivable thereupon by a holder of shares of
Underlying Stock includes shares of stock or other securities and
assets of a corporation other than the successor or purchasing
corporation, as the case may be, in such
<PAGE>
reclassification, change, consolidation, merger, combination or sale,
then such supplemental indenture shall also be executed by such other
corporation and shall contain such additional provisions to protect
the interests of the holders of the Securities of such series as the
Board of Directors shall reasonably consider necessary by reason of
the foregoing.
The Issuer shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder of Securities of
such series at his or her address appearing on the register of Holders
for that purpose within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 17.7 shall similarly
apply to successive reclassifications, changes, consolidations,
mergers, combinations and sales.
If this Section 17.7 applies to any event or occurrence,
Section 17.5 shall not apply.
SECTION 17.8. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action. With respect to the
Securities of any series, in case:
(a) the Issuer shall authorize the issuance to all holders
of Underlying Stock of rights or warrants to subscribe for or
purchase shares of its Underlying Stock or of any other right;
(b) the Issuer shall authorize the distribution to all
holders of Underlying Stock of evidences of its indebtedness or
assets (except for the exclusions with respect to certain
dividends set forth in Section 17.5(c));
(c) of any subdivision, combination or reclassification of
Underlying Stock or of any consolidation or merger to which the
Issuer is a party and for which approval by the shareholders of
the Issuer is required, or of the sale of all or substantially
all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the company;
then the Issuer shall cause to be filed with the Trustee and at the
office or agency maintained for the purpose of conversion of
Securities of such series pursuant to Section 4.2, and shall cause to
be mailed to the Holders of Securities of such series, at their last
addresses as they shall appear upon the registration books of the
Issuer, at least ten days prior to the applicable record date
hereinafter specified, a notice stating
<PAGE>
(i) the date as of which the holders of Underlying Stock to be
entitled to receive any such rights, warrants or distribution are to
be determined, or (ii) the date on which any such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action is expected to
become effective, and the date as of which it is expected that holders
of record of Underlying Stock shall be entitled to exchange their
Underlying Stock of such class for securities or other property, if
any, deliverable upon such subdivision, combination, reclassification,
consolidation, merger, sale, dissolution, liquidation, winding up or
other action. The failure to give the notice required by this Section
17.8 or any defect therein shall not affect the legality or validity
of any distribution, right, warrant, subdivision, combination,
reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or other action, or the vote upon any of the
foregoing. Such notice shall also be published by and at the expense
of the Issuer not later than the aforesaid filing date at least once
in an Authorized Newspaper.
SECTION 17.9. Covenant to Reserve Shares for Issuance on
Conversion of Securities. The Issuer covenants that at all times it
will reserve and keep available out of its Underlying Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of
Securities of any series as herein provided, such number of shares of
Underlying Stock as shall then be issuable upon the conversion of all
Outstanding Securities of such series. The Issuer covenants that all
shares of Underlying Stock which shall be so issuable shall, when
issued or delivered, be duly and validly issued shares of authorized
Underlying Stock, and shall be fully paid and nonassessable, free of
all liens and charges and not subject to preemptive rights and that,
upon conversion, the appropriate capital stock accounts of the Issuer
will be duly credited.
SECTION 17.10. Compliance with Governmental Requirements.
The Issuer covenants that if any shares of Underlying Stock required
to be reserved for purposes of conversion of Securities hereunder
require registration or listing with or approval of any governmental
authority under any Federal or State law, pursuant to the Securities
Act or the Exchange Act or any national or regional securities
exchange on which such Underlying Stock is listed at the time of
delivery of any shares of such Underlying Stock, before such shares
may be issued upon conversion, the Issuer will use its best efforts to
cause such shares to be duly registered, listed or approved, as the
case may be.
SECTION 17.11. Payment of Taxes Upon Certificates for Shares
Issued upon Conversion. The issuance of certificates for shares of
Underlying Stock upon the conversion of Securities shall be made
without charge to the converting Holders for any tax (including,
without limitation, all documentary and stamp taxes) in respect of the
issuance and delivery of such certificates, and such certificates
shall be issued in
<PAGE>
the respective names of, or in such names as may be directed by, the
Holders of Securities converted; provided, however, that the Issuer
shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the Holder of the Security
converted, and the Issuer shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Issuer the amount of such tax
or shall have established to the satisfaction of the Issuer that such
tax has been paid.
SECTION 17.12. Trustee's Duties with Respect to Conversion
Provisions. The Trustee and any conversion agent shall not at any time
be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of
the Conversion Price or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the registration under securities laws,
listing, validity or value (or the kind or amount) of any shares of
Underlying Stock, or of any other securities or property, which may at
any time be issued or delivered upon the conversion of any Security;
and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible or liable for any failure of the
Issuer to make any cash payment or to issue, transfer or deliver any
shares of stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion; and
the Trustee, subject to the provisions of Section 7.1, and any
conversion agent shall not be responsible or
<PAGE>
liable for any failure of the Issuer to comply with any of the
covenants of the Issuer contained in this Article Seventeen.
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,
by
-----------------------
Vice President
[Corporate Seal]
Attest:
- ---------------------------
Assistant Secretary
THE FIRST NATIONAL BANK
OF CHICAGO,
by
-----------------------
Authorized Officer
[Corporate Seal]
Attest:
- ---------------------------
Assistant Secretary
======================================================================
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;
<PAGE>
(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
Richard S. Ward
Executive Vice President,
General Counsel and
Corporate Secretary
November 13, 1996
ITT Corporation
1330 Avenue of the Americas
New York, New York 10019-5490
Re: Registration Statement on Form S-3
File No. 333-07221
Ladies and Gentlemen:
I am Executive Vice President, General Counsel and Corporate
Secretary of ITT Corporation, a Nevada corporation (the "Company"),
and in such capacity have represented the Company in connection with
the filing by the Company with the Securities and Exchange Commission
(the "Commission") of a Registration Statement on Form S-3 (the
"Registration Statement") with respect to (i) debt securities of the
Company, which may be senior (the "Senior Debt Securities") or
subordinated (the "Subordinated Debt Securities", and collectively
with the Senior Debt Securities, the "Debt Securities"); (ii) shares
of preferred stock, without par value, of the Company (the "Preferred
Stock"); (iii) depositary shares representing entitlement to all
rights and preferences of a share of Preferred Stock of a specific
series (the "Depositary Shares"); (iv) Common Stock, without par
value, of the Company (the "Common Stock"); and (v) warrants to
purchase Debt Securities, shares of Preferred Stock, Common Stock or
other securities or rights (the "Warrants"). The Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants are
referred to herein collectively as the "Offered Securities".
Capitalized terms not defined herein have the meaning given to them in
the Registration Statement.
In connection with the foregoing, I have examined originals, or
copies certified or otherwise identified to my satisfaction, of such
documents, corporate records and other instruments as I have deemed
necessary for the purposes of this opinion. Based thereon, I am of the
opinion that:
<PAGE>
(1) The Company is a corporation duly organized and validly
existing under the laws of the State of Nevada;
(2) The Warrants to purchase Debt Securities, when duly
authorized, executed, countersigned and delivered against, in
accordance with their terms, payment therefor, will be legally issued
and will constitute binding obligations of the Company;
(3) The Debt Securities, when duly authorized, executed,
authenticated and delivered against payment therefor, will be legally
issued and will constitute binding obligations of the Company in
accordance with their terms;
(4) The Warrants to Purchase Preferred Stock, when duly
authorized, executed, countersigned and delivered against payment
therefor, will be legally issued and will constitute binding
obligations of the Company in accordance with their terms;
(5) The shares of Preferred Stock when duly authorized, issued,
executed and paid for as contemplated in the Registration Statement or
upon receipt of the exercise price of the Preferred Stock Warrants,
will be validly issued, fully paid and nonassessable;
(6) The Depositary Shares when duly authorized by the Company
and, when the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary, and when the Depositary Shares have been
duly executed, issued and paid for in accordance with the terms and
provisions of the Deposit Agreement, the Depositary Shares will be
validly issued, fully paid and nonassessable;
(7) The Warrants to Purchase Common Stock, when duly authorized,
executed, countersigned and delivered against payment therefor will be
legally issued and will constitute binding obligations of the Company
in accordance with their terms; and
(8) The shares of Common Stock when duly authorized, issued,
executed and paid for as contemplated in the Registration Statement or
upon receipt of the exercise price of the Common Stock Warrants, will
be validly issued, fully paid and nonassessable.
<PAGE>
I am admitted to the practice of law only in the State of New
York and do not purport to be expert in the laws of any other
jurisdiction other than the law of the State of New York and United
States federal law.
I hereby consent to the filing of this opinion as an exhibit to
the Registration statement. I also consent to the use of my name under
the caption "Legal Opinions" in the Prospectus contained in the
Registration Statement.
Very truly yours,
Richard S. Ward
Executive Vice President,
General Counsel and
Corporate Secretary
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To ITT Corporation:
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-3
of our report dated January 24, 1996 on the consolidated financial
statements of ITT Corporation included in ITT Corporation's Annual
Report on Form 10-K for the year ended December 31, 1995, and to all
references to our firm included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
New York, N.Y.
November 13, 1996
Exhibit 23(c)
CONSENT OF COUNSEL
To ITT Corporation:
I hereby consent to the inclusion in this registration statement
to the reference to me under "Legal Opinions" therein.
/s/ Roberto Rivera-Soto
Roberto Rivera-Soto
November 13, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-----
-----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
ITT CORPORATION
(Exact name of obligor as specified in its charter)
Nevada 36-0899825
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1330 Avenue of the Americas
New York, New York 10019-5490
(Address of principal executive offices) (Zip Code)
Senior Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, The First National Bank of Chicago, a
national banking association organized and existing under the
laws of the United States of America, has duly caused this
Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of
Chicago and State of Illinois, on the 7th day of November, 1996.
The First National Bank of Chicago,
Trustee
By /s/ Richard D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 7, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between ITT
Corporation and The First National Bank of Chicago, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939,
as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make
such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Richard D. Manella
Richard D. Manella
Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Call Date: 06/30/96
Bank of Chicago ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Page RC-1
Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding of the last
business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400 -
Thousands RCFD BIL MIL THOU ---------
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from
depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances
and currency and coin(1)............... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)............ 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities
(from Schedule RC-B, column A).......... 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D).......... 1773 1,448,974 2.b.
3. Federal funds sold and securities
purchased under agreements to
resell in domestic offices of
the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold...................... 0276 5,020,878 3.a.
b. Securities purchased under
agreements to resell.................... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C)............. RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan
and lease losses........................ RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer
risk reserve............................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve
(item 4.a minus 4.b and 4.c)............ 2125 18,745,928 4.d.
5. Assets held in trading accounts............ 3545 9,599,172 5.
6. Premises and fixed assets
(including capitalized leases)............. 2145 623,289 6.
7. Other real estate owned
(from Schedule RC-M)....................... 2150 8,927 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M)............. 2130 57,280 8.
9. Customers' liability to this
bank on acceptances outstanding............ 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)..... 2143 156,715 10.
11. Other assets (from Schedule RC-F).......... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)... 2170 49,335,206 12.
<FN>
- --------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
Legal Title of Bank: The First National Call Date: 06/30/96
Bank of Chicago ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza,
Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
----------
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
------------------ ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices
(sum of totals of columns A and C
from Schedule RC-E, part 1)........... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)............ RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing.................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II)......... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing............... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing.................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and
securities sold under agreements
to repurchase in domestic
offices of the bank and of its
Edge and Agreement subsidiaries,
and in IBFs:
a. Federal funds purchased............... RCFD 0278 1,318,968 14.a.
b. Securities sold under
agreements to repurchase.............. RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to
the U.S. Treasury..................... RCON 2840 104,546 15.a.
b. Trading Liabilities................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of
one year or less...................... RCFD 2332 4,437,636 16.a.
b. With original maturity of
more than one year.................... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and
obligations under capitalized
leases................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance
executed and outstanding................. RCFD 2920 632,259 18.
19. Subordinated notes and debentures........ RCFD 3200 1,275,000 19.
20. Other liabilities (from
Schedule RC-G)........................... RCFD 2930 892,947 20.
21. Total liabilities (sum of
items 13 through 20)..................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock
and related surplus...................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock
and related surplus...................... RCFD 3838 0 23.
24. Common stock............................. RCFD 3230 200,858 24.
25. Surplus (exclude all surplus
related to preferred stock).............. RCFD 3839 2,349,164 25.
26. a. Undivided profits and
capital reserves...................... RCFD 3632 584,878 26.a.
b. Net unrealized holding
gains (losses) on available-
for-sale securities................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency
translation adjustments.................. RCFD 3284 (748) 27.
28. Total equity capital (sum of
items 23 through 27)..................... RCFD 3210 3,130,201 28.
29. Total liabilities, limited-
life preferred stock, and equity
capital (sum of items 21, 22, and 28).... RCFD 3300 49,335,206 29.
Memorandum To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external Number
auditors as of any date during 1995 . . . . . . . . . . . . ....RCFD 6724 . N/A M.1.
</TABLE>
<PAGE>
1 = Independent audit of the bank 4 = Directors' examination of the bank
conducted in accordance performed by other external
with generally accepted auditing auditors (may be required by
standards by a certified state chartering authority)
public accounting firm which 5 = Review of the bank's financial
submits a report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company financial statements by external
conducted in accordance with auditors
generally accepted auditing 7 = Other audit procedures (excluding
standards by a certified public tax preparation work)
accounting firm which submits a 8 = No external audit work
report on the consolidated
holding company (but not on the
bank separately)
3 = Directors' examination of the
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
- --------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
ITT CORPORATION
(Exact name of obligor as specified in its charter)
Nevada 88-0340591
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1330 Avenue of the Americas
New York, New York 10019-5490
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, The First National Bank of Chicago, a
national banking association organized and existing under the
laws of the United States of America, has duly caused this
Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of
Chicago and State of Illinois, on the 7th day of November, 1996.
The First National Bank of Chicago,
Trustee
By /s/ Richard D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on Form
S-3 of SunAmerica Inc. filed with the Securities and Exchange Commission on
October 25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 6, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between ITT Corporation
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be furnished
by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Richard D. Manella
Richard D. Manella
Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Call Date: 06/30/96
Bank of Chicago ST-BK:17-1630 FFIEC 03
Address: One First National Plaza, Page RC-1
Ste 04601
City, State Zip: Chicago, IL 60670
FDIC Certificate No.:0/3/6/1/8
---------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400 -
Thousands RCFD BIL MIL THOU ---------
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from
depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances
and currency and coin(1).............. 0081 3,572,641 1.a.
b. Interest-bearing balances(2)....... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities
(from Schedule RC-B, column A)........ 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D)........ 1773 1,448,974 2.b.
3. Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the
bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold..................... 0276 5,020,878 3.a.
b. Securities purchased under
agreements to resell.................. 0277 918,688 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C)........... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and
lease losses.......................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk
reserve............................... RCFD 3128 0 4.c.
d. Loans and leases, net of
unearned income, allowance, and
reserve (item 4.a minus 4.b and
4.c).................................. 2125 18,745,928 4.d.
5. Assets held in trading accounts....... 3545 9,599,172 5.
6. Premises and fixed assets
(including capitalized leases)........ 2145 623,289 6.
7. Other real estate owned (from
Schedule RC-M)........................ 2150 8,927 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M)........ 2130 57,280 8.
9. Customers' liability to this bank
on acceptances outstanding............ 2155 632,259 9.
10. Intangible assets (from Schedule
RC-M)................................. 2143 156,715 10.
11. Other assets (from Schedule RC-F)..... 2160 1,592,088 11.
12. Total assets (sum of items 1
through 11)........................... 2170 49,335,206 12.
<FN>
- --------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
Legal Title of Bank: The First National Call Date: 06/30/96
Bank of Chicago ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Page RC-2
Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in C400 -
Thousands RCFD BIL MIL THOU ---------
------------------ ---- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of
of columns A and C from Schedule RC-E,
part 1).................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).............. RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing.................... RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E, part II).......................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing................. RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing.................... RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and
in IBFs:
a. Federal funds purchased................. RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to
repurrchase............................. RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S.
Treasury................................ RCON 2840 104,546 15.a.
b. Trading Liabilities..................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year
or less................................. RCFD 2332 4,437,636 16.a.
b. With original maturity of more than
one year................................ RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations
under capitalized leases................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed
and outstanding............................ RCFD 2920 632,259 18.
19. Subordinated notes and debentures.......... RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)..... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13
through 20)................................ RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related
surplus.................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related
surplus.................................... RCFD 3838 0 23.
24. Common stock............................... RCFD 3230 00,858 24.
25. Surplus (exclude all surplus related to
preferred stock)........................... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves.. RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses)
on available-for-sale securities........ RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation
adjustments................................ RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23
through 27)................................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of items 21,
22, and 28)................................ RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external Number
auditors as of any date during 1995 .............................RCFD 6724 . N/A M.1.
</TABLE>
<PAGE>
1 = Independent audit of the bank 4. = Directors' examination of the bank r
conducted in accordance performed by othe external auditors
with generally accepted auditing (may be required by state chartering
standards by a certified authority)
public accounting firm which 5 = Review of the bank's financial
submits a report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's financial
parent holding company statements by external auditors
conducted in accordance with 7 = Other audit procedures (excluding
generally accepted auditing tax preparation work)
standards by a certified public 8 = No external audit work
accounting firm which submits a
report on the consolidated holding
company (but not on the bank
separately)
3 = Directors' examination of the bank
conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
- --------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
