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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) August 9, 1994
HILTON HOTELS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-3427 36-2058176
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
9336 CIVIC CENTER DRIVE, BEVERLY HILLS, CALIFORNIA 90210
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (310) 278-4321
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ITEM 5. OTHER EVENTS.
On August 9, 1994, Hilton Hotels Corporation, a Delaware corporation,
commenced a program offering from time to time up to $200,000,000 aggregate
principal amount of its Medium Term Notes, Series B.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
<TABLE>
<S> <C>
Exhibit 1 -- Execution copy of Distribution Agreement among Hilton Hotels Corporation; Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated; Lehman Brothers, Lehman
Brothers Inc.; and Smith Barney Inc.
Exhibit 4(a) -- Specimen of Fixed Rate Note.
Exhibit 4(b) -- Specimen of Floating Rate Note.
Exhibit 10 -- Execution copy of Agreement of Resignation, Appointment and Acceptance.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HILTON HOTELS CORPORATION
(Registrant)
Date: August 9, 1994 /s/ STEVE KRITHIS
--------------------------------
Steve Krithis
Vice President and
Corporate Comptroller
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EXHIBIT 1
EXECUTION COPY
HILTON HOTELS CORPORATION
Medium-Term Notes, Series B
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
August 9, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
LEHMAN BROTHERS
Lehman Brothers Inc.
3 World Financial Center
American Express Tower
New York, New York 10285-1200
SMITH BARNEY INC.
1345 Avenue of the Americas
New York, New York 10105
Dear Sirs:
Hilton Hotels Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Lehman Brothers, Lehman Brothers Inc. (including its
affiliate, Lehman Government Securities Inc.), and Smith Barney Inc. (each, an
"Agent" and collectively, the "Agents") with respect to the issue and sale by
the Company of its Medium-Term Notes, Series B described herein (the "Notes").
The Notes are to be issued pursuant to an indenture dated as of July 1, 1988,
as amended by the First Supplemental Indenture dated as of June 30, 1992, and
the Agreement of Resignation, Appointment and Acceptance, dated as of April 15,
1994 (collectively, the "Indenture", which term as used herein includes any
instrument approved by the Company establishing the form and terms of the
Notes), among the Company, The Bank of New York Trust Company of California, as
trustee (the "Trustee"), Morgan Guaranty Trust Company of New York, and The
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Bank of New York, as Security Registrar, Authenticating Agent and Paying Agent.
As of the date hereof, the Company has authorized the issuance and sale of up
to U.S. $200,000,000 aggregate principal amount (or its equivalent, based upon
the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that, at the option of the Company, such
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more of the Agents as principal for resale to investors and other
purchasers and for the sale of Notes by the Company directly to investors (as
may from time to time be agreed to by the Company and the related Agent or
Agents), in which case the Agents will act as agents of the Company in
soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-35951) for the
registration of senior debt securities, including the Notes, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the Commission and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of registering
additional Notes and in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus constituting a part
thereof, and any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes, whether or not
such revised prospectus is required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the Agents
for such use.
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SECTION 1. Appointment as Agents.
(a) Appointment. Subject to the terms and conditions stated herein
and to the reservation by the Company to sell Notes directly on its own behalf
or to appoint other agents to act on its behalf or to assist the Company in the
placement of the Notes (provided the Agents are promptly notified of any such
appointment and that any such additional agent shall execute an agreement with
the Company which contains substantially the same terms and conditions
contained herein, including, but not limited to, the commission fee schedule
set forth at Schedule A hereto), the Company hereby agrees that Notes will be
sold exclusively to or through the Agents. Each Agent is authorized to engage
the services of any other broker or dealer in connection with the offer or sale
of the Notes purchased by such Agent as principal for resale to others but is
not authorized to appoint sub-agents. In connection with sales by the Agents
of Notes purchased by any Agent as principal to other brokers or dealers, such
Agent may allow any portion of the discount it has received in connection with
such purchase from the Company to such brokers or dealers.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal
amount of Notes registered pursuant to the Registration Statement. The Agents
will have no responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. No Agent shall have any obligation to
purchase Notes from the Company as principal, but an Agent may agree from time
to time to purchase Notes as principal. Any such purchase of Notes by an Agent
as principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agents. If agreed upon by any Agent and the
Company, such Agent, acting solely as agent for the Company and not as
principal, will solicit purchases of the Notes. Each Agent will communicate to
the Company, orally, each reasonable offer to purchase Notes solicited by such
Agent on an agency basis, other than those offers rejected by such Agent. Each
Agent shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any such rejection
shall not be deemed a breach of such Agent's agreement contained herein. The
Company may accept or reject offers to purchase the Notes in whole or in part.
Each Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company. No Agent shall have any liability
to the Company in the event any such purchase is not consummated for any
reason.
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If the Company shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Company shall (i) hold the Agents harmless
against any loss, claim or damage arising from or as a result of such default
by the Company and (ii) notwithstanding such default, pay to each Agent any
commission to which it would be entitled in connection with such sale.
(e) Reliance. The Company and the Agents agree that any Notes
purchased by the Agents shall be purchased, and any Notes the placement of
which the Agents arrange shall be placed by the Agents, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to an Agent as principal or through an Agent as
agent), as of the date of each delivery of Notes by the Company to the
purchasers (whether to an Agent as principal or through an Agent as agent) (the
date of each such delivery to an Agent as principal being hereafter referred to
as a "Settlement Date"), and as of any date that the Registration Statement or
the Prospectus shall be amended or supplemented by a filing with the Commission
or there is filed with the Commission any document incorporated by reference
into the Prospectus (each of the times referenced above being referred to
herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. Each of
the Company and each of Hilton Gaming Corporation and Hilton
Inns, Inc. (individually, a "Subsidiary" and collectively, the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its respective jurisdiction of incorporation, with power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, and
all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, except for directors'
qualifying shares, is owned
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by the Company either directly or through wholly-owned
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(ii) Registration Statement and Prospectus. At the
time the Registration Statement became effective, the
Registration Statement complied, and as of the applicable
Representation Date will comply, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the
Commission promulgated thereunder (the "1939 Act
Regulations"). The Registration Statement, at the time it
became effective, did not, and at each time thereafter at
which any amendment to the Registration Statement or any
Annual Report on Form 10-K is filed by the Company with the
Commission and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, as of the date hereof does not, and as of each
Representation Date will not, contain an 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 representations and warranties in
this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the
Company in writing by or on behalf of any Agent expressly for
use in the Registration Statement or Prospectus or to that
part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification of the Trustee
under the 1939 Act filed as an exhibit to the Registration
Statement (the "Form T-1").
(iii) Incorporated Documents. The documents
incorporated by reference into the Prospectus, at the time
they were or hereafter are filed with the Commission, complied
or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and
the rules and regulations promulgated thereunder (the "1934
Act Regulations"), and, when read together with the other
information in the Prospectus, did not and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were or are made, not
misleading.
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(iv) Accountants. Arthur Andersen & Co., whose
report appears in the Company's most recent Annual Report on
Form 10-K which is incorporated by reference in the
Registration Statement and Prospectus, are independent public
accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations.
(v) Financial Statements. The financial statements
and any supporting schedules of the Company and its
consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates
indicated and the consolidated results of their operations for
the periods specified, subject to normally recurring changes
to the unaudited financial statements, if any, included or
incorporated therein, resulting from year-end audit
adjustments; and, except as stated therein, said financial
statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
(except as may be indicated in the notes thereto); and the
supporting schedules included in the Registration Statement
present fairly the information required to be stated therein.
(vi) Authorization and Validity of this Agreement,
the Indenture and the Notes. This Agreement has been duly
authorized, executed and delivered by the Company; the
Indenture has been duly authorized, executed and delivered by
the Company and constitutes the valid and legally binding
obligation of the Company enforceable in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equitable principles); the Indenture
has been qualified under the 1939 Act; the Notes have been
duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor as
provided in this Agreement, the Notes will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by
general equitable principles); the Notes and the Indenture
will be substantially in
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the form heretofore delivered to the Agents and conform in all
material respects to all statements relating thereto contained
in the Prospectus; and each holder of Notes will be entitled
to the benefits of the Indenture.
(vii) Material Changes or Material Transactions.
Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby (a) there
has been no material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business and (b) there have been no
material transactions entered into by the Company or either of
its Subsidiaries, other than those in the ordinary course of
business.
(viii) No Defaults. Neither the Company nor either
of its Subsidiaries is in violation of its corporate charter
or bylaws nor in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it or any of them or their properties may be
bound, which violation or default is or would be material to
the condition, financial or otherwise, the earnings, business
affairs or business prospects, or properties of the Company
and its subsidiaries considered as one enterprise; the
execution, delivery and performance of this Agreement and the
Indenture and the consummation of the transactions
contemplated herein and therein have been duly authorized by
all necessary corporate action and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or either of its
Subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or either of its Subsidiaries is a party or by which
it or either of them may be bound or to which any of the
property or assets of the Company or either such Subsidiary is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or either
Subsidiary or any applicable law, administrative regulation or
administrative or court order or decree.
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(ix) No Authorization, Approval or Consent Required.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is legally required for
the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or in connection
with the sale of Notes hereunder, except such as may be
required under applicable state securities' ("Blue Sky") laws
or as have been obtained or rendered, as the case may be.
(x) Legal Proceedings; Contracts. Except as may be
set forth in the Registration Statement, there is no material
action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or
affecting, the Company or either of its Subsidiaries, that
might result in any material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this
Agreement or the Indenture or any transaction contemplated
hereby or thereby; and there are no contracts or documents
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations, or
that were required to be filed by the 1934 Act or the 1934 Act
Regulations as exhibits to any document incorporated by
reference in the Prospectus, which have not been filed as
exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the 1933 Act
Regulations or the 1934 Act Regulations, as the case may be.
(xi) Licenses and Permits. Each of the Company and
its Subsidiaries possess all such certificates, authorities,
licenses or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, and neither the Company nor
its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authority, license or permit which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
business of the Company and its consolidated subsidiaries
considered as one enterprise.
(xii) Cuba Disclosure. The Company has complied
with, and is and will be in compliance with, the provisions of
that certain Florida act relating to
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disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act"), or is exempt
therefrom.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to any Agent or to counsel for
the Agents in connection with an offering of Notes through one or more Agents
as agent or the sale of Notes to one or more Agents as principal shall be
deemed a representation and warranty by the Company to the Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agents.
(a) Purchases as Principal. Unless otherwise agreed by the related
Agent or Agents and the Company, Notes shall be purchased by the Agents as
principal. Such purchases shall be made in accordance with terms agreed upon
by the related Agent or Agents and the Company (which terms shall be agreed
upon orally, with written confirmation prepared by the related Agent or Agents
and mailed to the Company). An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto.
The Agents may engage the services of any other broker or dealer in connection
with the resale of the Notes purchased as principal and may allow any portion
of the discount received in connection with such purchases from the Company to
such brokers and dealers. At the time of each purchase of Notes by an Agent as
principal, such Agent shall specify the requirements for the stand-off
agreement, officers' certificate, opinion of counsel and comfort letter
pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(b) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and the related Agent or Agents, such Agent
or Agents, as an agent or agents of the Company, will use reasonable efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus. All Notes sold through an Agent as agent will be
sold at 100% of their principal amount unless otherwise agreed to by the
Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company,
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the Agents will forthwith suspend solicitation of offers to purchase from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as
set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified
in Exhibit A hereto shall be agreed upon by the Company and one or more Agents
and set forth in a pricing supplement to the Prospectus to be prepared in
connection with each sale of Notes. Except as may be otherwise provided in
such supplement to the Prospectus, the Notes will be issued in denominations of
U.S. $1,000 or any larger amount that is an integral multiple of U.S. $1,000.
Administrative procedures with respect to the sale of Notes shall be agreed
upon from time to time by the Company and the Agents (the "Procedures"). The
initial Procedures, which are set forth in Exhibit B hereto, shall remain in
effect until changed by agreement among the Company and the Agents. The Agents
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
(d) Delivery of Closing Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices of Brown &
Wood, 10900 Wilshire Boulevard, Los Angeles, California 90024 on the date
hereof, or at such other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose, and (vi) of the issuance by
any state securities commission or other regulatory authority of any order
suspending the qualification or the exemption from qualification of the Notes
under state
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securities or Blue Sky laws or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof as soon as practicable.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes,
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus (other than an amendment or supplement providing solely for a
change in the interest rates of Notes), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the
Agents with copies of any such amendment or supplement or other documents
proposed to be filed or prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be, and will not file any such amendment
or supplement or other documents in a form to which the Agent or counsel for
the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents may reasonably
request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as any Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of the Company or the reasonable opinion of
counsel for the Agents or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of the Company or the
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reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice
shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in the Agents' capacity as agents
and to cease sales of any Notes an Agent may then own as principal, and the
Company will promptly amend or supplement the Registration Statement and the
Prospectus, whether by filing documents pursuant to the 1934 Act, the 1933 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except
as otherwise provided in subsection (l) of this Section, on or prior to the
date on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall prior to the
delivery of the Prospectus to any purchaser of the Notes purchasing after the
date on which such financial information is released to the general public, by
the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise
cause the Prospectus to be amended or supplemented to include or incorporate by
reference financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for compliance,
in all material respects, with the requirements of the 1933 Act or the 1933 Act
Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (l) of this Section, on the date on which
there shall be released to the general public financial information included in
or derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall, prior to the delivery of the
Prospectus to any purchaser of the Notes purchasing after the date on which
such financial information is released to the general public, cause the
Registration Statement and the Prospectus to be amended, whether by the filing
of documents pursuant to the 1934 Act, the 1933 Act or otherwise, to include or
incorporate by reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for compliance, in all
material respects, with the requirements of the 1933 Act or the 1933 Act
Regulations.
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(h) Earnings Statements. The Company will make generally available
to its security holders and to the Agents in each case as soon as practicable
but in any event not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the 1933 Act) covering each twelve month period beginning after the
date of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the purchase by such Agent of Notes hereunder.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file timely all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations and
to the extent such documents are incorporated by reference in the Prospectus,
when read together with the other information in or incorporated by reference
into the Prospectus, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(k) Stand-Off Agreement. If specified by an Agent in connection with
a purchase by such Agent of Notes as principal, between the date of the
agreement to purchase such Notes and the Settlement Date with respect to such
purchase, the Company will not, without such Agent's prior written consent,
directly or indirectly, offer or sell, or enter into any agreement to sell, any
debt securities of the Company (other than the Notes) which mature more than
nine months from their settlement date or are otherwise substantially similar
to the Notes.
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e),
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(f) or (g) of this Section during any period from the time (i) the Agents shall
have been notified to suspend solicitation of purchases of the Notes in their
capacity as agents pursuant to a request from the Company and (ii) the Agents
shall not then hold any Notes purchased as principal pursuant hereto, until the
time the Company shall determine that solicitation of purchases of the Notes
should be resumed or any Agent shall subsequently purchase Notes from the
Company as principal.
(m) Use of Proceeds. The Company will use the net proceeds received
by it from the sale from time to time of Notes in the manner specified in the
Prospectus under "Use of Proceeds."
(n) Nevada Gaming Commission. The Company and the Agents
acknowledge that sales of Notes hereunder require the approval of the Nevada
Gaming Commission as reflected in an Order. The Company will notify the Agents
promptly upon becoming aware that such Order may become ineffective. Upon five
Business Day's prior written notice from the Company to the Agents stating that
such an Order will not be effective for a period of time (which notice shall
reference this Section of this Agreement), the Agents shall immediately cease
the solicitation of offers to purchase Notes as agent or as principal. The
Agents shall not resume such solicitations until they receive an officer's
certificate from the Company certifying that an Order has been entered by the
Nevada Gaming Commission and that as a result of such Order, the representation
and warranty of the Company contained in Section 2(ix) hereof is true and
correct as of the date of such officer's certificate.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agents of the Company, and the
obligations of any purchasers of the Notes sold through the Agents as agents,
will be subject to the accuracy, as of the applicable Representation Date, of
the representations and warranties on the part of the Company herein and to the
accuracy in all material respects, as of the date made, of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance, in all material respects,
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and scope satisfactory to the Agents and counsel for the Agents:
(1) Opinion of General Counsel of the Company. The opinion
of the General Counsel of the Company, to the effect that:
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<PAGE> 15
(i) each of the Company and the Subsidiaries has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is organized, with full corporate
power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction that requires
such qualification wherein it owns or leases properties or
conducts business, except where the failure to so register or
qualify would not have a material adverse effect on the
business, properties, assets or condition (financial or
otherwise) of the Company and its consolidated subsidiaries
taken as a whole;
(ii) all the outstanding shares of capital stock
of each "significant subsidiary" (as defined in Regulation
S-X promulgated by the Commission) have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of such significant
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 Indenture and the Notes conform in all
material respects to the description thereof contained in
the Prospectus;
(iv) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the 1939 Act, and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); and the Notes are in the form
contemplated by the Indenture, have been duly authorized by
the Company, and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Agents pursuant to this Agreement, the
Notes will constitute legal, valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect
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<PAGE> 16
and to general principles of equity), entitled to the
benefits of the Indenture;
(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 the Subsidiaries, of a
character required to be disclosed in the Registration
Statement that is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, that
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing the
terms of the Notes and the provisions of the Indenture and
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) neither the Company nor either of the
Subsidiaries is in violation of any term or provision of
(A) any charter or bylaw, (B) to the best knowledge of such
counsel, any franchise, license, permit, judgment, decree or
order, or (C) any applicable statute, rule or regulation,
which violation in any case referred to in clause (A), (B),
or (C) above, is material to the financial condition,
earnings, prospects, business or properties of the Company
and its consolidated subsidiaries taken as a whole;
(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 by the Company, except such as have been obtained
under the 1933 Act, the 1939 Act and except such as may be
required under the blue sky laws and any applicable gaming
laws (and any applicable real estate syndication laws) of
any jurisdiction in connection with the offer, issuance and
sale of the Notes and such other approvals (specified in such
opinion) as have been obtained;
(ix) to the best knowledge of such counsel, no
default exists and no event has occurred that with notice,
lapse of time, or both, would constitute a default in the due
performance and observance of any term, covenant or condition
of any agreement to which the Company or the Subsidiaries
are a party or by which any of them is bound, which default
is or would be
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<PAGE> 17
material to the financial condition, earnings, prospects,
business or properties of the Company and its consolidated
subsidiaries taken as a whole;
(x) neither the issue and sale of the Notes, the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the charter or bylaws of the Company or the terms of
any indenture or other agreement or instrument known to such
counsel and to which the Company or the Subsidiaries are a
party or bound, or any order or regulation known to such
counsel to be applicable to the Company or the Subsidiaries
of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or the Subsidiary; and
(xi) 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 and the General Corporation Law of the State of
Delaware or the federal law of 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
reasonably satisfactory to counsel for the Agents and upon whose
opinion the Agents may also rely; (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials.
(2) Opinion of Counsel for the Company. The opinion of Neal
Gerber & Eisenberg, counsel for the Company, to the effect that:
(i) the Registration Statement and any amendments
thereto have become effective under the 1933 Act; to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto as
of their respective effective or issue dates (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) complied as to form in all material
respects with the applicable
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<PAGE> 18
requirements of the 1933 Act and the 1934 Act and the
respective rules thereunder;
(ii) each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus (other than
the financial statements, schedules and other financial and
statistical data included or incorporated by reference therein
and the Form T-1 filed with the Commission with respect
thereto, as to which such counsel need express no opinion)
complied when filed as to form in all material respects with
the 1934 Act and the 1934 Act Regulations; and
(iii) the information contained in the Prospectus
Supplement under the caption "Certain United States Federal
Income Tax Considerations", to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such
counsel and fairly describes such legal matters.
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 Illinois and the General Corporation Law of the State of
Delaware or the federal law of 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
reasonably satisfactory to counsel for the Agents and upon whose
opinion the Agents may also rely; (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials.
(3) Opinion of Nevada Counsel. The opinion of Lionel Sawyer
& Collins, special Nevada counsel to the Company, to the effect that
no consent, approval, authorization or order of any Nevada court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
and except such as may be required under Nevada State securities laws,
and such other opinions in respect of the Company's operations and
subsidiaries in the State of Nevada as may be reasonably be requested
by the Agents, in form and scope reasonably satisfactory to the Agents
and counsel to the Agents.
(4) Opinion of Counsel for the Agents. The opinion of Brown
& Wood, counsel for the Agents, covering certain matters with respect
to the Registration Statement and the Notes.
(5) In giving their opinions required by subsections (a)(2)
and (a)(4), respectively, of this Section, Neal
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<PAGE> 19
Gerber & Eisenberg and Brown & Wood shall each additionally state that
nothing has come to such counsel's attention that lead them to believe
that either (A) the Registration Statement (including the documents
incorporated by reference therein) at the time such Registration
Statement became effective (which, for the purposes of this paragraph,
shall have the meaning set forth in Rule 158(c) of the 1933 Act
Regulations), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) the
Prospectus (including the documents incorporated by reference therein)
as of the date of this Agreement (or, if the opinion is being given
pursuant to Section 7(c) hereof as a result of the purchase of Notes
by one or more Agents as principal, at the date of agreement by such
Agents to purchase Notes as principal and at the Settlement Date with
respect to such purchase) contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need not express a
view with respect to (i) the financial statements, schedules and other
financial and statistical data included or incorporated by reference
in the Registration Statement or the Prospectus or (ii) with respect
to the Registration Statement, the Form T-1.
(b) Officers' Certificate. At the date hereof, the Agents shall have
received a certificate of the President or Vice President and the chief
financial officer or chief accounting officer of the Company, dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any agreement by an Agent to purchase Notes as principal, there has
not been any material adverse change in the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements
and satisfied all conditions required by this Agreement on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to the best
of such officers' knowledge, threatened by the Commission.
(c) Comfort Letter. On the date hereof, the Agents shall have
received a letter from Arthur Andersen & Co. dated as of the
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<PAGE> 20
date hereof and in form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements and supporting schedule(s) of the Company and its
subsidiaries examined by them and included or incorporated by
reference in the Registration Statement comply as to form in
all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Company and
its indicated subsidiaries, a reading of the minute books of
the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has
been issued, inquiries of and discussions with certain
officials of the Company and such subsidiaries responsible
for financial and accounting matters with respect to the
unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and
Prospectus and the latest available interim unaudited
financial statements of the Company and its subsidiaries,
and such other inquiries and procedures as may be specified
in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them
to believe that: (A) the unaudited consolidated financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or were not fairly presented in
conformity with generally accepted accounting principles in
the United States applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated by reference therein, or (B) at a specified date
not more than five days prior to the date of such letter,
there was any change in the consolidated capital stock or any
increase in consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net current
assets or net assets of the Company and its subsidiaries, in
each case as compared with the amounts shown on the most
recent consolidated
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<PAGE> 21
balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus or, during the period from the date of such balance
sheet to a specified date not more than five days prior to the
date of such letter, there were any decreases, as compared
with the corresponding period in the preceding year, in
consolidated net revenues or the total or per-share amounts of
net income of the Company and its subsidiaries, except in each
such case as set forth in or contemplated by the Registration
Statement and Prospectus or except for such exceptions
enumerated in such letter as shall have been agreed to by the
Agents and the Company.
(iv) In addition to the examination referred to in
their report included or incorporated by reference in the
Registration Statement and the Prospectus, and the limited
procedures referred to in clause (iii) above, they have
carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agents, and have
found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified
in such letter.
(d) Other Documents. On the date hereof, counsel for the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or
in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent party thereto, any applicable agreement by such Agent to
purchase Notes as principal) may be terminated by any of the Agents (as to
itself only) by notice to the Company at any time and any such termination
shall be without liability of any party to any other party, except that the
covenant regarding provision of an earnings statement set forth in Section 4(h)
hereof, the provisions concerning payment of expenses under Section 10 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
the provisions concerning the representations, warranties and agreements to
survive delivery set forth in Section 11 hereof, the provisions relating to
governing law set
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forth in Section 15 and the provisions set forth under "Parties" of Section 16
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold
through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company
and deliver the Note to the Company, and, if such Agent has theretofore paid
the Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by the
applicable Agent in the performance of its obligations hereunder, the Company
will reimburse such Agent on an equitable basis for its loss of the use of the
funds for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance
by it of an offer for the purchase of Notes (whether to any Agent as principal
or through any Agent as agent), and each delivery of Notes to one or more of
the Agents (whether to any Agent as principal or through any Agent as agent),
shall be deemed to be an affirmation that the representations and warranties of
the Company contained in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or its agent, or to the Agent or Agents, of the Note or Notes
relating to such acceptance or sale, as the case may be, as though made at and
as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of Notes or similar changes, and, unless the Agents shall
otherwise specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes), (ii) there
is filed with the Commission any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K, unless the Agents shall
otherwise
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<PAGE> 23
specify), (iii) (if required in connection with the purchase of Notes by any
Agent as principal) the Company sells Notes to one or more Agents as principal
or (iv) if the Company issues and sells Notes in a form not previously
certified to the Agents by the Company, the Company shall furnish or cause to
be furnished to the Agents as soon as possible a certificate dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to the Agents and to counsel for the Agents to the effect
that the statements contained in the certificate referred to in Section 5(b)
hereof which was last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of the Notes or similar changes or solely for the inclusion of
additional financial information, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes), (ii) there is filed with
the Commission any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K, unless the Agent shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by the
Agents as principal) the Company sells Notes to the Agents as principal or (iv)
if the Company issues and sells Notes in a form not previously certified to the
Agents by the Company, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents written opinions of
counsel to the Company satisfactory to the Agents, which counsel may include an
employee of the Company, dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and scope satisfactory to the
Agents, of the same tenor as the opinions referred to in Sections
5(a)(1),(2),(3) and (5) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinions; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents with letters to
the effect that the Agents may rely on such last opinions to the same extent as
though they were dated the date of such letters authorizing reliance (except
that statements in such last
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<PAGE> 24
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letters
authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information, or (ii) (if required in connection with the
purchase of Notes by any Agent as principal) the Company sells Notes to one or
more Agents as principal, the Company shall cause Arthur Andersen & Co. to
furnish the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document with the Commission, or the date of such sale, as the
case may be, in form satisfactory to the Agents, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of Section 5(c)
hereof but modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii) and (iv) of
said Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls any Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue
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statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all reasonable expenses
whatsoever (including the reasonable fees and disbursements of
counsel chosen by each Agent, subject to Section 8(c) below),
as incurred, reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above.
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 8, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt written notice
to each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (whether outside counsel or in-house counsel)
(in addition to any local counsel) for all indemnified parties in connection
with any one action or separate but similar or related
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actions in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless
the indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from
the sale of Notes sold to or through such Agent to the date of such liability,
and the Company is responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Agent within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Agent, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent or
Exchange Rate Agent;
(e) The reasonable fees and disbursements of Brown & Wood incurred in
connection with the establishment of the program
26
<PAGE> 27
relating to the Notes and incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of Brown & Wood as counsel for the
Agents in connection therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the
Notes;
(h) Any fees charged by rating agencies for the rating of the Notes;
(i) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(j) Any advertising and other reasonable out-of-pocket expenses of
the Agents incurred with the approval of the Company;
(k) The cost of providing any CUSIP or other identification numbers
for the Notes; and
(l) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements
to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Agent or any
controlling person thereof, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement hereunder by any Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or the Agents upon
the giving of 30 days' written notice of such termination to the other party
hereto;
27
<PAGE> 28
provided, however, that the termination of this Agreement by an Agent shall
terminate this Agreement only between such Agent and the Company and the
Company's notice of termination as to any one Agent shall terminate this
Agreement only between itself and such Agent.
(b) Termination of Agreement to Purchase Notes as Principal. An
Agent may terminate any agreement hereunder by such Agent to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as to make it, in
the judgment of such Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if trading in any securities of
the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have been
declared by either Federal, New York or California authorities or if a banking
moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
are denominated or payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as of
the date of any applicable principal purchase shall have been lowered since
that date or if any such rating agency shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company, or (v) if there shall have come
to the attention of the Agent or Agents party to such agreement any facts that
would cause such Agent or Agents, as the case may be, to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
Notes, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, no party will
have any liability to any other party hereto, except that (i) each Agent shall
be entitled to any commission earned in
28
<PAGE> 29
accordance with the third paragraph of Section 3(b) hereof, (ii) if at the time
of termination (a) any Agent shall own any Notes purchased by such Agent as
principal with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 (subject to the provision of subsection
4(l)) and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 4(h)
hereof, the provisions of Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, and the provisions of Sections
11, 15 and 16 hereof shall remain in effect.
SECTION 13. Default by an Agent Purchasing Notes as Principal.
If any Agent or Agents purchasing Notes as principal hereunder shall
fail to purchase and pay for any of the Notes agreed in such transaction to be
purchased by such Agent or Agents, and such failure to purchase shall
constitute a default in the performance of its or their obligations to purchase
such Notes in such transaction, and
(i) if the aggregate principal amount of Notes
which the defaulting Agent or Agents agreed but failed to
purchase as principal does not exceed 10% of the aggregate
principal amount of Notes agreed to be purchased in such
transaction by all Agents, then the Company shall have the
right to require each nondefaulting Agent to purchase at the
applicable Settlement Date the aggregate principal amount of
Notes which such Agent agreed to purchase as principal in such
transaction, and, in addition, to require each nondefaulting
Agent to purchase its pro rata proportion of the Notes (based
on the aggregate principal amount of Notes such nondefaulting
Agent agreed to purchase as principal in such transaction)
originally agreed to be purchased by such defaulting Agent or
Agents; but nothing herein shall relieve a defaulting Agent of
its liability, if any, to the Company and any nondefaulting
Agent for its default hereunder; or
(ii) if the aggregate principal amount of Notes
which the defaulting Agent or Agents agreed but failed to
purchase as principal exceeds 10% of the aggregate principal
amount of Notes agreed to be purchased in such transaction by
all Agents, or if the Company shall not exercise the right
described in subsection (i) above to require nondefaulting
Agents to purchase Notes of a defaulting Agent or Agents, the
nondefaulting Agent or Agents shall have the right to purchase
all, but shall not be under any obligation to purchase any,
29
<PAGE> 30
of the Notes agreed by the Agents to be purchased as principal
in such transaction, and if such nondefaulting Agent or Agents
do not purchase all such Notes, the applicable agreement to
purchase such Notes as principal shall terminate without
liability to any nondefaulting Agent or the Company, except
for the indemnity and contribution agreements in Sections 8
and 9 hereof and the expense provisions provided in Section 10
hereof; but nothing herein shall relieve a defaulting Agent of
its liability, if any, to the Company and any nondefaulting
Agent for its default hereunder.
In the event of a default by any Agent as set forth in this Section,
the Settlement Date with respect to such purchase of Notes as principal shall
be postponed for such period, not exceeding seven days, as the lead
nondefaulting Agent or, if no Agent is the lead nondefaulting Agent, the
nondefaulting Agent or Agents, shall determine in order that the required
changes in the Registration Statement and the Prospectus or Pricing Supplement
or in any other document or arrangements may be effected.
SECTION 14. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, California 90210
Attention: Treasurer
With copies to:
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, California 90210
Attention: General Counsel
Neal Gerber & Eisenberg
2 North LaSalle Street
Suite 2200
Chicago, Illinois 60602
Attention: Charles E. Gerber, Esq.
30
<PAGE> 31
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to Lehman Brothers:
Lehman Brothers
Lehman Brothers, Inc.
3 World Financial Center
American Express Tower
New York, New York 10285-1200
Attention: Roger Blissett
Fax: (212) 619-7165
If to Smith Barney Inc.:
Smith Barney Inc.
1345 Avenue of the Americas
New York, New York 10105
Attention: William McDonald
Fax: (212) 903-8996
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 14.
SECTION 15. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Company against the Agent in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
SECTION 16. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to
in Sections 8 and 9 and their heirs and legal representatives, any
31
<PAGE> 32
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall
be deemed to be a successor by reason merely of such purchase.
32
<PAGE> 33
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
HILTON HOTELS CORPORATION
By: /s/ Steve Krithis
------------------------------
Name: Steve Krithis
Title: Vice President and
Corporate Comptroller
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Mathew Pendo
---------------------------------
Name: Mathew Pendo
Title: Director
LEHMAN BROTHERS INC.
By: /s/ Bart McDade
---------------------------------
Name: Bart McDade
Title: Managing Director
SMITH BARNEY INC.
By: /s/ William G. McDonald
---------------------------------
Name: William G. McDonald
Title: Managing Director
33
<PAGE> 34
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents
and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
Other Terms:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
<PAGE> 35
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the related Agent, on a discount basis, a commission for the sale of
each Note by such Agent equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- - --------------- ----------------
<S> <C>
From 9 months to less than 1 year . . . .125%
From 1 year to less than 18 months . . .150%
From 18 months to less than 2 years . . .200%
From 2 years to less than 3 years . . . .250%
From 3 years to less than 4 years . . . .350%
From 4 years to less than 5 years . . . .450%
From 5 years to less than 6 years . . . .500%
From 6 years to less than 7 years . . . .550%
From 7 years to less than 10 years . . .600%
From 10 years to less than 15 years . . .625%
From 15 years to less than 20 years . . .700%
From 20 years to 30 years . . . . . . . .750%
More than 30 years . . . . . . . . . . As agreed to by the Company and the applicable
Agent at the related time of sale.
</TABLE>
<PAGE> 1
EXHIBIT 4(a)
FIXED RATE GLOBAL MEDIUM-TERM NOTE, SERIES B
Unless and until this certificate is exchanged in whole or in part for
Notes in definitive registered form, this Note may not be transferred except as
a whole by The Depository Trust Company, a New York corporation ("DTC"), to its
nominee or by its nominee to DTC or another nominee of DTC or by DTC or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Any certificate issued in exchange herefor shall be registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment in respect hereof shall be made to Cede
& Co. or to such other entity as is requested by an authorized representative
of DTC).
<TABLE>
<S> <C> <C>
REGISTERED PRINCIPAL AMOUNT
No. FX- CUSIP NO. __________ $_______________
</TABLE>
HILTON HOTELS CORPORATION
MEDIUM-TERM NOTE, SERIES B
(FIXED RATE)
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
</TABLE>
<TABLE>
<S> <C>
DAY COUNT CONVENTION:
[ ] 30/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/360 FOR THE PERIOD FROM TO
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C>
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
CURRENCY:
Specified Currency:
(if other than U.S. dollars,
see attached addendum)
Minimum Denominations:
(Applicable only if Specified
Currency is other than
U.S. dollars)
OTHER PROVISIONS:
</TABLE>
2
<PAGE> 3
HILTON HOTELS CORPORATION, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above on the Stated
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Stated Maturity Date), and to pay interest thereon at the Interest Rate per
annum specified above, until, but excluding, the date on which such Principal
Amount is paid or duly made available for payment. Reference herein to "this
Note," "hereof," "herein" and comparable terms shall include an Addendum hereto
if an Addendum is specified above.
The Company will pay interest on each Interest Payment Date specified
above, in arrears, commencing on the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Stated Maturity
Date or any Redemption Date or Optional Repayment Date (the date of each such
Stated Maturity Date, Redemption Date and Optional Repayment Date and the date
on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a Regular Record
Date (as defined below) and the next succeeding Interest Payment Date, or on an
Interest Payment Date, interest payments will commence on the Interest Payment
Date immediately following the next succeeding Regular Record Date to the
registered Holder on such next succeeding Regular Record Date. Except as
provided above, interest payments will be made on the Interest Payment Dates
shown above. Unless otherwise specified above, the "Regular Record Date" shall
be the date 15 calendar days (whether or not a Business Day) immediately
preceding the applicable Interest Payment Date. Interest on this Note will
accrue from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been paid,
from the Original Issue Date specified above, to, but excluding such Interest
Payment Date or Maturity, as the case may be. If the Maturity or an Interest
Payment Date falls on a day which is not a Business Day as defined below, the
payment due on such Maturity or Interest Payment Date will be paid on the next
succeeding Business Day with the same force and effect as if made on such
Maturity or Interest Payment Date, as the case may be, and no interest shall
accrue with respect to such payment for the period from and after such Maturity
or Interest Payment Date. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (except at Maturity) will, as
provided in the Indenture referred to herein, be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record
Date for such Interest Payment Date. Any such interest which is payable, but
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on such
3
<PAGE> 4
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders not less than ten days
preceding such Special Record Date, or may be paid at any time in any other
lawful manner, all as more fully provided in the Indenture.
Payment of interest on this Note will be made at the office of the
Paying Agent (defined below) in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payments of public and private debts; provided,
however, that at the option of the Company, payment of interest due (other than
at Maturity) may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the registry books of the Company; and
provided, further, that the repayment of the principal of and interest on this
Note on any Optional Repayment Date(s), if any, indicated above shall be made
upon satisfaction of the provisions herein; and provided, further, that the
Holder of Notes with an aggregate principal amount of $10,000,000 or more will
be entitled to receive payments of interest on this Note (other than at
Maturity) by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Paying Agent not less than 15
days prior to the applicable Interest Payment Date. Such wire instructions,
upon receipt by the Paying Agent, shall remain in effect until revoked by such
Holder.
Payment of principal or premium, if any, on the Maturity of this Note
will be made in immediately available funds upon presentation of this Note at
the office of the Paying Agent in the Borough of Manhattan, The City of New
York, or at such other place as the Company may designate. Payment of interest
due at Maturity will be made to the person to whom payment of the principal and
premium, if any, of this Note shall be made.
Unless the certificate of authentication hereon has been duly executed
by the Authenticating Agent under the Indenture, by the manual signature of one
of its authorized officers, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities
(hereinafter called the "Securities") of the Company designated as its
"Medium-Term Notes, Series B" (the "Notes"). The Notes are issued and to be
issued under an Indenture dated as of July 1, 1988, as amended and supplemented
by the First Supplemental Indenture dated as of June 30, 1992, and that certain
Agreement of Resignation, Appointment and Acceptance dated as of April 15,
1994, among the Company, The Bank of New York Trust Company of California, as
trustee (the "Trustee"),
4
<PAGE> 5
Morgan Guaranty Trust Company of New York, and The Bank of New York (the
"Paying Agent", "Authenticating Agent," and "Security Registrar")
(collectively, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, duties and obligations thereunder of the Company, the Trustee (which
term includes any successor trustee with respect to the Notes under the
Indenture) and the Holders of the Notes and the terms upon which the Notes are
to be authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment and otherwise. The Notes may be issued from time to time
in an aggregate initial offering price up to $200,000,000, which amount may be
increased if duly authorized by the Company.
Except as otherwise provided in the Indenture, this Note will be
issued in global form only registered in the name of the Depositary or its
nominee. This Note will not be issued in definitive form, except as otherwise
provided in the Indenture, and ownership of this Note shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary.
Unless otherwise provided above and in accordance with the provisions
herein, this Note is not subject to any sinking fund and is not redeemable or
repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable
rate payable to, but excluding, the date of redemption (each such date, a
"Redemption Date"), on written notice to the Holder hereof given not more than
60 nor less than 30 days prior to the Redemption Date and in accordance with
the provisions of the Indenture. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
5
<PAGE> 6
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$1,000) at the option of the Holder hereof at a repayment price, unless
otherwise specified above, equal to 100% of the principal amount to be repaid,
together with interest thereon payable to, but excluding, the date of
repayment. For this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Paying Agent at its Corporate
Trust Office, or such other address of which the Company shall from time to
time notify the Holders of the Notes, not more than 60 nor less than 30 days
prior to the related Optional Repayment Date. Exercise of such repayment
option by the Holder hereof shall be irrevocable. With respect to Notes
represented by global securities, any option for repayment may be exercised by
the Depositary, on behalf of the owners of the beneficial interest in the Notes
represented by such global securities, by delivering a written notice
substantially similar to the above-referenced form, duly completed, to the
Paying Agent at the place and within the time period described above. All such
notices shall be irrevocable.
Interest payments on this Note shall include interest accrued from,
and including, the Original Issue Date indicated above, or the most recent date
to which interest has been paid or duly provided for, to, but excluding, the
related Interest Payment Date or Maturity, as the case may be, until the
Principal Amount is paid or made available for payment. Unless otherwise
specified on the first page of this Note, interest payments for this Note shall
be computed and paid on the basis of a 360-day year of twelve 30-day months.
As used herein, "Business Day" means, unless otherwise specified
above, each day that is not a Saturday, Sunday or other day on which banking
institutions are authorized or required by law or executive order to close in
The City of New York.
Any provisions contained herein with respect to this Note, including
the calculation of the Interest Rate applicable to this Note, the Interest
Payment Dates, the Stated Maturity Date or any other variable terms relating
hereto may be modified as specified under "Other Provisions" above or in an
Addendum relating hereto if so specified above.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of and accrued interest on all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
6
<PAGE> 7
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of any
series at the time Outstanding, on behalf of the Holders of the Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Security Registrar in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes containing
identical terms and provisions, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount and tenor of Notes of
different authorized denominations, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
7
<PAGE> 8
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be construed in accordance with and
governed by the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The terms of this Note include those stated in the Indenture and those
made part of the Indenture by the Officers' Certificate delivered pursuant
thereto and the Trust Indenture Act. This Note is subject to all such terms,
and Noteholders are referred to the Indenture and said act for a statement of
them.
8
<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
[FACSIMILE OF SEAL] HILTON HOTELS CORPORATION
By: /s/ STEVE KRITHIS
------------------------------------
Name: Steve Krithis
Title: Vice President and Corporate
Comptroller
Attest:
By: /s/ CHERYL L. MARSH
---------------------------------
Name: Cheryl L. Marsh
Title: Counsel and Corporate
Secretary
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY
OF CALIFORNIA, as Trustee
THE BANK OF NEW YORK,
as Authenticating Agent
By: __________________________
Authorized signatory
9
<PAGE> 10
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at ___________________________________
________________________________________________________________ (Please print
or typewrite name and address of the undersigned)
For this Note to be repaid, the Paying Agent must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to the Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid $______________ and specify the denomination or
denominations (which shall be $1,000 or an integral multiple thereof) of the
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid) $______________.
<TABLE>
<S> <C>
_____________________________________________
Date: _________________ NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as
written upon the face of this Note in every
particular, without alteration or enlargement
or any change whatever.
</TABLE>
Signature Guarantee:
__________________________
10
<PAGE> 11
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification no.)
______________________________________________________________________________
________________________________________________________________ (Please print
or typewrite name and address including postal zip code of assignee)
______________________________________________ the within Note and all rights
thereunder, hereby irrevocably constituting and appointing
____________________________________ attorney to transfer said Note on the
books of the Company with full power of substitution in the premises.
Dated: ______________ ___________________________________
NOTICE: The signature of the registered Holder on this assignment
must correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
Signature Guarantee:
____________________
11
<PAGE> 12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- ................Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
12
<PAGE> 1
EXHIBIT 4(b)
FLOATING RATE GLOBAL MEDIUM-TERM NOTE, SERIES B
Unless and until this certificate is exchanged in whole or in part for
Notes in definitive registered form, this Note may not be transferred except as
a whole by The Depository Trust Company, a New York corporation ("DTC"), to its
nominee or by its nominee to DTC or another nominee of DTC or by DTC or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Any certificate issued in exchange herefor shall be registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment in respect hereof shall be made to Cede
& Co. or to such other entity as is requested by an authorized representative
of DTC).
<TABLE>
<S> <C> <C>
REGISTERED CUSIP No. ___________ PRINCIPAL AMOUNT
No. FLR - $_______________
</TABLE>
HILTON HOTELS CORPORATION
MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
<TABLE>
<S> <C> <C>
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
IF INTEREST RATE BASIS IS LIBOR:
INDEX CURRENCY: _____
DESIGNATED LIBOR PAGE: ____
[ ] Reuters Page: _____
[ ] Telerate Page: _____
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
IF INTEREST RATE BASIS IS CMT RATE:
DESIGNATED CMT MATURITY INDEX: ____ year(s)
DESIGNATED CMT TELERATE PAGE:
[ ] 7055
[ ] 7052
IF 7052: [ ] WEEK
[ ] MONTH
SPREAD: INITIAL INTEREST RESET INTEREST PAYMENT DATES:
DATE:
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C>
SPREAD MULTIPLIER: INTEREST RATE RESET INTEREST RESET DATES:
PERIOD:
MAXIMUM INTEREST MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
RATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
</TABLE>
<TABLE>
<S> <C>
INTEREST CALCULATION: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
from to
[ ] Actual/Actual for the period
from to
Fixed Interest Rate:
CURRENCY:
[ ] Inverse Floating Rate Note Specified Currency:
Fixed Interest Rate: (if other than U.S. dollars,
see attached addendum)
Minimum Denominations:
(Applicable only if Specified
Currency is other than
U.S. dollars)
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
</TABLE>
2
<PAGE> 3
HILTON HOTELS CORPORATION, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the Principal Amount specified above on the Stated
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Stated Maturity Date), and to pay interest thereon, at a rate per annum
equal to the Initial Interest Rate specified above until the Initial Interest
Reset Date specified above and thereafter at a rate per annum determined in
accordance with the provisions hereof and any Addendum relating hereto
depending upon the Interest Rate Basis or Bases, if any, and such other terms
specified above, until, but excluding, the date on which such Principal Amount
is paid or duly made available for payment. Reference herein to "this Note,"
"hereof," "herein" and comparable terms shall include an Addendum hereto if an
Addendum is specified above.
The Company will pay interest monthly, quarterly, semiannually,
annually or such other period as specified above under "Interest Payment
Period," on each Interest Payment Date specified above in arrears, commencing
on the first Interest Payment Date specified above next succeeding the Original
Issue Date specified above, and on the Stated Maturity Date or any Redemption
Date or Optional Repayment Date (the date of each such Stated Maturity Date,
Redemption Date and Optional Prepayment Date and the date on which principal or
an installment of principal is due and payable by declaration of acceleration
pursuant to the Indenture being referred to hereinafter as a "Maturity" with
respect to principal payable on such date); provided, however, that if the
Original Issue Date is between a Regular Record Date (as defined below) and the
next succeeding Interest Payment Date, interest payments will commence on the
Interest Payment Date immediately following the next succeeding record date;
and provided, further, that if an Interest Payment Date (other than an Interest
Payment Date at Maturity) would fall on a day that is not a Business Day (as
defined below), such Interest Payment Date shall be the following day that is a
Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the next preceding day that is a Business
Day. Except as provided above, interest payments will be made on the Interest
Payment Dates shown above. Unless otherwise specified above, the Regular
Record Date shall be the date 15 calendar days (whether or not a Business Day)
prior to the applicable Interest Payment Date. Interest on this Note will
accrue from and including the Original Issue Date specified above, at the rates
determined from time to time as specified herein, until, but excluding, the
date on which the principal hereof has been paid or made available for payment.
If Maturity falls on a day which is not a Business Day as defined below, the
payment due on such Maturity will be paid on the next succeeding Business Day
with the same force and effect as if made
3
<PAGE> 4
on such Maturity and no interest shall accrue with respect to such payment for
the period from and after such Maturity. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture referred to herein, be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record
Date for such Interest Payment Date. Any such interest which is payable, but
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on such Regular Record Date, and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders not less than ten days preceding such Special Record Date, or may be
paid at any time in any other lawful manner all as more fully provided in the
Indenture.
Payment of interest on this Note will be made at the office of the
Paying Agent (defined below) in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company, payment of interest due (other than
at Maturity) may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the registry books of the Company; and
provided, further, that the payment of the principal of and interest on this
Note on any Optional Repayment Date(s), if any, indicated above shall be made
upon satisfaction of the provisions herein; and provided, further, that the
repayment of the principal of and interest on this Note on any Optional
Repayment Date(s), if any, indicated above shall be made upon satisfaction of
the provisions herein; and provided, further, that the Holder of Notes with an
aggregate principal amount of $10,000,000 or more will be entitled to receive
payments of interest on this Note (other than at Maturity) by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received by the Paying Agent not less than 15 days prior to the applicable
Interest Payment Date. Such wire instructions, upon receipt by the Paying
Agent, shall remain in effect until revoked by such Holder.
Payment of principal or premium, if any, at the Maturity of this Note
will be made in immediately available funds upon presentation of this Note at
the office or agency of the Paying Agent in the Borough of Manhattan, The City
of New York, or at such other place as the Company may designate. Payment of
interest due at Maturity will be made to the person to whom payment of the
principal of this Note shall be made.
4
<PAGE> 5
Unless the certificate of authentication hereon has been duly executed
by the Authenticating Agent under the Indenture, by the manual signature of one
of its authorized officers, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities
(hereinafter called the "Securities") of the Company designated as its
"Medium-Term Notes, Series B" (the "Notes"). The Notes are issued and to be
issued under an Indenture dated as of July 1, 1988, as amended and supplemented
by the First Supplemental Indenture dated as of June 30, 1992, and that certain
Agreement of Resignation, Appointment and Acceptance dated as of April 15,
1994, among the Company, The Bank of New York Trust Company of California, as
trustee (the "Trustee"), Morgan Guaranty Trust Company of New York, and The
Bank of New York (the "Paying Agent," "Authenticating Agent," and "Security
Registrar") (collectively, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, duties and obligations thereunder of the Company, the
Trustee (which term includes any successor trustee with respect to the Notes
under the Indenture) and the Holders of the Notes and the terms upon which the
Notes are to be authenticated and delivered. The terms of individual Notes may
vary with respect to interest rates or interest rate formulas, issue dates,
maturity, redemption, repayment and otherwise. The Notes may be issued from
time to time in an aggregate initial offering price up to $200,000,000, which
amount may be increased if duly authorized by the Company.
Except as otherwise provided in the Indenture, this Note will be
issued in global form only registered in the name of the Depositary or its
nominee. This Note will not be issued in definitive form, except as otherwise
provided in the Indenture, and ownership of this Note shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary.
Unless otherwise provided above and in accordance with the provisions
herein, this Note is not subject to any sinking fund and is not redeemable or
repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable
rate
5
<PAGE> 6
payable to, but excluding, the date of redemption (each such date, a
"Redemption Date"), on written notice to the Holder hereof given not more than
60 nor less than 30 days prior to the Redemption Date and in accordance with
the provisions of the Indenture. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$1,000) at the option of the Holder hereof at a repayment price, unless
otherwise specified above, equal to 100% of the principal amount to be repaid,
together with interest thereon payable, but excluding, to the date of
repayment. For this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Paying Agent at its Corporate
Trust Office, or such other address of which the Company shall from time to
time notify the Holders of the Notes, not more than 60 nor less than 30 days
prior to the related Optional Repayment Date. Exercise of such repayment
option by the Holder hereof shall be irrevocable. With respect to Notes
represented by global securities, any option for repayment may be exercised by
the Depositary, on behalf of the owners of the beneficial interest in the Notes
represented by such global securities, by delivering a written notice
substantially similar to the above-referenced form, duly completed, to the
Paying Agent at the place and within the time period described above. All such
notices shall be irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases shown above (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable
Spread Multiplier, if any, specified and applied in the manner
described above.
6
<PAGE> 7
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest
Reset Date specified above; provided, however, that the interest rate
in effect for the period from the Original Issue Date to the Initial
Interest Reset Date will be the Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed
Rate Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases shown above (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable
Spread Multiplier, if any, specified and applied in the manner
described above. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note is payable shall be reset as of
each Interest Reset Date specified above; provided, however, that the
interest rate in effect for the period from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate,
and (ii) the interest rate in effect commencing on, and including, the
Fixed Rate Commencement Date to Maturity shall be the Fixed Interest
Rate, if such a rate is specified above, or if no such Fixed Interest
Rate is so specified, the interest rate in effect hereon on the day
immediately preceding the Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating
Rate Note above, then, except as described below, this Note will bear
interest equal to the Fixed Interest Rate indicated above minus the
rate determined by reference to the Interest Rate Basis or Bases shown
above (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described above; provided, however, that unless
specified to the contrary above, the interest rate hereon will not be
less than zero. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note is payable shall be reset as of
each Interest Reset Date specified above; provided, however, that the
interest rate in effect for the period from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is
designated above as having an Addendum attached, this Note shall bear
interest in accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day
shall be (a) if such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date (as defined below) immediately
preceding such Interest Reset Date
7
<PAGE> 8
or (b) if such day is not an Interest Reset Date, the interest rate determined
as of the Interest Determination Date immediately preceding the most recent
Interest Reset Date. The interest rate with respect to each Interest Rate
Basis shall be determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is
not a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and such next Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the next
preceding Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and
including the next preceding Interest Payment Date in respect of which interest
has been paid (or from and including the Original Issue Date specified above,
if no interest has been paid), to but excluding the related Interest Payment
Date; provided, however, that the interest payments on Maturity will include
interest accrued to but excluding such Maturity. Unless otherwise specified
above, Notes calculated on an Actual/360 basis and Actual/Actual basis (as
specified above), accrued interest for each Interest Calculation Period will be
calculated by multiplying (i) the face amount hereof, (ii) the applicable
interest rate, and (iii) the actual number of days in the related Interest
Calculation Period, and dividing the resulting product by 360 or 365, as
applicable (or, with respect to an Actual/Actual basis Floating Rate Note, if
any portion of the related Interest Calculation Period falls in a leap year,
the product of (i) and (ii) above will be multiplied by the sum of (X) the
actual number of days in that portion of the related Interest Calculation
Period falling in a leap year divided by 366 and (Y) the actual number of days
in that portion of such Interest Calculation Period falling in a non-leap year
divided by 365). For Notes calculated on a 30/360 basis (as specified above),
accrued interest for an Interest Calculation Period will be computed on the
basis of a 360-day year of twelve 30-day months, irrespective of how many days
are actually in such Interest Calculation Period. Unless otherwise specified
above and/or in an attached Addendum hereto, if this Note accrues interest on a
30/360 basis, if any Interest Payment Date or the date of Maturity falls on a
day that is not a Business Day, the related payment of principal or interest
will be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest will accrue on the
amount so payable for the period from and after such Interest Payment Date or
Maturity, as the case may be. As used herein, "Interest Calculation Period"
means with respect to any period, the period from and including the most recent
Interest Reset Date (or from and including the original issue date in the case
of the first Interest Reset Date) to but excluding the next succeeding
8
<PAGE> 9
Interest Reset Date for which accrued interest is being calculated. Unless
otherwise specified above interest with respect to Notes for which the interest
rate is calculated with reference to two or more Interest Rate Bases will be
calculated in the same manner as if only one of the applicable Interest Rate
Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding each Interest Reset Date; the "Interest Determination
Date" with respect to LIBOR shall be the second London Business Day (as defined
below) immediately preceding each Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last working day of the month immediately preceding each Interest
Reset Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of
San Francisco") publishes the Index (as defined below); the "Interest
Determination Date" with respect to the Treasury Rate will be the day in the
week in which the related Interest Reset Date falls on which day Treasury Bills
(as defined below) are normally auctioned (Treasury Bills are normally sold at
auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday); provided, however, that if an
auction is held on the Friday of the week preceding the related Interest Reset
Date, the related Interest Determination Date shall be such preceding Friday;
and provided, further, that if an auction shall fall on any Interest Reset
Date, then the Interest Reset Date shall instead be the first Business Day
following such auction.
Unless otherwise specified above, the "Calculation Date" pertaining to
any Interest Determination Date will be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day or (ii) the Business Day preceding the
applicable Interest Payment Date or Maturity, as the case may be. All
calculations on this Note shall be made by the Calculation Agent specified
above or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all amounts used in
or resulting from such calculation will be rounded, in the case of United
States dollars, to the nearest cent or, in the case of a Specified Currency
other than United States dollars, to the nearest unit (with one-half cent being
rounded upward).
9
<PAGE> 10
As used herein, "Business Day" means, unless otherwise specified
above, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or required by
law or executive order to close in The City of New York and, if the Interest
Rate Basis shown above is LIBOR, is also a London Business Day; provided,
however, that, if this Note is to be paid in a Specified Currency other than
United States dollars, such day is also not a day on which banking institutions
are authorized or required by law or executive order to close in the Principal
Financial Center (as defined below) of the country of such Specified Currency
(or, in the case of the European Currency Unit ("ECU"), is not a day designated
as an ECU Non-Settlement Day by the ECU Banking Association or otherwise
generally regarded in the ECU interbank market as a day on which payments in
ECUs shall not be made).
As used herein, "London Business Day" means any day (i) if the Index
Currency (as defined below) is other than the European Currency Unit ("ECU"),
on which dealings in such Index Currency are transacted in the London interbank
market or (ii) if the Index Currency is ECU, that is not designated as an ECU
Non-Settlement Day by the ECU Banking Association or otherwise generally
regarded in the ECU interbank market as a day on which payments on ECUs shall
not be made.
Determination of CD Rate. If an Interest Rate Basis for this Note is
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable certificates of deposit having
the Index Maturity specified above as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication ("H.15(519)") under the heading "CDs
(Secondary Market)", or, if not published by 3:00 P.M., New York City time, on
the related Calculation Date, the rate on such CD Rate Interest Determination
Date for negotiable certificates of deposit of the Index Maturity specified
above as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit." If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards) of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Rate Interest Determination Date, of three leading nonbank dealers in
negotiable United States dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit of
major
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<PAGE> 11
United States money market banks for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity designated above in an amount
that is representative for a single transaction in that market at that time;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
Determination of CMT Rate. If an Interest Rate Basis for this Note is
the CMT Rate, as indicated above, the CMT Rate shall be determined on the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date"), as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date
and (ii) if the Designated CMT Telerate Page is 7052, the week, or the month,
as applicable, ended immediately preceding the week in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer displayed
on the relevant page, or if not displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards) of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
the CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality,
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<PAGE> 12
one of the highest) and the lowest quotation (or, in the event of equality, one
of the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent cannot obtain three such Treasury Note quotations, the
CMT Rate for such CMT Rate Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity based on the arithmetic
mean (rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards) of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
the CMT Rate Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards) of the
offer prices obtained and neither the highest nor the lowest of such quotes
will be eliminated; provided however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as described herein, the
CMT Rate will be the CMT Rate in effect on such CMT Rate Interest Determination
Date. If two Treasury Notes with an original maturity as described in the
third preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in the applicable Pricing Supplement
(or any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified in the applicable Pricing Supplement, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated.
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<PAGE> 13
If no such maturity is specified in the applicable Pricing Supplement, the
Designated CMT Maturity Index shall be 2 years.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
this Note is the Commercial Paper Rate, as indicated above, the Commercial
Paper Rate shall be determined on the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity specified above as published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by 3:00 P.M.,
New York City time, on the related Calculation Date, then the Commercial Paper
Rate will be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
shown above as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by
3:00 P.M., New York City time, on the related Calculation Date such rate is not
yet published in either H.15(519) or Composite Quotations, then the Commercial
Paper Rate on such Commercial Paper Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the Money Market Yield of the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards) of the
offered rates at approximately 11:00 A.M., New York City time, on such
Commercial Paper Rate Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity specified above placed for an
industrial issuer whose bond rating is "AA" or the equivalent, from a
nationally recognized statistical rating organization; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Eleventh District Cost of Funds Rate. If an Interest
Rate Basis for this Note is the Eleventh District
13
<PAGE> 14
Cost of Funds Rate, as indicated above, the Eleventh District Cost of Funds
Rate shall be determined on the applicable Interest Determination Date (an
"Eleventh District Cost of Funds Rate Interest Determination Date"), as the
rate equal to the monthly weighted average cost of funds for the calendar month
immediately preceding the month in which such Eleventh District Cost of Funds
Rate Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such
Eleventh District Cost of Funds Rate Interest Determination Date. If such rate
does not appear on Telerate Page 7058 on any related Eleventh District Cost of
Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate for such Eleventh District Cost of Funds Rate Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
of the Eleventh Federal Home Loan Bank District that was most recently
announced (the "Index") by the FHLB of San Francisco as such cost of funds for
the calendar month immediately preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate determined as
of such Eleventh District Cost of Funds Rate Interest Determination Date will
be the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date. "Telerate Page 7058" means the
display on the Dow Jones Telerate Service on such page (or such other page as
may replace such page) in that service displaying the monthly average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District.
Determination of Federal Funds Rate. If an Interest Rate Basis for
this Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate
shall be determined on the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date"), as the rate on such date for federal
funds as published in H.15(519) under the heading "Federal Funds (Effective)"
or, if not published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date, as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If by 3:00 P.M., New York City time, on the related
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the Federal Funds Rate on such Federal Funds Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards) of the
rates for the last transaction in overnight United States dollar federal funds
arranged by three leading brokers of federal funds transactions in The City of
New York selected by the Calculation Agent prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination
14
<PAGE> 15
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be
the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date"), as follows:
(a) (i) if "LIBOR Reuters" is specified above, the arithmetic
mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards)
of the offered rates (unless the specified Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which
case such single rate shall be used) for deposits in the Index
Currency (as defined below) having the Index Maturity specified above,
commencing on the second London Business Day immediately following
such LIBOR Interest Determination Date, that appear on the Designated
LIBOR Page specified above as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date, if at least two such offered rates
appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (ii) if "LIBOR Telerate" is specified above
or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified as the
method for calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity specified above commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date that appears on the Designated LIBOR Page specified
above as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear or if
no such rate appears, as applicable, LIBOR in respect of the related
LIBOR Interest Determination Date will be determined in accordance
with the provisions described in clause (b) below.
(b) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear, or no rate appears, as
the case may be, on the applicable Designated LIBOR Page as specified
in clause (a) above, the Calculation Agent will request the principal
London offices of each of four major reference banks in the London
interbank market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity shown above, commencing
on the second London Business Day immediately following such LIBOR
Interest Determination Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such
15
<PAGE> 16
LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided,
LIBOR determined on such LIBOR Interest Determination Date will be the
arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point
rounded upwards) of such quotations. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date
will be the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of
a percentage point rounded upwards) of the rates quoted at
approximately 11:00 A.M. in the applicable Principal Financial Center
(as defined below) on such LIBOR Interest Determination Date by three
major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity specified above and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time;provided, howeve, that if the
banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Index Currency" means the currency (including composite
currencies) specified above as the currency for which LIBOR shall be
calculated. If no such currency is specified above, the Index
Currency shall be United States dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
specified above, the display on the Reuters Monitor Money Rates
Service for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency or (b) if "LIBOR
Telerate" is specified above or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified as the method for calculating LIBOR, the
display on the Dow Jones Telerate Service for the purpose of
displaying the London interbank rates of major banks for the
applicable Index Currency.
"Principal Financial Center" will generally be the capital
city of the country of the specified Index Currency, except that with
respect to United States dollars, Deutsche Marks, Dutch Guilders,
Italian Lire, Swiss Francs and ECUs, the Principal Financial Center
shall be The City of New York, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
Determination of Prime Rate. If an Interest Rate Basis for this Note
is the Prime Rate, as indicated above, the Prime Rate
16
<PAGE> 17
shall be determined on the applicable Interest Determination Date (a "Prime
Rate Interest Determination Date") as the rate on such date as such rate is
published in H.15(519) under the heading "Bank Prime Loan." If such rate is
not published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean (rounded to
the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards) of the rates of interest
publicly announced by each bank that appears on the Reuters Screen NYMF Page
(as defined below) as such bank's prime rate or base lending rate as in effect
for such Prime Rate Interest Determination Date. If fewer than four such rates
but more than one such rate appear on the Reuters Screen NYMF Page for such
Prime Rate Interest Determination Date, the Prime Rate shall be the arithmetic
mean (rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards) of the prime rates
quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than two such rates appear on the
Reuters Screen NYMF Page, the Prime Rate will be determined by the Calculation
Agent on the basis of the rates furnished in The City of New York by three
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, having total equity capital of at
least $500 million and being subject to supervision or examination by Federal
or State authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Prime Rate Interest Determination Date will be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the NYMF page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
Note is the Treasury Rate, as specified above, the Treasury Rate shall be
determined on the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") as the rate applicable to the most recent auction
of direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified above, as such rate is published in H.15(519) under the
heading "Treasury Bills -- auction average (investment)" or, if not so
published by 3:00 P.M., New York City time, on the related Calculation Date,
the auction average rate (expressed as a bond equivalent on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis) as
17
<PAGE> 18
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury Bills having the Index
Maturity specified above are not reported as provided by 3:00 P.M., New York
City time, on such Calculation Date, or if no such auction is held in a
particular week, then the Treasury Rate will be calculated by the Calculation
Agent and will be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean (rounded to the nearest one hundred-thousandth of
a percentage point, with five one-millionths of a percentage point rounded
upwards) of the secondary market bid rates, as of approximately 3:30 P.M., New
York City time, on such Treasury Rate Interest Determination Date of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified above; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Any provisions contained herein with respect to this Note, including
the determination of an Interest Rate Basis, calculation of the Interest Rate
applicable to this Note, and the specification of one or more Interest Rate
Bases, the Interest Payment Dates, the Stated Maturity Date or any other
variable terms relating hereto may be modified as specified under "Other
Provisions" above or in an Addendum relating hereto if so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of and accrued interest on all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the
18
<PAGE> 19
rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of any series at the time Outstanding, on
behalf of the Holders of the Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office of the Security Registrar in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes containing identical terms and
provisions, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount and tenor of Notes of
different authorized denominations, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
19
<PAGE> 20
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be construed in accordance with and
governed by the laws of the State of New York.
The terms of this Note include those stated in the Indenture and those
made part of the Indenture by the Officers' Certificate delivered pursuant
thereto and the Trust Indenture Act. This Note is subject to all such terms,
and Noteholders are referred to the Indenture and said act for a statement of
them.
20
<PAGE> 21
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
[FACSIMILE OF SEAL] HILTON HOTELS CORPORATION
By: /s/ STEVE KRITHIS
------------------------------------
Name: Steve Krithis
Title: Vice President and Corporate
Comptroller
Attest:
By: /s/ CHERYL L. MARSH
---------------------------------
Name: Cheryl L. Marsh
Title: Counsel and Corporate
Secretary
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY
OF CALIFORNIA, as Trustee
THE BANK OF NEW YORK,
as Authenticating Agent
By: __________________________
Authorized signatory
21
<PAGE> 22
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at __________________________________
_______________________________________________________________ (Please print
or typewrite name and address of the undersigned)
For this Note to be repaid, the Paying Agent must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid $______________ and specify the denomination or
denominations (which shall be $1,000 or an integral multiple thereof) of the
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid) $________________.
Date ________________ ___________________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
Signature Guarantee:
___________________________
22
<PAGE> 23
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
______________________________________________________________________________
______________________________________________________________________________
________________________________________________________________ (Please print
or typewrite name and address including postal zip code of assignee)
________________________________________________________________ the within
Note and all rights thereunder, hereby irrevocably constituting and appointing
____________________________________ attorney to transfer said Note on the
books of the Company with full power of substitution in the premises.
Dated: __________________ ___________________________________
NOTICE: The signature of the registered Holder on this assignment must
correspond with the name as written upon the face of the within instrument
in every particular, without alteration or enlargement or any change
whatsoever.
Signature Guarantee:
________________________
23
<PAGE> 24
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- ...............Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
24
<PAGE> 1
EXHIBIT 10
EXECUTION COPY
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE,
dated as of April 15, 1994 by and among HILTON HOTELS
CORPORATION, a corporation duly organized and existing under
the laws of Delaware and having its principal office at 9336
Civic Center Drive, Beverly Hills, California 90209 (the
"Company"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a
banking corporation duly organized and existing under the laws
of the State of New York and having its principal corporate
trust office at 60 Wall Street, New York, New York 10260
("Resigning Trustee"), THE BANK OF NEW YORK TRUST COMPANY OF
CALIFORNIA, a banking corporation duly organized and existing
under the laws of the State of California and having its
principal corporate trust office at 700 South Flower Street,
Suite 200, Los Angeles, California 90017 ("BNY California")
and THE BANK OF NEW YORK, a banking corporation duly organized
and existing under the laws of the State of New York and
having its principal corporate trust office at 101 Barclay
Street, New York, New York 10286 ("BNY").
RECITALS:
WHEREAS, there was originally authorized $200,000,000
aggregate principal amount of the Company's Series A Medium
Term Notes and $300,000,000 aggregate principal amount of its
7.70% Notes due July 15, 2002 (the "Securities") under a Trust
Indenture dated as of July 1, 1988 by and between the Company
and the Resigning Trustee (the "Indenture");
WHEREAS, Section 8.10 of the Indenture provides that the
Trustee may at any time resign by giving written notice of
such resignation to the Company, effective upon the acceptance
by a successor Trustee of its appointment as a successor
Trustee;
<PAGE> 2
WHEREAS, Section 8.10 of the Indenture provides that, if
the Trustee shall resign, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee;
WHEREAS, Section 8.11 of the Indenture provides that any
successor Trustee appointed in accordance with the Indenture
shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such
appointment under the Indenture, and thereupon the resignation
of the predecessor Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers,
trusts and duties of the predecessor trustee;
WHEREAS, the Company desires to appoint BNY California as
Trustee, and BNY as Paying Agent and Registrar to succeed
Resigning Trustee in such capacities under the Indenture; and
WHEREAS, BNY California is willing to accept such ap-
pointment as successor Trustee, and BNY is willing to accept
such appointment as successor Paying Agent and Registrar under
the Indenture;
NOW, THEREFORE, the Company, Resigning Trustee, BNY
California and BNY, for and in consideration of the premises
and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby consent
and agree as follows:
ARTICLE I
THE RESIGNING TRUSTEE
SECTION 1.01 Pursuant to Section 8.10 of the Indenture,
Resigning Trustee hereby notifies the Company that Resigning
Trustee is hereby resigning as Trustee under the Indenture.
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<PAGE> 3
SECTION 1.02 Resigning Trustee hereby represents and
warrants to BNY California that:
(a) No covenant or condition contained in the Indenture
has been waived by Resigning Trustee or, to the best
knowledge of responsible officers of Resigning
Trustee's corporate trust department, by the Holders
of the percentage in aggregate principal amount of
the Securities required by the Indenture to effect
any such waiver.
(b) There is no action, suit or proceeding pending or,
to the best knowledge of responsible officers of
Resigning Trustee's corporate trust department,
threatened against Resigning Trustee before any
court or any governmental authority arising out of
any act or omission of Resigning Trustee as Trustee
under the Indenture.
(c) As of the effective date of this Agreement, Resign-
ing Trustee will hold no moneys or property under
the Indenture.
(d) Pursuant to Section 3.03 of the Indenture, Resigning
Trustee duly authenticated and delivered, on
February 8, 1994, Series A Medium Term Notes,
$134,050,000 of which are outstanding as of the
effective date hereof, and 7.70% Notes due July 15,
2002, $300,000,000 of which are outstanding as of
the effective date hereof.
(e) Each person who so authenticated the Securities was
duly elected, qualified and acting as an officer of
Resigning Trustee and empowered to authenticate the
Securities at the respective times of such
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<PAGE> 4
authentication and the signature of such person or
persons appearing on such Securities is each such
person's genuine signature.
(f) This Agreement has been duly authorized, executed
and delivered on behalf of Resigning Trustee and
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
(g) To the best knowledge of responsible officers of the
Resigning Trustee's corporate trust department, no
event has occurred and is continuing which is, or
after notice or lapse of time would become, an Event
of Default under Section 7.01 of the Indenture.
SECTION 1.03 Resigning Trustee hereby assigns,
transfers, delivers and confirms to BNY California and BNY all
right, title and interest of Resigning Trustee in and to the
trust under the Indenture and all the rights, powers and
trusts of the Trustee, Paying Agent and Register under the
Indenture. Resigning Trustee shall execute and deliver such
further instruments and shall do such other things as BNY
California and BNY may reasonably require so as to more fully
and certainly vest and confirm in BNY California and BNY all
the rights, powers and trusts hereby assigned, transferred,
delivered and confirmed to BNY California as Trustee and BNY
as Paying Agent and Registrar.
SECTION 1.04 Resigning Trustee shall deliver to BNY
California or BNY, as applicable, as of or immediately after
the effective date hereof, all of the documents listed on
Exhibit A hereto.
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<PAGE> 5
ARTICLE II
THE COMPANY
SECTION 2.01 The Company hereby accepts the resignation
of Resigning Trustee as Trustee, Paying Agent and Registrar
under the Indenture.
SECTION 2.02 The Company hereby certifies that Exhibit
B annexed hereto is a copy of the Board Resolution which was
duly adopted by the Board of Directors of the Company, which
is in full force and effect on the date hereof, and which
authorizes certain officers of the Company to: (a) accept
Resigning Trustee's resignation as Trustee, Paying Agent and
Registrar under the Indenture; (b) appoint BNY California as
Trustee and BNY as Paying Agent and Registrar under the
Indenture; and (c) execute and deliver such agreements and
other instruments as may be necessary or desirable to
effectuate the succession of BNY California as Trustee and BNY
as Paying Agent and Registrar under the Indenture.
SECTION 2.03 The Company hereby appoints BNY California
as Trustee and BNY as Paying Agent and Registrar under the
Indenture to succeed to, and hereby vests BNY California and
BNY with, all the rights, powers, and trusts of Resigning
Trustee under the Indenture with like effect as if originally
named as Trustee and Paying Agent and Registrar, respectively,
in the Indenture.
SECTION 2.04 Promptly after the effective date of this
Agreement, the Company shall cause a notice, substantially in
the form of Exhibit C annexed hereto, to be sent to each
Holder of the Securities in accordance with the provisions of
Section 8.10 of the Indenture.
- 5 -
<PAGE> 6
SECTION 2.05 The Company hereby represents and warrants
to Resigning Trustee, BNY California and BNY that:
(a) The Company is a corporation duly and validly
organized and existing pursuant to the laws of the
State of Delaware.
(b) The Indenture was validly and lawfully executed and
delivered by the Company and the Securities were
validly issued by the Company.
(c) The Company has performed or fulfilled prior to the
date hereof, and will continue to perform and
fulfill after the date hereof, each covenant, agree-
ment, condition, obligation and responsibility under
the Indenture.
(d) No event has occurred and is continuing which is, or
after notice or lapse of time would become, an Event
of Default under Section 7.01 of the Indenture.
(e) No covenant or condition contained in the Indenture
has been waived by the Company or, to the best of
the Company's knowledge, by Holders of the percent-
age in aggregate principal amount of the Securities
required to effect any such waiver.
(f) There is no action, suit or proceeding pending or,
to the best of the Company's knowledge, threatened
against the Company before any court or any
governmental authority arising out of any act or
omission of the Company under the Indenture.
(g) This Agreement has been duly authorized, executed
and delivered on behalf of the Company and
- 6 -
<PAGE> 7
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
(h) All conditions precedent relating to the appointment
of BNY California as successor Trustee and of BNY as
successor Paying Agent and Registrar under the
Indenture have been complied with by the Company.
ARTICLE III
THE SUCCESSOR TRUSTEE
SECTION 3.01 BNY California hereby represents and
warrants to Resigning Trustee and to the Company that:
(a) BNY California is not disqualified under the
provisions of Section 8.08 and is eligible under the
provisions of Section 8.09 of the Indenture to act
as Trustee under the Indenture.
(b) This Agreement has been duly authorized, executed
and delivered on behalf of BNY California and
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
SECTION 3.02 BNY California hereby accepts its ap-
pointment as successor Trustee under the Indenture and accepts
the rights, powers, duties and obligations of Resigning
Trustee under the Indenture, upon the terms and conditions set
forth therein, with like effect as if originally named as
Trustee under the Indenture.
SECTION 3.03 BNY hereby accepts its appointment as
successor Paying Agent and Registrar under the Indenture and
accepts the rights, powers, duties and obligations of
- 7 -
<PAGE> 8
Resigning Trustee in its capacity as resigning Paying Agent
and Registrar under the Indenture, upon the terms and
conditions set forth therein, with like effect as if
originally named as Paying Agent and Registrar under the
Indenture.
SECTION 3.04 References in the Indenture to "Corporate
Trust Office" or other similar terms shall be deemed to refer
to the principal corporate trust office of BNY California as
successor Trustee, which is presently located at 700 South
Flower Street, Suite 200, Los Angeles, California 90017, or,
as applicable, the office of BNY, as Paying Agent and
Registrar, which is presently located at 101 Barclay Street,
Floor 21 West, New York, New York 10286.
ARTICLE V
MISCELLANEOUS
SECTION 4.01 Except as otherwise expressly provided
herein or unless the context otherwise requires, all terms
used herein which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
SECTION 4.02 This Agreement and the resignation, ap-
pointment and acceptance effected hereby shall be effective as
of the opening of business on May 1, 1994.
SECTION 4.03 Resigning Trustee hereby acknowledges pay-
ment or provision for payment in full by the Company of
compensation for all services rendered by Resigning Trustee
under Section 8.07 of the Indenture and reimbursement in full
by the Company of the expenses, disbursements and advances
incurred or made by Resigning Trustee in accordance with the
provisions of the Indenture. Resigning Trustee acknowledges
- 8 -
<PAGE> 9
that it relinquishes any lien it may have upon all property or
funds held or collected by it to secure any amounts due it
pursuant to the provisions of Section 8.07 of the Indenture.
The Company acknowledges its obligation set forth in Section
8.07 of the Indenture to indemnify Resigning Trustee for, and
to hold Resigning Trustee harmless against, any loss, li-
ability and expense incurred without negligence or bad faith
on the part of the Resigning Trustee and arising out of or in
connection with the acceptance or administration of the trust
evidenced by the Indenture (which obligation shall survive the
execution hereof).
SECTION 4.04 This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York.
SECTION 4.05 This Agreement 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 4.06 The Company, Resigning Trustee, BNY
California and BNY hereby acknowledge receipt of an executed
and acknowledged counterpart of this Agreement and the
effectiveness thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement of Resignation, Appointment and Acceptance to be
duly executed and acknowledged and their respective seals to
be affixed hereunto and duly attested all as of the day and
year first above written.
- 9 -
<PAGE> 10
[SEAL] HILTON HOTELS CORPORATION
Attest: By: /s/ RICHARD H. CHAMBERS
--------------------------------
Name: Richard H. Chambers
/s/ STEVE KRITHIS Title: Treasurer
------------------------------
Name: Steve Krithis
Title: Vice President/
Corporate Comptroller
[SEAL]
Attest: MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Resigning
Trustee
By: /s/ M. CULHANE
--------------------------------
Name: M. Culhane
Title: Vice President
/s/ DIANE M. HILLS
------------------------------
Name: Diane M. Hills
Title: Assistant Secretary
[SEAL]
Attest: THE BANK OF NEW YORK TRUST
COMPANY OF CALIFORNIA,
as successor Trustee
By: /s/ DAVID A. OESER
--------------------------------
Name: David A. Oeser
Title: Assistant Vice President
/s/ CAROL GRAFALS
------------------------------
Name: Carol Grafals
Title: Vice President
Attest: THE BANK OF NEW YORK, as
successor Paying Agent
and Registrar
By: /s/ Jenepher Lattibeaudiere
--------------------------------
Name: Jenepher Lattibeaudiere
Title: Vice President
/s/ ARTHUR P. BARBER
------------------------------
Name: Arthur P. Barber
Title: Assistant Vice President
- 10 -
<PAGE> 11
STATE OF CALIFORNIA )
: ss:
COUNTY OF CALIFORNIA )
On the 22nd day of April, 1994, before me personally came
Richard H. Chambers to me known, who, being by me duly sworn,
did depose and say that he resides at 4915 Queen Florence Lane,
Woodland Hills, CA; that he is Treasurer of HILTON HOTELS
CORPORATION, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by the authority of
the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
Notary Public
- 11 -
<PAGE> 12
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On the 29th day of April, 1994, before me personally came
Michael Culhane to me known, who, being by me duly sworn, did
depose and say that he resides at Brooklyn, New York 11209; that
he is Vice President of MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by the authority of the
Board of Directors of said corporation; and that he signed his
name thereto by like authority.
Notary Public
- 12 -
<PAGE> 13
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On the 19th day of April, 1994, before me personally came
Jenepher Lattibeaudiere to me known, who, being by me duly
sworn, did depose and say that she resides at 51 Jackson
Street, E. Farmingdale, NY 11735; that she is Vice President
of THE BANK OF NEW YORK, one of the corporations described in
and which executed the above instrument; that she knows the
corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed
by the authority of the Board of Directors of said
corporation; and that she signed her name thereto by like
authority.
Notary Public
- 13 -
<PAGE> 14
STATE OF CALIFORNIA )
: ss:
COUNTY OF CALIFORNIA )
On the 22nd day of April, 1994, before me personally came
David A. Oeser to me known, who, being by me duly sworn, did
depose and say that he resides at Los Angeles, CA; that he is
Assistant Vice President of THE BANK OF NEW YORK TRUST COMPANY
OF CALIFORNIA, one of the corporations described in and which
executed the above instrument; that he knows the corporate
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
the authority of the Board of Directors of said corporation;
and that he signed his name thereto by like authority.
Notary Public
- 14 -
<PAGE> 15
EXHIBIT A
Documents to be delivered to Successor Trustee
1. Executed copy of Indenture dated as of July 1, 1988
and First Supplement Indenture dated as of June 30,
1992.
2. Conformed copy of Indenture and First Supplement
Indenture dated as of June 30, 1992.
3. File of closing documents from initial issuance.
4. Copies of the most recent of each of the SEC reports
delivered by the Company pursuant to Section 6.04 of
the Indenture.
5. A copy of the most recent compliance certificate
delivered pursuant to Section 5.04 of the Indenture.
6. Certified list of Holders as of
, including certificate detail
and all "stop transfers" and the reason for such
"stop transfers" (or, alternatively, if there are a
substantial number of registered Holders, the
computer tape reflecting the identity of such Hold-
ers).
7. Copies of any official notices sent by the Trustee
to all the Holders of the Securities pursuant to the
terms of the Indenture during the past twelve months
and a copy of the most recent Trustee's annual
report to holders delivered pursuant to Section 6.04
of the Indenture.
8. List of any documents which, to the knowledge of
Resigning Trustee, are required to be furnished but
have not been furnished to Resigning Trustee, or if
none, a statement from the Resigning Trustee to that
effect.
<PAGE> 16
HILTON HOTELS CORPORATION
NOTICE
To the Holders of Series A Medium Term Notes and 7.70% Notes
due July 15, 2002 of Hilton Hotels Corporation:
NOTICE IS HEREBY GIVEN, pursuant to Section 8.10 of the
Indenture (the "Indenture") dated as of July 1, 1988 by and
between Hilton Hotels Corporation (the "Company") and Morgan
Guaranty Trust Company of New York, as Trustee ("Morgan
Guaranty"), that Morgan Guaranty has resigned as Trustee,
Paying Agent and Registrar under the Indenture.
The Bank of New York Trust Company of California, a
corporation duly organized and existing under the laws of the
State of California, has accepted appointment as Trustee, and
The Bank of New York, a banking corporation duly organized and
existing under the laws of the State of New York has accepted
appointment as Paying Agent and Registrar under the
Indenture. The address of the corporate trust office of The
Bank of New York Trust Company of California is 700 South
Flower Street, Suite 200, Los Angeles, California 90017 and
the address of the corporate trust office of The Bank of New
York is 101 Barclay Street, New York, New York 10286.
Morgan Guaranty's resignation as Trustee, Paying Agent
and Registrar, The Bank of New York Trust Company of
California's appointment as successor Trustee and The Bank of
New York's appointment as successor Paying Agent and Registrar
were effective as of the opening of business on May 1, 1994.
Dated: July 20, 1994
Very truly yours,
HILTON HOTELS CORPORATION
