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ITT CORPORATION
(formerly named ITT DESTINATIONS, INC.)
STARWOOD HOTELS & RESORTS WORLDWIDE, INC., as Guarantor
AND
THE BANK OF NEW YORK, as Trustee
(successor to The First National Bank of Chicago)
FIRST INDENTURE SUPPLEMENT
Dated as of December 31, 1998
to
AMENDED AND RESTATED INDENTURE
Dated as of December 19, 1995
Between ITT Corporation
(formerly known as ITT Destinations, Inc.), as Issuer
and
The First National Bank of Chicago, as Trustee
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FIRST INDENTURE SUPPLEMENT
FIRST INDENTURE SUPPLEMENT dated as of December 31, 1998 (this
"Supplement"), among ITT CORPORATION (formerly named ITT Destinations, Inc.), a
corporation duly organized and validly existing under the laws of the State of
Nevada (the "Issuer"), Starwood Hotels & Resorts Worldwide, Inc., a corporation
duly organized and validly existing under the laws of the State of Maryland (the
"Guarantor"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
RECITALS OF THE ISSUER AND THE GUARANTOR
The Issuer and the Trustee have heretofore executed and delivered a
certain Amended and Restated Indenture dated as of December 19, 1995 (the
"Indenture"), which provides for the issuance from time to time by the "Issuer"
(as more fully defined in the Indenture) of its debentures, notes or other
evidences of indebtedness in one or more series ("Securities", as more fully
defined in the Indenture).
Prior to the effectiveness of this Supplement, the Issuer has issued
Securities under the Indenture and as of the date of this Supplement, the only
Securities that have been issued and remain outstanding under the Indenture
consist of $250,000,000 aggregate principal amount of 6 3/4% Notes due November
15, 2003, $700,000,000 aggregate principal amount of 6 1/4% Notes due November
15, 2000, $450,000,000 aggregate principal amount of 6 3/4% Notes due November
15, 2005, $450,000,000 aggregate principal amount of 7 3/8% Debentures due
November 15, 2015 and 150,000,000 aggregate principal amount of 7 3/4%
Debentures due November 15, 2025.
This Supplement amends the Indenture, pursuant to Section 10.1
thereof, to provide for the unconditional guarantee by the Guarantor of the full
and punctual payment, when due, of the principal of, premium, if any, and
interest on the Securities previously issued under the Indenture and outstanding
on the date of this Supplement, and the full and punctual performance within the
grace period set forth in Section 6.1(d) or (e) of the Indenture, if applicable,
of all other obligations of the Issuer under such Securities or under the
Indenture as applicable to such Securities.
All acts and proceedings required by law, by the Indenture and by
the certificates of incorporation and bylaws of the Issuer and the Guarantor
necessary to constitute this Supplement a legal, valid and binding agreement for
the uses and purposes herein set forth in accordance with its terms have been
done and performed, and the execution and delivery of this Supplement have in
all respects been duly authorized.
NOW, THEREFORE, in consideration of the foregoing and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each party agrees as follows for the benefit of the other parties and for the
equal and ratable benefit of the Holders (as defined in the Indenture) of the
Securities.
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ARTICLE 1
AMENDMENTS
SECTION 1.01. The Guarantor is hereby made a party to the Indenture.
SECTION 1.02. Section 1.01 of the Indenture is hereby amended to add
to the definitions set forth in such section the following additional
definitions in the appropriate alphabetical order:
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Indenture Supplement" means the First Indenture Supplement dated as
of December 31, 1998, to this Indenture.
"Guarantee" means the guarantee set forth in Section 16.1 hereof. The
Guarantee shall be deemed part of the Guaranteed Securities.
"Guaranteed Securities" means, collectively, the Securities, issued under
the Indenture prior to the date of the First Indenture Supplement and
outstanding as of such date and "Guaranteed Security" means any of such
Securities.
"Guarantor" means Starwood Hotels & Resorts Worldwide, Inc., a Maryland
corporation.
SECTION 1.03. The definition of "Officers' Certificate" set forth in
Section 1.1 of the Indenture is hereby amended by inserting the words "or of the
Guarantor, as the case may be," immediately after the words "the Issuer"
therein.
SECTION 1.04. Section 5.2(c) of the Indenture is hereby amended by
inserting the words, ", the Guarantor" after the words "with the Issuer" in such
section and by inserting the words "nor the Guarantor" after the words "neither
the Issuer" of such section.
SECTION 1.05. Section 6.5 of the Indenture is hereby amended by
inserting the words ", the Guarantor" after the words "in every such case the
Issuer" and the words "the Guarantor," after the words "powers of the Issuer,"
thereof.
SECTION 1.06. Section 6.10 of the Indenture is hereby amended by
inserting the words "the Guarantor," after the words "the Issuer," in the last
sentence thereof.
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SECTION 1.07. Section 10.1 of the Indenture is hereby amended by
inserting the words "the Guarantor" after the words "when authorized by a Board
Resolution," in the first sentence of such section and by inserting the words
"and the Guarantor" after the words "with the Issuer" in the first sentence
following clause (j) thereof.
SECTION 1.08. Section 10.2 of the Indenture is hereby amended by
inserting the words "the Guarantor" after the words "when authorized by a Board
Resolution," in the first sentence of such section and by inserting the words
"and the Guarantor" after the words "the Issuer" in both places they appear in
the second paragraph of such section.
SECTION 1.09. Section 10.3 of the Indenture is hereby amended by
inserting the words ", the Guarantor" after the words "the Issuer" in the second
line of such section.
SECTION 1.10. Section 10.4 of the Indenture is hereby amended by
inserting the words ", the Guarantor" after the words "the Issuer" in such
section.
SECTION 1.11. Section 12.5 of the Indenture is hereby amended by
inserting the words "or the Guarantor, as the case may be," after the words
"only to the Issuer" in such section.
SECTION 1.12. Section 13.1 of the Indenture is hereby deleted and
replaced in its entirety by the following:
"Section 13.1. Incorporators, Stockholders, Officers and Directors of the
Issuer and the Guarantor Exempt from Individual Liability. No recourse
under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security or Coupon, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or
against any past, present or future stockholder, officer or director, as
such, of the Issuer or the Guarantor or any successor to the Issuer or the
Guarantor, as the case may be, either directly, or through the Issuer or
the Guarantor or any successor to the Issuer or the Guarantor, as the case
may be, under any rule of law, statute or constitutional provision by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities or Coupons, by the Holders thereof and as
part of the consideration for the issue of such Securities and Coupons, if
any, appertaining thereto."
SECTION 1.13. Section 13.5 of the Indenture is hereby amended by
inserting the following sentence after the first sentence thereof:
"Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee for the Securities of
any series or by the Holders of Securities of any series or of any Coupons
appertaining thereto on the Guarantor may be given or served by registered
mail addressed (until another address is filed by the Guarantor
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with the Trustee) as follows: Starwood Hotels and Resorts Worldwide, Inc.,
Attention of the General Counsel, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX
00000."
SECTION 1.14. The Indenture is hereby amended by adding the
following Article Sixteen after Article Fifteen of the Indenture:
ARTICLE SIXTEEN
GUARANTEE
SECTION 16.1. Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees to each Holder and to the Trustee and its successors and
assigns (a) the full and punctual payment of principal of, premium, if any, and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Issuer under
the Indenture and the Securities and (b) the full and punctual performance
within the grace period set forth in Section 6.1(d) or (e) of the Indenture, if
applicable, of all other obligations of the Issuer under the Indenture and the
Securities (all the foregoing being hereinafter collectively called the
"Obligations"). The Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
the Guarantor, and that the Guarantor will remain bound under this Article
Sixteen notwithstanding any extension or renewal of any Obligation.
The Guarantor waives presentation to, demand of payment from and
protest to the Issuer of any of the Obligations and also waives notice of
protest for nonpayment. The Guarantor waives notice of any default under the
Securities or the Obligations. The obligations of the Guarantor hereunder shall
not be affected by (a) the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any right or remedy against the Issuer or any
other person under the Indenture, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of the
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(e) the failure of any Holder or Trustee to exercise any right or remedy against
any other guarantor of the Obligations; or (f) any change in the ownership of
the Guarantor.
The Guarantor further agrees that its Guarantee herein constitutes a
guaranty of payment, performance and compliance when due, within applicable
grace periods (and not a guarantee of collection), and waives any right to
require that any resort be had by any Holder or the Trustee to any security held
for payment of the Obligations.
The obligations of the Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of the
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Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under the Indenture, the Securities or any other agreement,
by any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Guarantor or would otherwise
operate as a discharge of the Guarantor as a matter of law or equity.
The Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against the
Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal
of or interest on any Obligation when and as the same shall become due, whether
at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Obligation, the Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i)
the unpaid principal amount of such Obligations, (ii) accrued and unpaid
interest on such Obligations (but only to the extent not prohibited by law) and
(iii) all other monetary Obligations of the Issuer to the Holders and the
Trustee.
The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Obligations guaranteed
hereby until payment in full of all Obligations. The Guarantor further agrees
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of the
Guarantor's Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article Six, such Obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantor for the
purposes of this Section.
SECTION 16.2. Releases. (a) In the event that the indebtedness on
all Outstanding Securities shall have been deemed satisfied pursuant to Section
12.1 hereof, the Guarantor shall thereby become released from and relieved of
its Guarantee and all its other obligations hereunder and all provisions of this
Indenture referencing or relating to the Guarantor, the Guarantee and such other
obligations shall be of no further force or effect, and upon request of the
Guarantor, the Trustee shall execute and deliver to the Guarantor a satisfaction
and discharge with respect to the Guarantee and such other obligations and the
Trustee shall execute any other documents reasonably required to evidence the
release of the Guarantor from the Guarantee and such other obligations.
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(b) In the event that (i) there is effected a sale or other
disposition of all or substantially all the assets of the Issuer (as a result of
a sale or other disposition of assets or securities, a merger or consolidation
or otherwise), to an entity that is not immediately after giving effect to such
transaction an Affiliate of the Issuer or (ii) at any time the Guarantor ceases
to Beneficially Own Voting Securities carrying at least a majority of the Voting
Power of all the then outstanding Voting Securities of the Issuer (as a result
of a sale or other disposition of Voting Securities, a merger or consolidation
or otherwise), then the Guarantor shall thereupon become released and relieved
of its Guarantee and all its other obligations hereunder, and all provisions of
this Indenture referencing or relating to the Guarantor, the Guarantee or such
other obligations shall be of no further force or effect, and upon the request
of the Guarantor, the Trustee shall execute and deliver to the Guarantor a
satisfaction and discharge with respect to the Guarantee and such other
obligations and the Trustee shall execute any other documents reasonably
required to evidence the release of the Guarantor from the Guarantee and such
other obligations. For purposes of this Section only, (i) "Beneficially Own"
shall have the meaning specified in Rule 13d-3 under the Exchange Act, (ii)
"Voting Power" shall mean, as to any Voting Security at any time, the number of
votes the holder of such Voting Security is entitled to cast for directors of
the Issuer at any meeting of the holders of Voting Securities held at such time
for such purpose, (iii) "Voting Securities" shall mean the capital stock and any
other securities issued by the Issuer having the power to vote in the election
of directors of the Issuer, excluding any securities having such power only upon
the occurrence of a default or any other extraordinary contingency, and (iv)
"Affiliate" shall have the meaning specified in Rule 12b-2 under the Exchange
Act.
SECTION 16.3. Successors and Assigns. Except as provided in Section
16.2, this Article Sixteen shall be binding upon the Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 16.4. No Waiver, etc. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article Sixteen shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The rights, remedies and benefits of
the Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have under
this Article Sixteen at law, in equity, by statute or otherwise.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Effectiveness. This Supplement shall take effect as of
the date hereof.
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SECTION 2.02. Indenture Ratified. Except as herein expressly
provided, the Indenture is in all respects ratified and confirmed by the Issuer
and the Trustee and all the terms, provisions and conditions thereof are and
will remain in full force and effect.
SECTION 2.03. Execution by the Trustee. The Trustee has executed
this Supplement only upon the terms and conditions set forth in the Indenture.
Without limiting the generality of the foregoing, the Trustee shall not be
responsible for the correctness of the recitals herein contained, which shall be
taken as the statements of the Issuer and the Guarantor, and the Trustee makes
no representation and shall have no responsibility for, and in respect of, the
validity or sufficiency of this Supplement or the execution thereof by the
Issuer or the Guarantor.
SECTION 2.04. Governing Law. This Supplement shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 2.05. Execution in Counterparts. This Supplement may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First Indenture
Supplement to be duly executed, and their respective corporate seals to be
hereunto duly affixed and attested, all as of the day and year first above
written.
ITT CORPORATION
(formerly named ITT Destinations, Inc.)
[Seal]
By: /s/ Xxxxxxx X. Xxxxx
__________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxxx Xxxxxxxxx
___________________________________
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC., as Guarantor
[Seal]
By: /s/ Xxxx X. Xxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxx
Title: Sr. Vice President &
Treasurer
Attest: /s/ Xxxxxx Xxxxxx
___________________________________
THE BANK OF NEW YORK, as Trustee
(successor to The First National Bank
of Chicago)
[Seal]
By: /s/ Xxxxxx X. Xxxxxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
Attest: /s/ Xxxx Xxxx Xxxxxxx
___________________________________
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