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EXHIBIT 1
ITT DESTINATIONS, INC.
DEBT SECURITIES
Underwriting Agreement
October , 1995
To the Representative or
Representatives named in
Schedule A hereto of the
Underwriters named in
Schedule B hereto
Gentlemen:
The undersigned ITT Destinations, Inc., a Nevada
corporation (the "Company"), confirms its agreement with the several
underwriters named in Schedule B hereto (the "Underwriters"), as set forth
below. If the firm or firms named in Schedule B hereto include only the
firm or firms named in Schedule A hereto (the "Representatives"), then the
terms "Underwriters" and "Representatives", as used herein, shall each be
deemed to refer to such firm or firms.
The Company proposes to issue and sell debt securities of
the title and amount set forth in Schedule A hereto (the "Securities"), to
be issued under the indenture identified in Schedule A hereto (the
"Indenture") between the Company, the Guarantor (as defined), if any, and
the trustee named therein (the "Trustee"). If so indicated in Schedule A
hereto, the Securities shall be guaranteed (the "Guarantees") as to payment
of principal, premium (if any) and interest by ITT Corporation, a Delaware
corporation (the "Guarantor"), in the manner and with the effect set forth in
the Indenture. In the event that any such Guarantees are to be issued, the
term "Securities" shall be deemed to include the Guarantees. If so
indicated in Schedule A hereto, the Company also proposes to issue warrants
(the "Warrants") to purchase the aggregate principal amount indicated in
Schedule A hereto of the debt securities identified in Schedule A hereto
(the "Warrant Securities") to be issued pursuant to the provisions of the
Indenture. The Warrants, if any, are to be issued pursuant to the
provisions of the Warrant Agreement identified in Schedule A hereto (the
"Warrant Agreement") between the Company and the Warrant Agent named in
Schedule A hereto (the "Warrant Agent").
1. Representations and Warranties of the Company. The
Company and the Guarantor, if any, represent and warrant to, and jointly
and severally agree with, each Underwriter that:
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(a) A registration statement on Form S-3 (with the file
number set forth in Schedule A hereto), including a prospectus,
relating to the Securities has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, has been filed with the Commission
and has become effective. Such registration statement and
prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement; any such amendment or
supplement was so prepared and filed and any such amendment has
become effective. A prospectus supplement ("Prospectus
Supplement") relating to the Securities, the Warrants, if any, and
the Warrant Securities, if any, has been so prepared and will be
filed pursuant to Rule 424 under the Act. Copies of such
registration statement and prospectus, any such amendment or
supplement, the Prospectus Supplement and all documents
incorporated by reference therein which were filed with the
Commission on or prior to the date of this Agreement (including one
conformed copy of the registration statement and of each amendment
thereto for each of you and for counsel for the Underwriters) have
been delivered to you. Such registration statement and prospectus,
as amended or supplemented to the date of this Agreement and as
supplemented by the Prospectus Supplement are herein referred to as
the "Registration Statement" and the "Prospectus". Any reference
herein to the Registration Statement or Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein which were filed with the Commission on or prior to the
date of this Agreement, and any reference to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the
filing of any document with the Commission deemed to be
incorporated by reference therein after the date of this Agreement.
(b) The registration statement, at the time it became
effective, any post-effective amendment thereto, at the time it
became effective, the Registration Statement and the Prospectus, at
the date of this Agreement and at the Closing Date (as hereinafter
defined), and any amendment or supplement thereto, conformed or
will conform in all material respects to the requirements of the
Act, the Trust Indenture Act, and the Rules and Regulations; and no
such document included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; except that the foregoing shall not apply
to statements in or omissions from any such document in reliance
upon, and in conformity with, written information furnished to the
Company by you, or by any Underwriter through you, specifically for
use in the preparation thereof.
(c) The documents incorporated by reference in the
Registration Statement or Prospectus, when they became effective or
were filed with the Commission, as the case may be, under the
Securities Exchange Act of 1934 (the "Exchange Act"), conformed,
and any documents so filed and incorporated by reference after the
date of
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this Agreement will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act
and the Exchange Act, as applicable, and the Rules and Regulations
of the Commission thereunder.
(d) The Indenture, the Warrant Agreement, if any, the
Guarantees, if any, the Securities, the Warrants, if any, and the
Warrant Securities, if any, have been duly authorized; the Indenture has
been duly executed and delivered and duly qualified under the Trust
Indenture Act; and the Indenture, the Warrant Agreement, if any, when
duly executed and delivered, and the Securities, the Warrants, if any,
and the Warrant Securities, if any, when duly executed, authenticated,
issued and delivered as contemplated hereby, by the Indenture, by the
Delayed Delivery Contracts (as hereinafter defined), if any, and by the
Warrant Agreement, if any, constitute, in the case of the Indenture, and
will constitute, in all other cases, valid and legally binding
obligations of the Company or the Guarantor, as the case may be, in
accordance with their respective terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(e) Except as described in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in, or any adverse development which materially
affects, the respective business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a
whole or the Guarantor, if any, and its subsidiaries taken as a whole
from the dates as of which information is given in the Registration
Statement and the Prospectus.
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose reports appear in the
Guarantor's Proxy Statement for the Special Meeting of Stockholders
of September 21, 1995, which is incorporated in the Prospectus by
reference, are, and at the time of the issuance of said report
were, independent public accountants as required by the Act and the
Rules and Regulations.
(g) Each of the Company, its subsidiaries and the
Guarantor, if any, has been duly organized, is validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership of property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or
hold its properties and to conduct the business in which it is
engaged (subject, in the case of subsidiaries of the Company, and
in the case of the Company with reference to such qualification and
standing and such power and authority, to exceptions which in the
aggregate do not materially adversely affect the business or
operations of the Company and its subsidiaries taken as a whole and
subject, in the case of the Guarantor, if any, to exceptions which
in the aggregate do not materially adversely affect the business or
operations of the Guarantor and its subsidiaries taken as a whole).
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(h) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the knowledge of the
General Counsel of the Company, is there any action, suit or
proceeding threatened, which might reasonably be expected to result
in a material adverse change in the financial condition, results of
operations or business of the Company and its subsidiaries taken as
a whole or which is required to be disclosed in the Registration
Statement.
2. Purchase, Sale and Delivery of Securities. On the
basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule A hereto, the amount of Securities, and the
amount of Warrants, if any, set forth opposite the name of such Underwriter
in Schedule B hereto reduced by such Underwriter's portion of any Contract
Securities (as hereinafter defined), determined as provided below.
If so authorized in Schedule A hereto, the Underwriters
may solicit offers from institutional investors of the types set forth in
the Prospectus to purchase Securities and Warrants, if any, from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Such contracts shall be substantially in the form of Exhibit
I hereto but with such changes therein as the Company may approve.
Securities and Warrants, if any, to be purchased pursuant to Delayed
Delivery Contracts are herein called "Contract Securities". When Delayed
Delivery Contracts are authorized in Schedule A, the Company will enter
into a Delayed Delivery Contract in each case where a sale of Contract
Securities arranged through you has been approved by the Company but,
except as the Company may otherwise agree, such Delayed Delivery Contracts
must be for at least the minimum amount of Contract Securities set forth in
Schedule A hereto, and the aggregate amount of Contract Securities may not
exceed the amount set forth in such Schedule. The Company will advise you
not later than 10:00 a.m., New York City time, on the second full business
day preceding the Closing Date (or at such later time as you may otherwise
agree) of sales of the Contract Securities which have been so approved.
You and the other Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts.
The amount of Securities and Warrants, if any, to be
purchased by each Underwriter as set forth in Schedule B hereto shall be
reduced by an amount which shall bear the same proportion to the total
amount of Contract Securities as the amount of Securities and Warrants, if
any, set forth opposite the name of such Underwriter bears to the total
amount of Securities and Warrants, if any, set forth in Schedule B hereto,
except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company; provided,
however, that the total amount of Securities and Warrants, if any, to be
purchased by all Underwriters shall be the total amount of Securities and
Warrants, if any, set forth in Schedule B hereto less the aggregate amount
of Contract Securities.
The Securities and Warrants, if any, to be purchased by
the Underwriters will be delivered by the Company to you for the accounts
of the several Underwriters at the office
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specified in Schedule A hereto against payment of the purchase price
therefor, unless otherwise specified in Schedule A hereto, by certified or
official bank check or checks drawn on or by a bank in New York City
payable in next-day funds to the order of the Company at the office, on the
date and at the times specified in such Schedule A, or at such other time
not later than eight full business days thereafter, as you and the Company
determine, such time being herein referred to as the "Closing Date". Such
Securities and Warrants, if any, will be prepared in definitive form and in
such authorized denominations and registered in such names as you may
require upon at least two business days' prior notice to the Company and
the Guarantor, if any, and will be made available for checking and
packaging at the office at which they are to be delivered on the Closing
Date (or such other office as may be specified for that purpose in Schedule
A) at least one business day prior to the Closing Date.
It is understood that you, acting individually and not in
a representative capacity, may (but shall not be obligated to) make payment
to the Company on behalf of any other Underwriter for Securities and
Warrants, if any, to be purchased by such Underwriter. Any such payment by
you shall not relieve any such Underwriter of any of its obligations
hereunder.
The Company will pay to you on the Closing Date for the
accounts of the Underwriters any fee, commissions or other compensation
which is specified in Schedule A hereto. Such payment will be made by
certified or official bank check drawn on or by a bank in New York City
payable in next-day funds.
The Company shall not be obligated to deliver any
Securities and Warrants, if any, except upon payment for all Securities and
Warrants, if any, to be purchased pursuant to this Agreement as herein
provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Securities and Warrants, if any, which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities and Warrants, if any,
set forth in Schedule A hereto to be purchased by each remaining
non-defaulting Underwriter set forth therein bears to the aggregate
principal amount of Securities and Warrants, if any, set forth therein to
be purchased by all the remaining non-defaulting Underwriters; provided
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any Securities and Warrants, if any, if the aggregate principal
amount of Securities and Warrants, if any, which the defaulting Underwriter
or Underwriters agreed but failed to purchase exceeds 9.09% of the total
principal amount of Securities and Warrants, if any, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than
110% of the principal amount of Securities and Warrants, if any, set forth
in Schedule A hereto to be purchased by it. If either of the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion
as may be agreed upon among them, all the Securities and Warrants, if any.
If, pursuant to the previous sentence, the remaining Underwriters or other
underwriters satisfactory to the
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Representative do not elect to purchase the Securities and Warrants, if
any, which the defaulting Underwriter or Underwriters agreed but failed to
purchase, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses as set forth in Section
3(j) hereof.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused
by its default. If other underwriters are obligated or agree to purchase
the Securities and Warrants, if any, of a defaulting Underwriter, either
the Representative or the Company may postpone the Closing Date for up to
seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary
in the Registration Statement, any Prospectus or in any other document or
arrangement.
3. Covenants. The Company and, unless otherwise
specified, the Guarantor, if any, covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to
be filed pursuant to Rule 424 under the Act and will notify you
promptly of such filing. During the period in which a prospectus
relating to the Securities, Warrants, if any, and Warrant
Securities, if any, is required to be delivered under the Act, the
Company will notify you promptly of the time when any amendment to
the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by
the Commission for any amendment of or supplement to the
Registration Statement or Prospectus or for additional information;
it will prepare and file with the Commission, promptly upon your
request, any amendments or supplements to the Registration
Statement or Prospectus which, in your opinion, may be necessary or
advisable in connection with the distribution of the Securities and
Warrants, if any, by the Underwriters; it will file no amendment or
supplement to the Registration Statement or Prospectus (other than
any prospectus supplement relating to the offering of securities
other than the Securities, the Warrants, if any, and the Warrant
Securities, if any, registered under the Registration Statement or
any document required to be filed under the Exchange Act which upon
filing is deemed to be incorporated by reference therein) to which
you shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing; and it
will furnish to you at or prior to the filing thereof a copy of any
such prospectus supplement or any document which upon filing is
deemed to be incorporated by reference in the Registration
Statement or Prospectus.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of
the Securities, Warrants, if any, and Warrant Securities, if any,
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will
promptly use its best efforts to prevent
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the issuance of any stop order or to obtain its withdrawal if such
a stop order should be issued.
(c) Within the time during which a prospectus relating to
the Securities, Warrants, if any, and Warrant Securities, if any,
is required to be delivered under the Act, the Company will comply
as far as it is able with all requirements imposed upon it by the
Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Securities,
Warrants, if any, and Warrant Securities, if any, as contemplated
by the provisions hereof and the Prospectus. If during such period
any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary
to amend or supplement the Registration Statement or Prospectus to
comply with the Act, the Company will promptly notify you and will
amend or supplement the Registration Statement or Prospectus (at
the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will use its best efforts to qualify the
Securities, Warrants, if any, and Warrant Securities, if any, for
sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect
so long as required for the distribution of the Securities,
Warrants, if any, and Warrant Securities, if any, except that the
Company and the Guarantor, if any, shall not be required in
connection therewith to qualify, as a foreign corporation or to
execute a general consent to service of process in any state. The
Company will also arrange for the determination of the eligibility
for investment for the Securities, Warrants, if any, and Warrant
Securities, if any, under the laws of such jurisdictions as you
reasonably request.
(e) The Company will furnish to the Underwriters copies
of the Registration Statement and Prospectus (including all
documents incorporated by reference therein), and all amendments
and supplements to the Registration Statement or Prospectus which
are filed with the Commission during the period in which a
prospectus relating to the Securities, Warrants, if any, and
Warrant Securities, if any, is required to be delivered under the
Act (including all documents filed with the Commission during such
period which are deemed to be incorporated by reference therein),
in each case in such quantities as you may from time to time
reasonably request.
(f) So long as any of the Securities, and the Warrant
Securities, if any, are outstanding, the Company agrees to furnish
to you (i) as soon as available, copies of all financial reports to
the Company's security holders generally and all reports and
financial statements filed by or on behalf of the Company with the
Commission and the New York Stock Exchange and (ii) from time to
time such other information concerning the Company and the
Guarantor, if any, as you may reasonably request.
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(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company's current fiscal
quarter, an earnings statement (which need not be audited) covering
a 12-month period beginning after the date upon which the
Prospectus Supplement is filed pursuant to Rule 424 under the Act
which shall satisfy the provisions of Section 11(a) of the Act.
(h) The Company will apply the net proceeds of the sale
of the Securities, Warrants, if any, and Warrant Securities, if
any, as set forth in the Prospectus.
(i) The Company will not, without your consent, offer or
sell, or publicly announce its intention to offer or sell, any debt
securities denominated in U.S. dollars, except for the issuance of
(y) commercial paper or (z) bank borrowings in the ordinary course
of the Company's business, during the period beginning the date of
this Agreement and ending the later of the Closing Date or the date
on which any price restrictions on the sale of the Securities are
terminated, but in no event later than five business days after
the Closing Date.
(j) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is
terminated, will pay all expenses incident to the performance of
the Company's and the Guarantor's (if any) obligations hereunder,
will pay the expenses of printing all documents relating to the
offering, and will reimburse the Underwriters for any expenses
(including fees and disbursements of counsel) incurred by them in
connection with the matters referred to in Section 3(d) hereof and
the preparation of memoranda relating thereto, for any filing fee
of the New York Stock Exchange, Inc. relating to the Securities,
Warrants, if any, and Warrant Securities, if any, and for any fees
charged by investment rating agencies for rating the Securities and
the Warrant Securities, if any. If the sale of Securities and
Warrants, if any, provided for in this Agreement is not consummated
by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or
because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company is not fulfilled,
the Company will reimburse the Underwriters for all reasonable
out-of-pocket disbursements (including fees and disbursements of
counsel) incurred by the Underwriters in connection with their
preparing to market and marketing the Securities and Warrants, if
any, or in contemplation of performing their obligations hereunder;
provided that, except as provided in this subsection (j) and in
Section 7, the Underwriters shall pay their own costs and expenses,
including the fees and expenses of their counsel, any transfer
taxes on the Securities and Warrants, if any, which they may sell
and the expenses of advertising any offering of the Securities and
Warrants, if any, made by the Underwriters. The Company shall not
in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this
Agreement.
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4. Indemnification and Contribution. (a) The Company
and the Guarantor, if any, shall indemnify and hold harmless each
Underwriter and each person, if any, participating with the Underwriters in
the distribution of the Securities and Warrants, if any, who is an
"underwriter" within the meaning of Section 2(11) of the Act with respect
to the distribution of the Securities and Warrants, if any (the
"Participants"), and each person, if any, who controls any Underwriter
within the meaning of the Act or any Participant from and against any loss,
claim, damage or liability, joint or several, and any action in respect
thereof, to which that Underwriter, Participant or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectus, any document incorporated by
reference in any of the foregoing documents or the Registration Statement
or any Prospectus, as amended or supplemented, or arises out of, or is
based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter, Participant
and such controlling person, as incurred, for any legal and other expenses
reasonably incurred by that Underwriter, Participant or controlling person
in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Company and the
Guarantor, if any, shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any Prospectus or
any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter specifically for inclusion therein or was contained in that
part of the Registration Statement consisting of the Form T-1; and provided
further, that the indemnity agreement contained in this Section 4(a) with
respect to losses, claims, damages, liabilities or actions arising out of
or based upon any untrue statement or alleged untrue statement made in, or
omission or alleged omission from, any Prospectus shall not inure to the
benefit of any Underwriter, Participant or any person controlling such
Underwriter or Participant from whom the person asserting any such losses,
claims, damages, liabilities or action purchased the Securities with
respect to which such losses, claims, damages, liabilities or actions are
asserted, if the Underwriter or Participant failed to send or give a copy
of any Prospectus, as the same may be amended or supplemented, to that
person within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in any such Prospectus was corrected in an amended
or supplemented Prospectus, unless such failure resulted from
non-compliance by the Company with Section 3(e) hereof. For purposes of
the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated
therein by reference, and no Underwriter or Participant shall be obligated
to send or give any supplement or amendment to any document incorporated by
reference in any Prospectus to any person other than a person to whom such
Underwriter or Participant has delivered such incorporated documents in
response to a written request therefor. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise have to any
Underwriter, Participant or any controlling person.
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(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement, any
person who controls the Company within the meaning of the Act and
the Guarantor, if any, from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to
which the Company or any such director, officer, controlling person
or the Guarantor may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or any Prospectus or arises out of, or is based upon, the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the Statements
therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company and the Guarantor, if
any, through the Representative by or on behalf of such Underwriter
specifically for inclusion therein, and shall reimburse the Company
and the Guarantor, if any, for any legal and other expenses
reasonably incurred by the Company or any such director, officer,
controlling person or the Guarantor in investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have
to the Company, any of its directors, officers or controlling
persons or the Guarantor.
(c) Promptly after receipt by an indemnified party under
Section 4(a) or 4(b) above of notice of any claim or the
commencement of any action, the indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party
under this Section 4, notify the indemnifying party in writing of
the claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party except to
the extent the indemnifying party is prejudiced thereby. If any
such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and,
to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party; provided,
however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to
select separate counsel to represent such indemnified party in
connection with such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party
under this Section 4 for any legal or other expenses subsequently
incurred by such indemnified party in
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connection with the defense thereof (other than reasonable costs of
investigation) unless (i) the indemnified party shall have employed
such counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not, in connection with any one such action, or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses with respect to any
period during the pendency of such action or similar or related
actions of more than one separate firm of attorneys for all
indemnified parties so named, designated in writing by the
Representative if the indemnifying party is the Company or the
Guarantor or by the Company or the Guarantor if the indemnifying
party is an Underwriter, it being further understood, however, that
the firm of attorneys so designated may be changed from time to
time with respect to different periods during the pendency of such
action or similar or related actions), (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the
indemnifying party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party.
The indemnifying party shall not be liable for any settlement of
any action or claim effected without its consent, which consent
shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 4
shall for any reason be unavailable to an indemnified party under
Section 4(a) or 4(b) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid
or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Guarantor, if any, on the
one hand and the Underwriters and Participants on the other from
the offering of the Securities and Warrants, if any, or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Guarantor, if any, on the
one hand and the Underwriters and Participants on the other with
respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor, if any, on the
one hand and the Underwriters and Participants on the other with
respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Securities and Warrants, if any, (before deducting expenses)
received by the Company and the Guarantor, if any, bear to the
total underwriting discounts and commissions received by the
Underwriters and the Participants with respect to such offering, in
each case as set forth in the table on the cover page of the
Prospectus. The relative faults shall be determined by reference
to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material
12
12
fact relates to information supplied by the Company and the
Guarantor, if any, or the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and
the Guarantor, if any, and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section
4(d) were to be determined by pro rata allocation (even if the
Underwriters and Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 4(d) shall be deemed to include,
for purposes of this Section 4(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4(d), no Underwriter
shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities and Warrants, if
any, underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 4(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the
statements, if any, with respect to the public offering of the
Securities set forth under the caption "Underwriting" in the
Prospectus Supplement are correct and were furnished in writing to
the Company by the Representative by or on behalf of the several
Underwriters for inclusion in the Registration Statement and the
Prospectus.
(f) The indemnity agreements contained in this Section 4
and the representations, warranties and agreements of the Company
in Section 1 and Section 3 shall survive the delivery of the
Securities and Warrants, if any, and shall remain in full force and
effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of any indemnified party.
5. Conditions Subsequent. The obligations of the
Underwriters under this Agreement may be terminated by the Representative,
in its absolute discretion, by notice given to and received by the Company
and the Guarantor, if any, prior to delivery of and payment for the
Securities and Warrants, if any, if, on or after the date hereof there
shall have occurred any of the following: (a) trading in securities
generally on the New York Stock Exchange is suspended or materially
limited, or minimum prices are established on the New York Stock Exchange,
or (b) a banking moratorium is declared by either Federal or New York State
authorities, or (c) the outbreak or material escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if
13
13
the effect of any such event specified in this clause (c) in the judgment
of the Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities and Warrants, if any,
on the terms and in the manner contemplated by the Prospectus.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Securities and
Warrants, if any, as provided herein shall be subject to the accuracy, as
of the date hereof and the Closing Date (as if made at the Closing Date),
of the representations and warranties of the Company and the Guarantor, if
any, herein, to the performance by the Company and the Guarantor, if any,
of their respective obligations hereunder, and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company or the
Guarantor, if any, that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue
statement of fact which in your opinion is material, or omits to
state a fact which in your opinion is material and is required to
be stated therein or is necessary to make the statements therein
not misleading.
(c) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have
been any material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, taken as a whole, or of the Guarantor, if any, and
its subsidiaries, taken as a whole, or any material adverse change,
or any development involving a prospective material adverse change
in the condition (financial or other), business, prospects, net
worth or results of operations of the Company and its subsidiaries,
taken as a whole, or of the Guarantor, if any, and its
subsidiaries, taken as a whole, or any downgrading in the rating
accorded any securities of the Company or of the Guarantor, if any,
by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard and Poor's Ratings
Group which, in your judgment, makes it impractical or inadvisable
to offer or deliver the Securities on the terms and in the manner
contemplated in the Prospectus.
(d) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as counsel for the Company, or such
other counsel for the Company as shall be satisfactory to you,
shall have furnished to you his opinion, dated the Closing Date, to
the effect that:
(i) The Company has been duly incorporated and is
a validly existing corporation in good standing under the
laws of Nevada, with corporate power
14
14
and authority to own its properties and conduct its
business as described in the Prospectus; and the Company
is duly qualified and is in good standing as a foreign
corporation in each country or jurisdiction wherein the
character of property owned or held under lease by it, or
the nature of the business transacted by it makes such
qualification necessary (except where the failure to so
qualify would not have a material adverse effect upon the
Company and its subsidiaries taken as a whole);
(ii) The Indenture and the Warrant Agreement, if any,
have been duly authorized, executed and delivered, and the
Indenture has been qualified under the Trust Indenture Act; the
Indenture and the Warrant Agreement, if any, constitute valid
and legally binding instruments in accordance with their
respective terms; the Securities, the Warrants, if any, and the
Warrant Securities, if any, have been duly authorized, and the
Securities and Warrants, if any, delivered on the Closing Date
have been duly executed, authenticated, issued and delivered;
the Securities and Warrants, if any, delivered on the Closing
Date constitute, any Contract Securities when executed,
authenticated, issued and delivered in accordance with the
Delayed Delivery Contracts, if any, the Warrant Agreement, if
any, and the Indenture will constitute, and the Warrant
Securities, if any, when executed, authenticated, issued and
delivered pursuant to the Warrant Agreement, if any, and the
Indenture will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their
respective terms and the terms of the Indenture and the Warrant
Agreement, if any, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities, Warrants, if
any, and Warrant Securities, if any, conform to the description
thereof in the Prospectus;
(iii) The Registration Statement has become
effective under the Act and to the best knowledge of such
counsel no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge
of such counsel, threatened by the Commission;
(iv) Each part of the Registration Statement, when
such part became effective, and the Registration Statement
and the Prospectus, and any amendment or supplement
thereto, complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations; such counsel has no reason to
believe that either any part of the Registration Statement
when such part became effective, or the Registration
Statement and the Prospectus or any amendment or
supplement thereto contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and the documents incorporated by
reference in the Registration Statement or Prospectus,
when they became effective under the
15
15
Act or were filed with the Commission under the Exchange
Act, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; it being understood that
such counsel need express no opinion as to the financial
statements or other financial or statistical data included
in any of the documents mentioned in this clause;
(v) The descriptions in the Registration Statement
and Prospectus of legal and governmental proceedings,
contracts and other documents are accurate and fairly
present the information required to be shown; and such
counsel does not know of any statutes or legal or
governmental proceedings required to be described in the
Prospectus which are not described as required, or of any
contracts or documents of a character required to be
described in the Registration Statement or Prospectus (or
then required to be filed under the Exchange Act if upon
such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
(vi) To the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or
by-laws, or in default under any material agreement,
indenture or instrument;
(vii) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company; the performance thereof and the
consummation of the transactions therein contemplated
(including, without limitation, the issuance of the
Warrant Securities, if any, upon the exercise of the
Warrants, if any) will not result in a breach or violation
of any of the terms and provisions of, or constitute a
default under, any statute, any agreement or instrument
known to such counsel to which the Company is a party or
by which it is bound or to which any of the property of
the Company is subject, the Company's charter or by-laws,
or any order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Agreement and any Delayed Delivery
Contracts in connection with the issuance or sale of the
Securities (including the Contract Securities, if any),
Warrants, if any, or Warrant Securities, if any, by the
Company, except such as have been obtained under the Act
and the Trust Indenture Act and such as may be required
under state securities laws in connection with the sale of
the Securities, Warrants, if any, and Warrant Securities,
if any; and
16
16
(viii) The Company is not an "investment company"
within the meaning of that term as defined in the
Investment Company Act of 1940, as amended, and is not
subject to regulation under said Act.
In rendering the opinion set forth in clause (i),
counsel for the Company may rely, as to matters of Nevada law, upon
the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or such other counsel as may
be satisfactory to you.
(e) In the event there is a Guarantee, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Executive Vice President and General Counsel of the Guarantor, or
such other counsel for the Guarantor as shall be satisfactory to
you, shall have furnished to you his opinion, dated the Closing
Date, to the effect that:
(i) The Guarantor has been duly incorporated and
is a validly existing corporation in good standing under
the laws of its state of incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus; and the Guarantor
is duly qualified and is in good standing as a foreign
corporation in each country or jurisdiction wherein the
character of property owned or held under lease by it, or
the nature of the business transacted by it makes such
qualification necessary (except where the failure to so
qualify would not have a material adverse effect upon the
Guarantor and its subsidiaries taken as a whole); and
(ii) The Indenture has been duly authorized,
executed and delivered by the Guarantor; the Indenture and
the Guarantee contained therein constitute the valid and
legally binding obligations of the Guarantor, enforceable
against the Guarantor in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles.
(f) You shall have received from the Company a
certificate, dated the Closing Date, of its Chairman or its Vice
Chairman or its President or a Vice President stating that:
(i) The representations, warranties and agreements
of the Company in Section 1 are true and correct as of the
Closing Date; the Company has complied with all its
agreements contained herein; and the conditions set forth
in Section 6(a) have been fulfilled; and
(ii) he has carefully examined the Registration
Statement and the Prospectus and, in such officer's
opinion, with respect to the Company (A) as of the date of
the Prospectus, the Registration Statement and the
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the date
of the Prospectus, no
17
17
event has occurred which should have been set forth in a
supplement to or amendment of the Prospectus which has not
been set forth in such a supplement or amendment.
(g) In the event there is a Guarantee, you shall have
received from the Guarantor a certificate, dated the Closing Date,
of its Chairman or its Vice Chairman or its President or a Vice
President stating that:
(i) The representations, warranties and agreements
of the Guarantor in Section 1 are true and correct as of
the Closing Date; the Guarantor has complied with all its
agreements contained herein; and
(ii) he has carefully examined the Registration
Statement and the Prospectus and, in such officer's
opinion, with respect to the Guarantor (A) as of the date
of the Prospectus, the Registration Statement and the
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the date
of the Prospectus, no event has occurred which should have
been set forth in a supplement to or amendment of the
Prospectus which has not been set forth in such a
supplement or amendment.
(h) You shall have received from Cravath, Swaine & ▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the
Securities, the Warrants, if any, the Warrant Securities, if any,
the Indenture, the Warrant Agreement, if any, the Registration
Statement, the Prospectus and other related matters as you may
reasonably require, and the Company and the Guarantor, if any,
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(i) You shall have received on the Closing Date a letter
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Underwriters and dated
the Closing Date, substantially to the effect set forth in Exhibit
II hereto appropriately updated, with respect to the Registration
Statement and Prospectus at the time of this Agreement and
confirming that they are independent public accountants within the
meaning of the Rules and Regulations.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters.
7. Expense Reimbursement. If this Agreement shall be
canceled or terminated by the Underwriters on any of the grounds referred
to or specified in Section 6
18
18
hereof, or because of any failure or refusal on the part of the Company or
the Guarantor, if any, to comply with any of the terms or to fulfill any of
the conditions of this Agreement, the Company will reimburse the
Underwriters severally for all their out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by them in
connection with the subject matter of this Agreement.
8. Notices. All notices or communications hereunder
shall be in writing and if sent to you shall be mailed, delivered or
telegraphed and confirmed to you at your address set forth for that purpose
in Schedule A hereto, or if sent to the Company or the Guarantor, if any,
shall be mailed, delivered or telegraphed and confirmed to the Company or
the Guarantor, if any, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Secretary. Notices to any Underwriter
pursuant hereto shall be mailed, delivered or telegraphed and confirmed to
such Underwriter's address furnished to the Company in writing for the
purpose of communications hereunder. Any party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
9. Parties. This Agreement shall inure to the benefit of
and be binding upon the Company, the Guarantor, if any, and the
Underwriters and their respective successors and the controlling persons,
officers and directors referred to in Section 4 and no other person will
have any right or obligation hereunder.
In all dealings with the Company under this Agreement, you
shall act on behalf of each of the several Underwriters, and any action
under this Agreement taken by you or by any one of you designated in
Schedule A hereto will be binding upon all the Underwriters.
10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. Counterparts. This Agreement may be executed by one
or more of you in one or more counterparts, each of which shall constitute
an original and all of which taken together shall constitute one and the
same Agreement.
If the foregoing correctly sets forth our Agreement,
please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company, the
Guarantor, if any, and the several Underwriters.
19
19
Alternatively, the execution of this Agreement by the
Company and, the Guarantor, if any, and its acceptance by or on behalf of
the Underwriters may be evidenced by an exchange of telegraphic or other
written communications.
ITT DESTINATIONS, INC.,
by -
----------------------------------
Senior Vice President
and Treasurer
[GUARANTOR],
by -
----------------------------------
Senior Vice President
and Treasurer
ACCEPTED at New York, New York
as of the date first above
written on behalf of ourselves
and the other Underwriters, if
any, named in Schedule B hereto.
[ - ]
By -
--------------------------------------
Title: -
20
SCHEDULE A
Underwriting Agreement dated -
Registration Statement No. 33- -
Representative: -
Title of Securities: -
Amount of Securities: $ -
Maturity Date: -
Interest Rate: -
Redemption: -
Indenture: Dated - , with -
Purchase Price: -
Depository: -
Guarantor: -
Title of Warrant Securities: -
Amount of Warrant Securities: -
Maturity Date: -
Interest Rate: -
Title of Warrant Agreement: -
Warrant Agent: -
Number of Warrants: - per each $ - principal amount of
Warrant Securities
Exercise Period: -
Exercise Price: -
Warrant Securities accrue interest from - 19 -
Delayed Delivery:
Fee: -
Minimum principal amount of each Contract: -
21
2
Maximum aggregate principal amount of all Contracts: -
Closing:
Office for delivery of Securities, and Warrants, if any: -
Office for payment for Securities, and Warrants, if any: -
Date and time of Closing: -
Office for Checking Securities, and Warrants, if any: -
Underwriting commissions or other compensation: -
Underwriter designated pursuant to Section 9: -
Address for notices per Section 8: -
22
SCHEDULE B
Principal
Amount of
Securities,
and Warrants,
if any, to be
Underwriter Purchased
----------- --------------
- $ -
--------------
Total . . . . . . . . . . . . . . $ -
==============
23
EXHIBIT I
ITT DESTINATIONS, INC.
-
-------------------------------
[Insert specific title of securities 1/ ]
DELAYED DELIVERY CONTRACT
-
----------------------------------
[Insert date of initial offering]
ITT Destinations, Inc.
1330 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from ITT
Destinations, Inc., a Nevada corporation (the "Company"), and the Company
hereby agrees to sell to the undersigned, [If one delayed closing, insert--as
of the date hereof, for delivery on - , 19 ("Delivery Date")]
[$] - principal amount
of the Company's [title of Securities and related Warrants, if any] (the
"Securities"), offered by the Company's Prospectus relating thereto, receipt of
a copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof plus accrued interest, if any, and on the further
terms and conditions set forth in this contract.
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Principal
Delivery Date Amount
------------- ---------
- $ -
- $ -
--------------------
1/ To be completed when the Underwriting Agreement is executed by the parties
thereto.
24
2
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities which the undersigned has agreed to
purchase for delivery on [the] [each] Delivery Date shall be made to
the Company or its order by certified or official bank check in New York
Clearing House funds at the office of - at - .m., - time, on
such Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned for delivery on such Delivery Date in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five business days prior to such Delivery Date. If no
designation is received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal
amount of Securities to be purchased by the undersigned on such Delivery Date.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on [the] [each] Delivery Date will be subject
only to the conditions that (1) investment in the Securities shall not at such
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject, which investment the undersigned
represents is not prohibited on the date hereof, and (2) the Company shall have
delivered to the Underwriters the principal amount of the Securities to be
purchased by them pursuant to the Underwriting Agreement referred to in the
Prospectus mentioned above and received payment therefor.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this is in the Company's
sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by, and construed in
accordance with, the laws of the state of New York.
Very truly yours,
-
--------------------------------------
(Name of Purchaser)
-
--------------------------------------
-
--------------------------------------
(Title of Signatory)
25
EXHIBIT V
3
-
--------------------------------------
-
--------------------------------------
(Address of Purchaser)
Accepted as of the date above.
ITT DESTINATIONS, INC.,
-
-------------------------------------
Title: -
