<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 20, 1995
REGISTRATION NO. 33-
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------
<TABLE>
<S> <C> <C>
THE WALT DISNEY COMPANY DELAWARE 95-0684440
DC HOLDCO, INC. DELAWARE 95-4545390
(Exact name of registrant (State or other jurisdiction of (I.R.S. employer
as specified in its charter) incorporation or organization) identification number)
</TABLE>
<TABLE>
<S> <C>
DAVID K. THOMPSON
SENIOR VICE PRESIDENT -- ASSISTANT GENERAL COUNSEL
500 SOUTH BUENA VISTA STREET THE WALT DISNEY COMPANY
BURBANK, CALIFORNIA 91521 500 SOUTH BUENA VISTA STREET
(818) 560-1000 BURBANK, CALIFORNIA 91521
(Address, including zip code and telephone number, (818) 560-1000
including area code, of registrant's principal executive offices) (Name, address, including zip code and telephone number,
including area code, of agent for service)
</TABLE>
COPY TO:
Thomas C. Janson, Jr.
Skadden, Arps, Slate, Meagher & Flom
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
(213) 687-5000
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
------------------------------
Pursuant to Rule 429, the Prospectus included in this Registration Statement
also relates to securities of The Walt Disney Company registered under
Registration Statement No. 33-49891.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED (1) UNIT (2)(3) PRICE (1)(2)(3) (4)
<S> <C> <C> <C> <C>
Debt Securities of DC Holdco, Inc. ("New Disney")
(5)..............................................
Preferred Stock of New Disney (5).................
Depositary Shares of New Disney (6)...............
Warrants of New Disney (5)........................
Guarantees of New Disney Debt Securities by The
Walt Disney Company ("Disney") (7)...............
Guarantees of New Disney Preferred Stock by Disney
(7)..............................................
Total (8)....................................... $5,000,000,000 100% $5,000,000,000 $1,559,207
<FN>
(1) In United States dollars or the equivalent thereof in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units). The aggregate initial
offering price of the above-referenced securities (collectively, the
"Securities") registered hereby will not exceed $5,000,000,000. Such amount
represents the principal amount of any Debt Securities issued at their
principal amount, the issue price rather than the principal amount of any
Debt Securities issued at an original issue discount, the liquidation
preference (or, if different, the issue price) of any Preferred Stock and
the issue price of any Warrants (but not the exercise price of any
Securities issuable upon the exercise of such Warrants).
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(3) No separate consideration will be received for (a) any Depositary Shares
representing shares of Preferred Stock of New Disney, (b) any Debt
Securities or Preferred Stock that may be issuable upon conversion of or in
exchange for convertible or exchangeable Debt Securities or Preferred
Stock, or (c) the Guarantees by Disney of New Disney Debt Securities and
New Disney Preferred Stock (including any securities issuable upon stock
splits and similar transactions pursuant to Rule 416).
(4) Calculated pursuant to Rule 457, based upon bona fide estimate as of the
date hereof of the maximum offering price. See Note (8).
(5) Includes such indeterminate principal amount of Debt Securities of New
Disney, such indeterminate number of shares of Preferred Stock of New
Disney, such indeterminate number of Warrants to purchase Debt Securities
and Preferred Stock of New Disney and such indeterminate principal amount
of Debt Securities, or number of shares of Preferred Stock, of New Disney,
as may be issued upon conversion of, or in exchange for, or upon exercise
of, convertible or exchangeable Debt Securities or Preferred Stock or
Warrants of New Disney (including any securities issuable upon stock splits
and similar transactions pursuant to Rule 416).
(6) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
New Disney elects to offer to the public fractional interests in shares of
the Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons acquiring such fractional interest and the
shares of Preferred Stock will be issued to a Depositary under a Deposit
Agreement.
(7) Only $4,521,700,000 of guarantees by Disney of New Disney Debt Securities
and Preferred Stock are being registered hereby.
(8) The $5,000,000,000 of Securities offered hereby is comprised of
$478,300,000 of securities registered in Registration Statement No.
33-49891 filed August 3, 1993 and included herein under Rule 429 and
$4,521,700,000 registered hereby. A filing fee of $149,469 related to the
securities offered hereby was paid in connection with Registration
Statement No. 33-49891. Accordingly, the filing fee paid herewith is 1/29%
of $4,521,700,000.
</TABLE>
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 20, 1995
PROSPECTUS
THE WALT DISNEY COMPANY
DC HOLDCO, INC.
SECURITIES
------------------
This Prospectus relates to the offering of securities described herein of
The Walt Disney Company, a Delaware corporation ("Disney"), and of DC Holdco,
Inc., a Delaware corporation ("New Disney"). New Disney is currently a wholly
owned subsidiary of Disney and, upon completion of the acquisition (the
"Acquisition") by Disney of Capital Cities/ABC, Inc. ("Capital Cities"), New
Disney will become the parent corporation of Disney and Capital Cities and be
renamed "The Walt Disney Company." See "The Acquisition." New Disney may offer
from time to time (i) debt securities (the "Debt Securities"), which may be any
of senior debt securities ("Senior Debt Securities"), senior subordinated debt
securities ("Senior Subordinated Debt Securities") or subordinated debt
securities ("Subordinated Debt Securities"), in each case consisting of
debentures, notes and/or other unsecured evidences of indebtedness, (ii) shares
of preferred stock (the "Preferred Stock"), which may be issued in the form of
depositary receipts (the "Depositary Shares"), each of which will represent a
fraction of a share of Preferred Stock, and (iii) warrants to purchase Debt
Securities or Preferred Stock as shall be designated by New Disney at the time
of the offering (the "Warrants"). The Debt Securities, the Preferred Stock, the
Depositary Shares, the Warrants and any guarantees of the foregoing by Disney
are collectively referred to as the "Securities" and will have an aggregate
initial offering price of up to $5,000,000,000 or the equivalent thereof in U.S.
dollars if any Securities are denominated in a currency other than U.S. dollars
or in currency units. If any Securities are issued by New Disney prior to the
consummation of the Acquisition, then the payment of principal, interest and
dividends thereon, together with any amounts payable upon liquidation or upon
redemption of such Securities, will be guaranteed by Disney to the extent and on
the terms described herein and in the accompanying Prospectus Supplement. Upon
consummation of the Acquisition, any such guarantees by Disney will be released.
The Securities may be offered separately or together (in any combination) and as
separate series, in any case in amounts, at prices and on terms to be determined
at the time of sale.
The form in which the Securities are to be issued, their specific
designation, aggregate principal amount or aggregate initial offering price,
maturity, if any, rate and times of payment of interest or dividends, if any,
redemption, conversion, exchange and sinking fund terms, if any, voting or other
rights, if any, exercise price and detachability, if any, and other specific
terms will be set forth in a Prospectus Supplement (including any related terms
sheet) relating to such Securities (the "Prospectus Supplement"), together with
the terms of offering of such Securities. If so specified in the applicable
Prospectus Supplement, Debt Securities of a series may be issued in whole or in
part in the form of one or more temporary or permanent global securities. The
Prospectus Supplement will also contain information, as applicable, about
certain material United States Federal income tax considerations relating to the
particular Securities offered thereby. The Prospectus Supplement will also
contain information, where applicable, as to any listing on a national
securities exchange of the Securities covered by such Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Securities may be sold directly, through agents designated from time to
time or to or through underwriters or dealers. See "Plan of Distribution." If
any agents of an issuer or any underwriters are involved in the sale of any
Securities in respect of which this Prospectus is being delivered, the names of
such agents or underwriters and any applicable commissions or discounts will be
set forth in a Prospectus Supplement. The net proceeds to the applicable
issuer(s) from such sale also will be set forth in a Prospectus Supplement.
------------------------
, 1995
<PAGE>
AVAILABLE INFORMATION
Disney and Capital Cities are each subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, file reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New
York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Such reports and other information concerning
Disney and Capital Cities may also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005 and the Pacific Stock
Exchange, 115 Sansome Street, 2nd Floor, San Francisco, California 94104.
Information set forth herein relating to Capital Cities is derived entirely from
public filings made by Capital Cities and is being provided in contemplation of
the Acquisition. Consummation of the Acquisition is subject to a number of
important contingencies, and no assurances can be given that it will occur. An
investment in the Securities prior to the consummation of the Acquisition should
not be made in reliance upon the Acquisition occurring. See "The Acquisition."
If the Acquisition is consummated, Disney and Capital Cities intend to terminate
or suspend, to the extent permitted by applicable law, their reporting
obligations under the Exchange Act and, accordingly, may no longer file reports
or other information with the Commission. Instead, following the Acquisition,
New Disney will become subject to the informational requirements under the
Exchange Act and information would be provided, to the extent required, in
filings made by New Disney thereunder.
Disney and New Disney (collectively, the "Issuers") have filed with the
Commission in Washington, D.C. a registration statement on Form S-3 (including
all amendments thereto, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Securities
offered hereby. As permitted by the rules and regulations of the Commission,
this Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto. Such additional
information is available for inspection and copying at the offices of the
Commission. Statements contained in this Prospectus, in any Prospectus
Supplement or in any document incorporated by reference herein or therein as to
the contents of any contract or other document referred to herein or therein are
not necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to, or incorporated by
reference in, the Registration Statement, each such statement being qualified in
all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by Disney (File No. 1-4083) with
the Commission under the Exchange Act are incorporated herein by reference:
(a) Disney's Annual Report on Form 10-K for the fiscal year ended
September 30, 1994 (the "Disney Form 10-K");
(b) Disney's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1994, March 31, 1995 and June 30, 1995 (the "Disney Form
10-Qs"); and
(c) Disney's Current Reports on Form 8-K, dated July 31, 1995 and
September , 1995 (collectively with the Disney Form 10-K and the Disney
Form 10-Qs, the "Disney Reports").
The following documents previously filed by Capital Cities (File No. 1-4278)
with the Commission under the Exchange Act are incorporated herein by reference:
(a) Capital Cities' Annual Report on Form 10-K for the year ended
December 31, 1994 (the "Capital Cities Form 10-K");
2
<PAGE>
(b) Capital Cities' Quarterly Reports on Form 10-Q for the quarters
ended April 2, 1995 and July 2, 1995 (the "Capital Cities Form 10-Qs"); and
(c) Capital Cities' Current Reports on Form 8-K, dated July 31, 1995 and
September , 1995 (collectively with the Capital Cities Form 10-K and the
Capital Cities Form 10-Qs, the "Capital Cities Reports").
The Joint Proxy Statement/Prospectus of Disney and Capital Cities,
previously filed with the Commission under the Exchange Act, is also
incorporated herein by reference.
All documents filed by Disney or Capital Cities pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Securities made hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents.
If the Acquisition is consummated, Disney and Capital Cities intend to
terminate or suspend, to the extent permitted by applicable law, their reporting
obligations under the Exchange Act and, accordingly, may no longer file reports
or other information with the Commission. Instead, following the Acquisition,
New Disney will become subject to the informational requirements under the
Exchange Act and information would be provided, to the extent required, in
filings made by New Disney thereunder. Accordingly, all documents filed by New
Disney, pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act from
and after the consummation of the Acquisition, and prior to the termination of
the offering of the Securities made hereby, shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document that is or is deemed to be incorporated by
reference herein) modifies or supersedes such previous statement. Any statement
so modified or superseded shall not be deemed to constitute a part hereof except
as so modified or superseded.
Disney or, after the consummation of the Acquisition, New Disney will
provide without charge to each person to whom a copy of this Prospectus has been
delivered, on the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated by
reference in this Prospectus other than exhibits to such documents, unless such
exhibits are also specifically incorporated by reference herein. Requests for
such copies should be directed to The Walt Disney Company, 500 South Buena Vista
Street, Burbank, California 91521, Attention: Corporate Secretary; telephone
number (818) 560-1000.
------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars" or "U.S.$").
------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY ANY OF THE
ISSUERS OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THEIR RESPECTIVE DATES.
3
<PAGE>
BUSINESS OF DISNEY
Disney is a diversified international entertainment company with operations
in three business segments: Filmed Entertainment, Theme Parks and Resorts, and
Consumer Products. Disney employs approximately 69,000 people.
In its Filmed Entertainment business segment, Disney produces and acquires
live-action and animated motion pictures for distribution to the theatrical,
television and home video markets. Disney also produces original television
programming for the network and first-run syndication markets. In addition,
Disney provides programming for and operates The Disney Channel, a pay
television programming service, and KCAL-TV, a Los Angeles, California
television station. The success of all of Disney's theatrical motion pictures
and television programming is heavily dependent upon public taste, which is
unpredictable and subject to change without warning. In addition, filmed
entertainment operating results fluctuate due to the timing of theatrical and
home video releases. Release dates are determined by several factors, including
timing of vacation and holiday periods and competition in the market.
The Theme Parks and Resorts business segment includes Disney's operation of
the Walt Disney World-Registered Trademark- destination resort in Florida and
the Disneyland Park-Registered Trademark- and the Disneyland Hotel in
California. In addition, Disney earns royalties on revenues generated by the
Tokyo Disneyland theme park. All of the theme parks and most of the associated
resort facilities are operated on a year-round basis. Historically, the theme
parks and resorts business experiences fluctuations in park attendance and
resort occupancy resulting from the nature of vacation travel. Peak attendance
and resort occupancy generally occur during the summer months when school
vacations occur and during early-winter and spring holiday periods.
Disney's Consumer Products business segment involves the licensing of the
name "Walt Disney," as well as Disney's characters, visual and literary
properties and songs and music, to various consumer manufacturers, retailers,
show promoters and publishers throughout the world. Disney also engages in
direct retail distribution through The Disney Stores and consumer catalogs, and
is a publisher of books, magazines and comics in the United States and Europe.
In addition, Disney produces audio and computer software for all markets, as
well as film and video products for the educational marketplace. Operating
results for the consumer products business are influenced by seasonal consumer
purchasing behavior and by the timing of animated theatrical releases.
Disney is a Delaware corporation organized in 1986 as a successor to a
California corporation organized in 1938. As used herein, unless otherwise
specified or unless the context otherwise requires, the term "Disney" includes
The Walt Disney Company and its subsidiaries. Disney's principal executive
offices are located at 500 South Buena Vista Street, Burbank, California 91521,
and its telephone number is (818) 560-1000.
BUSINESS OF NEW DISNEY
New Disney, a wholly owned subsidiary of Disney, has not conducted any
substantial business activities to date, other than those incident to its
formation, its execution of the Merger Agreements (as defined below), its
participation in the preparation of the Registration Statement and this
Prospectus and other actions taken in contemplation of the consummation of the
Acquisition or in connection herewith. Immediately following the consummation of
the Acquisition, New Disney will become a holding company for Disney and Capital
Cities and their respective subsidiaries. Accordingly, the business of New
Disney, through its wholly owned subsidiaries Disney and Capital Cities and
their respective subsidiaries, will be the business currently conducted by
Disney and Capital Cities and their respective subsidiaries. Consummation of the
Acquisition is subject to a number of important contingencies, and no assurances
can be given that it will occur. An investment in the Securities prior to the
consummation of the Acquisition should not be made in reliance upon the
Acquisition occurring. See "The Acquisition," "Business of Disney" and "Business
of Capital Cities."
4
<PAGE>
New Disney is a Delaware corporation organized in 1995. New Disney's
principal executive offices are located at 500 South Buena Vista Street,
Burbank, California 91521, and its telephone number is (818) 560-1000.
THE ACQUISITION
Disney and Capital Cities have entered into an Amended and Restated
Agreement and Plan of Reorganization, dated as of July 31, 1995 (the
"Reorganization Agreement"), which, together with related merger agreements (the
"Merger Agreements"), provides for the merger of DCA Merger Corp., a Delaware
corporation and a wholly owned subsidiary of New Disney (the "Disney Merger"),
with and into Disney and the merger of DCB Merger Corp., a Delaware corporation
and a wholly owned subsidiary of New Disney, with and into Capital Cities (the
"Capital Cities Merger"). The reorganization of the business of Disney and
Capital Cities contemplated by the Reorganization Agreement and the Merger
Agreements is referred to herein as the "Acquisition." As a result of the
Acquisition, each of Disney and Capital Cities will become a wholly owned
subsidiary of New Disney. Following the consummation of the Acquisition, New
Disney will be renamed "The Walt Disney Company." Upon consummation of the
Capital Cities Merger, each Outstanding Capital Cities Share (as defined below)
will be converted into cash, shares of common stock, par value $0.01 per share,
of New Disney ("New Disney Common Stock") or a combination of both cash and New
Disney Common Stock. Each Capital Cities shareholder will have the opportunity
to indicate, on a form of election (the "Election Form"), whether such
shareholder wishes to make a Standard Election, a Stock Election or a Cash
Election (as such terms are defined below) for each share of common stock, par
value $0.10 per share, of Capital Cities ("Capital Cities Common Stock") held by
such shareholder. The allocation of cash and/or shares of New Disney Common
Stock that a shareholder of Capital Cities may receive will depend on (i) the
stated preferences of the Capital Cities shareholders on the Election Forms and
(ii) the proration procedures to be applied if the Requested Stock Amount
exceeds the Stock Component or the Requested Cash Amount exceeds the Cash
Component (as such terms are defined below).
Shareholders of Capital Cities who make an effective "Standard Election"
will receive, for each share of Capital Cities Common Stock for which such
election is made, one share of New Disney Common Stock plus $65 in cash
(collectively, the "Standard Consideration"). The number of shares of New Disney
Common Stock and the amount of cash to be distributed to Capital Cities
shareholders who make an effective Standard Election will not be affected in any
way by the proration procedures described below. Shareholders of Capital Cities
who make an effective "Stock Election" will receive (subject to the proration
procedures described below), for each share of Capital Cities Common Stock for
which such election is made, (i) one share of New Disney Common Stock plus (ii)
a number of shares of New Disney Common Stock equal to a fraction, the numerator
of which is $65 and the denominator of which is the Disney Common Stock Price
(collectively, the "Stock Consideration"). The "Disney Common Stock Price" is an
amount equal to the average of the closing sales prices of Disney Common Stock
on the New York Stock Exchange Composite Tape on each of the ten consecutive
trading days immediately preceding the second trading day prior to the Effective
Time. "Effective Time" means the time and date which is the later of (a) the
date and time of the filing of the certificate of merger relating to the Disney
Merger with the Secretary of State of the State of Delaware (or such other date
and time as may be specified in such certificate as permitted by Delaware law)
and (b) the date and time of the filing of a certificate of merger by the
Department of State of the State of New York with respect to the Capital Cities
Merger (or such other date and time as may be specified in such certificate as
permitted by New York law). Shareholders of Capital Cities who make an effective
"Cash Election" will receive (subject to the proration procedures described
below) for each share of Capital Cities Common Stock for which such election is
made, in cash, an amount equal to $65 plus the Disney Common Stock Price
(collectively, the "Cash Consideration"). If a holder of Capital Cities Common
Stock does not make a Standard Election, a Cash Election or a Stock Election, or
properly revokes an effective, properly completed Election Form without timely
submitting a revised, properly completed Election Form, such Capital Cities
shareholder will be deemed to have made a Cash Election.
5
<PAGE>
In the event that the aggregate number of shares of New Disney Common Stock
requested by shareholders of Capital Cities pursuant to effective Stock
Elections (the "Requested Stock Amount") exceeds the Stock Component, each
holder making an effective Stock Election will receive, for each share of
Capital Cities Common Stock for which a Stock Election has been made, (x) a
number of shares of New Disney Common Stock equal to the product of the Stock
Consideration and a fraction, the numerator of which is the Stock Component and
the denominator of which is the Requested Stock Amount (such product, the
"Prorated Stock Amount") and (y) cash in an amount equal to the product of (a)
the Stock Consideration minus the Prorated Stock Amount and (b) the Disney
Common Stock Price. The "Stock Component" is the number of Outstanding Capital
Cities Shares minus the aggregate number of Outstanding Capital Cities Shares
with respect to which effective Standard Elections have been received by the
Exchange Agent. The "Outstanding Capital Cities Shares" consist of the shares of
Capital Cities Common Stock outstanding immediately prior to the Effective Time
(which is exclusive of shares of Capital Cities Common Stock held in the Capital
Cities treasury) minus the number of shares of Capital Cities Common Stock with
respect to which dissenters' rights have been perfected pursuant to Section 623
of the New York Business Corporation Law ("Dissenting Shares").
In the event that the aggregate amount of cash requested by shareholders of
Capital Cities pursuant to effective or deemed Cash Elections (the "Requested
Cash Amount") exceeds the Cash Component, each such holder will receive, for
each share of Capital Cities Common Stock for which a Cash Election has been
made or deemed to be made, (x) cash in an amount equal to the product of the
Cash Consideration and a fraction, the numerator of which is the Cash Component
and the denominator of which is the Requested Cash Amount (such product, the
"Prorated Cash Amount") and (y) a number of shares of New Disney Common Stock
equal to a fraction, the numerator of which is equal to the Cash Consideration
minus the Prorated Cash Amount and the denominator of which is the Disney Common
Stock Price. The "Maximum Cash Amount" is equal to the product of the number of
Outstanding Capital Cities Shares and $65; PROVIDED, HOWEVER, that the Maximum
Cash Amount may be increased in Disney's sole discretion at any time prior to
the fifth business day after the deadline (the "Election Deadline") for Capital
Cities shareholders to submit to the Exchange Agent appointed pursuant to the
Reorganization Agreement (the "Exchange Agent") their completed Election Forms.
The Election Deadline will be no later than the 20th business day after the
Effective Time. The "Cash Component" is equal to the Maximum Cash Amount minus
the product of (i) the number of shares of Capital Cities Common Stock for which
effective Standard Elections have been made and (ii) $65. See "Unaudited Pro
Forma Combined Condensed Financial Statements."
No fractional shares of New Disney Common Stock will be issued pursuant to
the Capital Cities Merger. In lieu of the issuance of any fractional shares of
New Disney Common Stock, cash equal to the product of such fractional share
amount and the Disney Common Stock Price will be paid to holders in respect of
any fractional share of New Disney Common Stock that would otherwise be
issuable.
The obligations of Disney and Capital Cities to consummate the Acquisition
are subject to the fulfillment of various conditions, including, among others:
(i) the effectiveness of the Registration Statement relating to the Acquisition
and the absence of any stop order suspending the effectiveness thereof and no
proceeding for that purpose having been initiated by the Commission; (ii)
approval by the stockholders of Disney and the shareholders of Capital Cities;
(iii) expiration or termination of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iv) receipt
of all requisite orders and approvals of the Federal Communications Commission;
and (v) listing of the New Disney Common Stock on the New York Stock Exchange,
subject only to official notice of issuance. Consummation of the Acquisition is
subject to a number of important contingencies, and no assurances can be given
that it will occur. An investment in the Securities prior to the consummation of
the Acquisition should not be made in reliance upon the Acquisition occurring.
6
<PAGE>
BUSINESS OF CAPITAL CITIES
Capital Cities, directly or through its subsidiaries, operates the ABC
Television Network, ten television stations, the ABC Radio Networks and 21 radio
stations, and provides programming for cable television. Capital Cities, through
joint ventures, is engaged in international broadcast/cable services and
television production and distribution. Capital Cities also publishes daily and
weekly newspapers, shopping guides, various specialized and business periodicals
and books, provides research services and also distributes information from
databases.
Capital Cities' assets include the ABC Television Network, which as of June
30, 1995 had 224 primary affiliated stations reaching 99.9% of all U.S.
television households. A number of secondary affiliated stations add to the
primary coverage. In addition, Capital Cities owns nine very high frequency
(VHF) television stations, one ultra high frequency (UHF) television station,
eleven standard (AM) radio stations and ten frequency modulation (FM) radio
stations. All but one television station are affiliated with the ABC Television
Network and all but four radio stations are affiliated with the ABC Radio
Networks.
Generally, Capital Cities pays the cost of producing its own programs or
acquiring broadcast rights from other producers for its network programming and
pays varying amounts of compensation to its affiliated stations for broadcasting
the programs and commercial announcements included therein. Substantially all
revenues from network operations are derived from the sale to advertisers of
time in network programs for commercial announcements.
Capital Cities' Cable and International Broadcast operations are principally
involved in the production and distribution of cable television programming, in
the licensing of programming to domestic and international markets and in joint
ventures in foreign-based television operations and television production and
distribution entities. The primary domestic cable programming services are ESPN,
A&E Television Network and Lifetime Television.
Capital Cities' publishing operations (i) publish seven daily newspapers
(five of which have Sunday editions); weekly community newspapers in four
states; shopping guides and real estate magazines in eleven states; specialized
publications that involve news and ideas for various industries; and consumer,
special interest, trade and agricultural publications; and (ii) engage in
research and database services.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, New
Disney intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including, without limitation, to finance a portion
of the Acquisition or to repay commercial paper or other indebtedness incurred
by New Disney to finance the Acquisition.
If the Acquisition is not consummated, the net proceeds of any Securities
issued by New Disney will be transferred to Disney and will be used by Disney
for general corporate purposes.
7
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
Set forth below are the consolidated ratios of earnings to fixed charges for
Disney for the nine-month periods ended June 30, 1995 and 1994 and for each of
the years in the five-year period ended September 30, 1994. Also set forth below
are the unaudited pro forma combined ratios of earnings to fixed charges for New
Disney for the nine months ended June 30, 1995 and for the year ended September
30, 1994:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED JUNE 30, YEAR ENDED SEPTEMBER 30,
--------------- -------------------------------------
1995 1994 1994 1993 1992 1991 1990
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Actual (1).................... 8x 8x 9x 7x 8x 6x 11x
Pro forma (1)(2):
Scenario 1.................. x x
Scenario 2.................. x x
<FN>
------------------------
(1) For purposes of these ratios, earnings are calculated by adding to
(subtracting from) income from continuing operations before income taxes
and cumulative effect of accounting changes, the following: fixed charges,
excluding capitalized interest; and losses and (undistributed earnings)
recognized with respect to less than 50% owned equity investments. Fixed
charges consist of interest on borrowings and that portion of rental
expense that represents interest.
(2) [Provided supplementally to the Staff of the Commission]
</TABLE>
8
<PAGE>
UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
[Provided supplementally to the Staff of the Commission]
9
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities may be issued, from time to time, in one or more series,
and will constitute either Senior Debt Securities, Senior Subordinated Debt
Securities or Subordinated Debt Securities. Senior Debt Securities may be issued
under an Indenture, dated as of , 1995 (the "Senior Debt Securities
Indenture"), between New Disney, Disney, as guarantor, and , as trustee (the
"Senior Debt Securities Trustee"). The Senior Subordinated Debt Securities may
be issued from time to time under an Indenture, dated as of , 1995 (the
"Senior Subordinated Debt Securities Indenture"), between New Disney, Disney, as
guarantor, and as Trustee (the "Senior Subordinated Debt Securities
Trustee"). The Subordinated Debt Securities may be issued from time to time
under an Indenture, dated as of , 1995 (the "Subordinated Debt Securities
Indenture"), between New Disney, Disney, as guarantor, and , as trustee (the
"Subordinated Debt Securities Trustee").
The Senior Debt Securities Indenture, the Senior Subordinated Debt
Securities Indenture, and the Subordinated Debt Securities Indenture are
referred to herein individually as an "Indenture" and, collectively, as the
"Indentures," and the Senior Debt Securities Trustee, the Senior Subordinated
Debt Securities Trustee and the Subordinated Debt Securities Trustee are
referred to herein individually as the "Trustee" and collectively as the
"Trustees." Copies of the Indentures are filed as exhibits to the Registration
Statement. Capitalized terms used in this section which are not otherwise
defined in this Prospectus shall have the meanings set forth in the Indentures
to which they relate. The following summaries of certain provisions of the Debt
Securities and the Indentures do not purport to be complete and are subject to,
and are qualified in their entirety by express reference to, all the provisions
of the Indentures, including the definitions therein of certain terms. As used
in the aforementioned sections of this Prospectus, "New Disney" refers to DC
Holdco, Inc. and does not include its subsidiaries, including, after
consummation of the Acquisition, Disney or Capital Cities.
GENERAL
The Debt Securities will be direct, unsecured obligations of New Disney.
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provide that Debt Securities may be
issued thereunder from time to time in one or more series.
Under the Indentures, New Disney will have the ability to issue Debt
Securities with terms different from those of Debt Securities previously issued,
without the consent of the holders of previously issued series of Debt
Securities, in an aggregate principal amount determined by New Disney.
Securities may be issued as Discount Securities, which may be sold at a
discount below their principal amount. Even if Securities are not issued at a
discount below their principal amount, such Securities may, for United States
Federal income tax purposes, be deemed to have been issued with "original issue
discount" ("OID") because of certain interest payment characteristics. Special
United States Federal income tax considerations applicable to Securities issued
with original issue discount, including Discount Securities, will be described
in more detail in any applicable Prospectus Supplement. In addition, special
United States Federal tax considerations or other restrictions or terms
applicable to any Debt Securities which are issuable in bearer form, offered
exclusively to United States Aliens or denominated in a currency other than
United States dollars will be set forth in a Prospectus Supplement relating
thereto.
10
<PAGE>
The applicable Prospectus Supplement or Prospectus Supplements will
describe, among other things, the following terms of the Debt Securities offered
thereby (the "Offered Debt Securities"): (i) the title of the Offered Debt
Securities; (ii) any limit on the aggregate principal amount of the Offered Debt
Securities; (iii) whether the Offered Debt Securities are to be issuable as
Registered Securities or Bearer Securities or both and whether the Offered Debt
Securities may be represented initially by a Debt Security in temporary or
permanent global form, and if so, the initial Depositary with respect to such
temporary or permanent global Debt Security and whether and the circumstances
under which beneficial owners of interests in any such temporary or permanent
global Debt Security may exchange such interests for Debt Securities of such
series and of like tenor of any authorized form and denomination; (iv) the price
or prices at which the Offered Debt Securities will be issued; (v) the date or
dates on which the principal of the Offered Debt Securities is payable or the
method of determination thereof; (vi) the place or places where and the manner
in which the principal of and premium, if any, and interest, if any, on such
Offered Debt Securities will be payable and the place or places where such
Offered Debt Securities may be presented for transfer and, if applicable,
conversion or exchange; (vii) the rate or rates at which the Offered Debt
Securities will bear interest, or the method of calculating such rate or rates,
if any, and the date or dates from which such interest, if any, will accrue;
(viii) the Interest Payment Dates, if any, on which any interest on the Offered
Debt Securities will be payable, and the Regular Record Date for any interest
payable on any Offered Debt Securities which are Registered Securities; (ix) the
right or obligation, if any, of New Disney to redeem or purchase Debt Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a holder thereof, the conditions, if any, giving rise to such right or
obligation, and the period or periods within which, and the price or prices at
which and the terms and conditions upon which Debt Securities of the series
shall be redeemed or purchased, in whole or part, and any provisions for the
remarketing of such Debt Securities; (x) whether such Offered Debt Securities
are convertible or exchangeable into other debt or equity securities, and, if
so, the terms and conditions upon which such conversion or exchange will be
effected including the initial conversion or exchange price or rate and any
adjustments thereto, the conversion or exchange period and other conversion or
exchange provisions; (xi) the currency or currencies, including composite
currencies or currency units, of payment of principal of and interest, if any,
on the Offered Debt Securities, if other than U.S. dollars, and, if other than
U.S. dollars, whether the Offered Debt Securities may be satisfied and
discharged other than as provided in the Indenture and whether New Disney or the
holders of any such Offered Debt Securities may elect to receive payments in
respect of such Offered Debt Securities in a currency or currency units other
than that in which such Offered Debt Securities are stated to be payable; (xii)
any terms applicable to such Offered Debt Securities issued at an issue price
below their stated principal amount, including the issue price thereof and the
rate or rates at which such original issue discount will accrue; (xiii) if the
amount of payments of principal of and interest, if any, on the Offered Debt
Securities is to be determined by reference to an index, formula or other
method, or based on a coin or currency or currency unit other than that in which
the Offered Debt Securities are stated to be payable, the manner in which such
amounts are to be determined and the calculation agent, if any, with respect
thereto; (xiv) if other than the principal amount thereof, the portion of the
principal amount of the Offered Debt Securities which will be payable upon
declaration or acceleration of the Maturity thereof pursuant to an Event of
Default; (xv) any deletions from, modifications of or additions to the Events of
Default or covenants of New Disney with respect to such Offered Debt Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein; (xvi) the terms and conditions
of any Debt Guarantees (as defined below) of Disney with respect to the Offered
Debt Securities, including the terms upon which any such guarantee may be
released; (xvii) any special United States Federal income tax considerations
applicable to the Offered Debt Securities; and (xviii) any other terms of the
Offered Debt Securities not inconsistent with the provisions of any applicable
Indenture. The applicable Prospectus Supplement will also describe the following
terms of any series of Subordinated or Senior Subordinated Debt Securities
offered hereby in respect of which this Prospectus is being delivered: (a) the
rights, if any, to defer payments of interest on the Subordinated or Senior
Subordinated Debt Securities of such series by extending the interest payment
period, and the duration of such extensions, and
11
<PAGE>
(b) the subordination terms of the Subordinated or Senior Subordinated Debt
Securities of such series. The foregoing is not intended to be an exclusive list
of the terms that may be applicable to any Offered Debt Securities and shall not
limit in any respect the ability of New Disney to issue Debt Securities with
terms different from or in addition to those described above or elsewhere in
this Prospectus provided that such terms are not inconsistent with the
applicable Indenture. Any such Prospectus Supplement will also describe any
special provisions for the payment of additional amounts with respect to the
Offered Debt Securities.
The operations of New Disney, if the Acquisition is consummated will be
conducted almost entirely through subsidiaries. The operations of Disney are
currently conducted in significant part through subsidiaries. Accordingly, the
cash flow and the consequent ability to service debt of New Disney and Disney,
including the Debt Securities and any Debt Guarantees of Disney, are dependent
upon the earnings of their subsidiaries and the distribution of those earnings
to New Disney or Disney, as the case may be, whether by dividends, loans or
otherwise. The payment of dividends and the making of loans and advances to New
Disney and Disney by their subsidiaries may be subject to statutory or
contractual restrictions, are contingent upon the earnings of those subsidiaries
and are subject to various business considerations. Any right of New Disney and
Disney to receive assets of any of its subsidiaries upon their liquidation or
reorganization (and the consequent right of the holders of the Debt Securities
to participate in those assets) will be effectively subordinated to the claims
of that subsidiary's creditors (including trade creditors), except to the extent
that New Disney or Disney, as the case may be, is itself recognized as a
creditor of such subsidiary, in which case the claims of New Disney or Disney,
as the case may be, would still be subordinate to any security interests in the
assets of such subsidiary and any indebtedness of such subsidiary senior to that
held by New Disney or Disney.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The Debt Securities of a series may be issued solely as Registered
Securities, solely as Bearer Securities (with or without coupons attached) or as
both Registered Securities and Bearer Securities. Debt Securities of a series
may be issuable in whole or part in the form of one or more global Debt
Securities, as described below under "Global Debt Securities." Unless otherwise
indicated in an applicable Prospectus Supplement, Registered Securities will be
issuable in denominations of $1,000 and integral multiples thereof, and Bearer
Securities will be issuable in denominations of $5,000 and $100,000.
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Debt Securities of
any series are issuable as both Registered Securities and as Bearer Securities,
at the option of the holder, subject to the terms of the applicable Indenture,
Bearer Securities (accompanied by all unmatured coupons, except as provided
below, and all matured coupons in default) of such series will be exchangeable
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. Unless otherwise indicated in an
applicable Prospectus Supplement, any Bearer Security surrendered in exchange
for a Registered Security between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest will be surrendered without the
coupon relating to such date for payment of interest and interest will not be
payable in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the holder of such coupon when due in
accordance with the terms of the applicable Indenture. Bearer Securities may not
be issued in exchange for Registered Securities.
Debt Securities may be presented for exchange as provided above, and unless
otherwise indicated in an applicable Prospectus Supplement, Registered
Securities may be presented for registration of transfer, at the office or
agency of New Disney designated as Registrar or co-registrar with respect to any
series of Debt Securities, without service charge and upon payment of any taxes,
assessments or other governmental charges as described in the applicable
Indenture. Such transfer or exchange will
12
<PAGE>
be effected on the books of the Registrar or any other transfer agent appointed
by New Disney upon such Registrar or transfer agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. New Disney intends to initially appoint the Trustee as Registrar and
the name of any different or additional Registrar designated by New Disney with
respect to the Offered Debt Securities will be included in the Prospectus
Supplement relating thereto. If a Prospectus Supplement refers to any transfer
agents (in addition to the Registrar) designated by New Disney with respect to
any series of Debt Securities, New Disney may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that, if Debt Securities of a
series are issuable only as Registered Securities, New Disney will be required
to maintain a transfer agent in each Place of Payment for such series and, if
Debt Securities of a series are issuable as Bearer Securities, New Disney will
be required to maintain (in addition to the Registrar) a transfer agent in a
Place of Payment for such series located outside the United States. New Disney
may at any time designate additional transfer agents with respect to any series
of Debt Securities.
In the event of any partial redemption of Debt Securities of any series, New
Disney will not be required to (i) issue, register the transfer of or exchange
Debt Securities of that series during a period beginning at the opening of
business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (a) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption, and (b) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part; or (iii) exchange any
Bearer Security called for redemption, except to exchange such Bearer Security
for a Registered Security of that series and of like tenor and principal amount
that is immediately surrendered for redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and interest, if any, on Registered Securities will be made at
the office of such Paying Agent or Paying Agents as New Disney may designate
from time to time, except that at the option of New Disney payment of principal
or interest may be made by check or by wire transfer to an account maintained by
the payee. Unless otherwise indicated in an applicable Prospectus Supplement,
payment of any installment of interest on Registered Securities will be made to
the person in whose name such Registered Security is registered at the close of
business on the Regular Record Date for such interest.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and interest, if any, on Bearer Securities will be payable,
subject to any applicable laws and regulations, at the offices of such Paying
Agents outside the United States as New Disney may designate from time to time,
or by check or by transfer to an account maintained by the payee outside the
United States. Unless otherwise indicated in an applicable Prospectus
Supplement, any payment of interest on any Bearer Securities will be made only
against surrender of the coupon relating to such interest installment.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee will be designated as New Disney's sole Paying Agent for payments with
respect to Debt Securities which are issuable solely as Registered Securities
and as New Disney's Paying Agent in the Borough of Manhattan, The City of New
York, for payments with respect to Debt Securities (subject to any limitations
described in any applicable Prospectus Supplement) which are issuable as Bearer
Securities. Any Paying Agents outside the United States and any other Paying
Agents in the United States initially designated by New Disney for the Offered
Debt Securities will be named in an applicable Prospectus Supplement. New Disney
may at any time designate additional Paying Agents or rescind the designation of
any Paying Agent or approve a change in the office through which any Paying
Agent acts,
13
<PAGE>
except that, if Debt Securities of a series are issuable only as Registered
Securities, New Disney will be required to maintain a Paying Agent in each Place
of Payment for such series and, if Debt Securities of a series are issuable as
Bearer Securities, New Disney will be required to maintain (i) a Paying Agent in
the Borough of Manhattan, The City of New York for payments with respect to any
Registered Securities of the series (and for payments with respect to Bearer
Securities of the series in the circumstances described in the Indenture, but
not otherwise), and (ii) a Paying Agent in a Place of Payment located outside
the United States where Debt Securities of such series and any related coupons
may be presented and surrendered for payment.
All moneys paid by New Disney to a Paying Agent for the payment of principal
of or interest, if any, on any Debt Security which remains unclaimed at the end
of two years after such principal or interest shall have become due and payable
will be repaid to New Disney, and the holder of such Debt Security or any coupon
will thereafter look only to New Disney for payment thereof.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form. A Debt Security in global form will be deposited with, or on behalf of, a
Depositary, which will be identified in an applicable Prospectus Supplement. A
global Debt Security may be issued in either registered or bearer form and in
either temporary or permanent form. A Debt Security in global form may not be
transferred except as a whole to the Depositary for such Debt Security or to a
nominee or successor of such Depositary. If any Debt Securities of a series are
issuable in global form, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any such
global Debt Security may exchange such interests for definitive Debt Securities
of such series and of like tenor and principal amount in any authorized form and
denomination, the manner of payment of principal of and interest, if any, on any
such global Debt Security and the specific terms of the depositary arrangement
with respect to any such global Debt Security.
GUARANTEES OF DEBT SECURITIES
Under the terms of the Indentures and subject to the provisions thereof,
prior to the consummation of the Acquisition, Disney will, and subsequent to the
consummation of the Acquisition, Disney may, at its option, unconditionally
guarantee to the holders from time to time of specified series of Debt
Securities the full and prompt payment of principal, premium, if any, and
interest when and as the same shall become due and payable, whether at maturity,
upon redemption or otherwise. Any such guarantees (each, a "Debt Guarantee")
will be unsecured obligations of Disney. Any right of payment of the holders of
Senior Debt Securities under the related Debt Guarantee will be prior to the
right of payment of the holders of Senior Subordinated Debt Securities or
Subordinated Debt Securities under the related Debt Guarantee, and any right of
payment of the holders of Senior Subordinated Debt Securities under the related
Debt Guarantee will be prior to the right of payment of the holders of
Subordinated Debt Securities under the related Debt Guarantee, in each case upon
the terms set forth in the applicable Prospectus Supplement. The Debt Guarantees
may be subordinated to other indebtedness and obligations of Disney to the
extent set forth in the applicable Prospectus Supplement. Unless otherwise
stated in the applicable Prospectus Supplement, upon consummation of the
Acquisition, without any action by Disney, New Disney, the Trustees or any other
person, all obligations of Disney under the Indentures and any Debt Guarantees
will terminate and any event related to Disney which would otherwise constitute
an Event of Default under the Indenture shall not constitute an Event of
Default.
If a Debt Guarantee is applicable to Debt Securities offered hereby,
reference is made to the applicable Indenture and the accompanying Prospectus
Supplement for a description of the specific terms of such Debt Guarantee,
including events of default relating thereto, the outstanding principal amount
of indebtedness and other obligations that will rank senior to such Debt
Guarantee and, where applicable, subordination provisions of such Debt Guarantee
and covenants of the Guarantor.
14
<PAGE>
MERGERS AND SALES OF ASSETS
New Disney may not consolidate with or merge into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to another person, unless, among other things, (i) the resulting, surviving or
transferee person (if other than New Disney) is organized and existing under the
laws of the United States, any state thereof or the District of Columbia and
such person expressly assumes all obligations of New Disney under the Debt
Securities and the Indenture, and (ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred or be continuing
under the Indenture. Upon the assumption of New Disney's obligations by a person
to whom such properties or assets are conveyed, transferred or leased, subject
to certain exceptions, New Disney shall be discharged from all obligations under
the Debt Securities and the Indenture. Notwithstanding the foregoing, in the
event the Acquisition does not occur, New Disney may consolidate with or merge
into Disney and, upon such consolidation or merger, the Debt Securities will
thereafter be obligations solely of Disney without any action on the part of
Disney, New Disney or any other person.
So long as any Debt Guarantee is in effect with respect to a series of Debt
Securities, Disney may not consolidate with or merge into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to another person, unless, among other things, (i) the resulting, surviving or
transferee person (if other than Disney) is organized and existing under the
laws of the United States, any state thereof or the District of Columbia and
such person expressly assumes all obligations of Disney under the Debt
Guarantees and the Indenture, and (ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred or be continuing
under the Indenture. Upon the assumption of Disney's obligations by a person to
whom such properties or assets are conveyed, transferred or leased, subject to
certain exceptions, Disney shall be discharged from all obligations under the
Debt Guarantees and the Indenture.
EVENTS OF DEFAULT
Each Indenture provides that, if an Event of Default specified therein shall
have occurred and be continuing, with respect to each series of the Debt
Securities outstanding thereunder individually, the Trustee or the holders of
not less than 25% in aggregate principal amount of the Outstanding Securities of
such series may declare the principal amount (or, if any of the Debt Securities
of such series are Discount Securities, such portion of the principal amount of
such Debt Securities as may be specified by the terms thereof) of the Debt
Securities of such series to be immediately due and payable. Under certain
circumstances, the holders of a majority in aggregate principal amount of the
Outstanding Securities of such series may rescind such a declaration.
Under each Indenture, an Event of Default is defined as, with respect to
each series of Securities outstanding thereunder individually, any of the
following: (i) default in payment of the principal of any Debt Security of such
series; (ii) default in payment of any interest on any Debt Security of such
series when due, continuing for 30 days (or 60 days, in the case of Senior
Subordinated or Subordinated Debt Securities); (iii) failure by New Disney to
comply with its other agreements in the Debt Securities of such series or such
Indenture for the benefit of the holders of Debt Securities of such series upon
the receipt by New Disney of notice of such Default by the Trustee or the
holders of at least 25% in aggregate principal amount of the Outstanding
Securities of such series and New Disney's failure to cure such Default within
60 days after receipt by New Disney of such notice; (iv) certain events of
bankruptcy or insolvency; (v) in the case of Debt Securities guaranteed by
Disney, any Debt Guarantee shall for any reason cease to be, or be asserted in
writing by a responsible officer of Disney not to be, in full force and effect,
except to the extent contemplated by the Indenture and such Debt Guarantee; and
(vi) any other Event of Default set forth in an applicable Prospectus
Supplement.
The Trustee shall give notice to holders of the Debt Securities of any
continuing Default known to the Trustee within 90 days after the occurrence
thereof; PROVIDED, that the Trustee may withhold such notice, as to any Default
other than a payment Default, if it determines in good faith that withholding
the notice is in the interests of the holders.
15
<PAGE>
The holders of a majority in principal amount of the Outstanding Securities
of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series; PROVIDED that such
direction shall not be in conflict with any law or the Indenture and subject to
certain other limitations. Before proceeding to exercise any right or power
under the Indenture at the direction of such holders, the Trustee shall be
entitled to receive from such holders reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in complying with any such direction. With respect to each series
of Debt Securities, no holder will have any right to pursue any remedy with
respect to the Indenture or the Debt Securities, unless (i) such holder shall
have previously given the Trustee written notice of a continuing Event of
Default with respect to the Debt Securities of such series; (ii) the holders of
at least 25% in aggregate principal amount of the Outstanding Securities of such
series shall have made a written request to the Trustee to pursue such remedy;
(iii) such holder or holders have offered to the Trustee reasonable indemnity
satisfactory to the Trustee; (iv) the holders of a majority in aggregate
principal amount of the Outstanding Securities of such series have not given the
Trustee a direction inconsistent with such request within 60 days after receipt
of such request; and (v) the Trustee shall have failed to comply with the
request within such 60-day period.
Notwithstanding the foregoing, the right of any holder of any Debt Security
or coupon to receive payment of the principal of and interest in respect of such
Debt Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Debt Security or coupon or to institute suit for the
enforcement of any such payments shall not be impaired or adversely affected
without such holder's consent. The holders of at least a majority in aggregate
principal amount of the Outstanding Securities of any series of Debt Securities
may waive an existing Default with respect to such series and its consequences,
other than (i) any Default in any payment of the principal of, or interest on,
any Debt Security of such series or (ii) any Default in respect of certain
covenants or provisions in the Indenture which may not be modified without the
consent of the holder of each Outstanding Security of such series affected as
described in "Modification and Waiver," below.
Each Indenture provides that the Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company (beginning with the
fiscal year ending September 30, 1996) an Officers' Certificate stating whether
or not the signers know of any Default that occurred during such period.
MODIFICATION AND WAIVER
New Disney, Disney and the Trustee may execute a supplemental indenture
without the consent of the holders of the Debt Securities or any related coupons
(i) to add to the covenants, agreements and obligations of New Disney or Disney
for the benefit of the holders of all the Debt Securities of any series and any
related Debt Guarantees or to surrender any right or power conferred in the
Indenture upon New Disney or Disney; (ii) to evidence the succession of another
corporation to New Disney and the assumption by it of the obligations of New
Disney under the Indenture and the Debt Securities or to evidence the succession
of another corporation to Disney and the assumption by it of the obligations of
Disney under the Indenture and the Debt Guarantees; (iii) to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any
restrictions (including restrictions relating to payment in the United States)
on the payment of principal of or interest, if any, on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit the issuance of Debt Securities in
uncertificated form; (iv) to establish the form or terms of Debt Securities of
any series and any related Debt Guarantees or coupons as permitted by the
Indenture; (v) to provide for the acceptance of appointment under the Indenture
of a successor Trustee with respect to the Debt Securities of one or more series
and to add to or change any provisions of the Indenture as shall be necessary to
provide for or facilitate the administration of the trusts by more than one
Trustee; (vi) to cure any ambiguity, defect or inconsistency; (vii) to add to,
change or eliminate any provisions (which addition, change or elimination may
apply to one or more
16
<PAGE>
series of Debt Securities), PROVIDED that any such addition, change or
elimination neither (a) applies to any Debt Security of any series created prior
to the execution of such supplemental indenture and is entitled to the benefit
of such provision nor (b) modifies the rights of the holder of any such Debt
Security with respect to such provision; (viii) to secure the Debt Securities;
or (ix) to make any other change that does not adversely affect the rights of
any Securityholder.
Each Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
the series affected by such supplemental indenture, New Disney, Disney and the
Trustee may also execute a supplemental indenture to add provisions to, or
change in any manner or eliminate any provisions of, the Indenture with respect
to such series of Debt Securities or modify in any manner the rights of the
holders of the Debt Securities of such series and any related coupons under such
Indenture; PROVIDED that no such supplemental indenture will, without the
consent of the holder of each such Outstanding Security affected thereby (i)
change the stated maturity of the principal of, or any installment of principal
or interest on, any such Debt Security or any premium payable upon redemption
thereof, or reduce the amount of principal of any Debt Security that is a
Discount Security and that would be due and payable upon declaration of
acceleration of maturity thereof; (ii) reduce the principal amount of, or the
rate of interest on, any such Debt Security; (iii) change the place or currency
of payment of principal or interest, if any, on any such Debt Security; (iv)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (v) reduce the above-stated percentage of
holders of Debt Securities of any series necessary to modify or amend such
Indenture; (vi) modify the foregoing requirements or reduce the percentage in
principal amount of Outstanding Securities of any series necessary to waive any
covenant or past default; (vii) make any change in the terms of any Debt
Guaranty with respect to the Debt Securities of any series in any manner adverse
to the rights of the holders of Debt Securities of such series; or (viii) in the
case of Senior Subordinated or Subordinated Debt Securities, amend or modify any
of the provisions of such Indenture relating to subordination of the Debt
Securities in any manner adverse to the holders of such Debt Securities. Holders
of not less than a majority in principal amount of the Outstanding Securities of
any series may waive certain past Defaults and may waive compliance by New
Disney with certain of the restrictive covenants described above with respect to
the Debt Securities of such series.
DISCHARGE AND DEFEASANCE
Unless otherwise indicated in an applicable Prospectus Supplement, each
Indenture provides that New Disney may satisfy and discharge obligations
thereunder with respect to the Debt Securities of any series by delivering to
the Trustee for cancellation all Outstanding Securities of such series or
depositing with the Trustee, after such Outstanding Securities have become due
and payable, cash sufficient to pay at Stated Maturity all of the Outstanding
Securities of such series and paying all other sums payable under the Indenture
with respect to such series.
In addition, unless otherwise indicated in an applicable Prospectus
Supplement, each Indenture provides that: New Disney and Disney (a) shall be
discharged from its obligations in respect of the Debt Securities of such series
("defeasance and discharge"), or (b) may cease to comply with certain
restrictive covenants ("covenant defeasance") including those described under
"Mergers and Sales of Assets" and any such omission shall not be an Event of
Default with respect to the Debt Securities of such series, in each case at any
time prior to the Stated Maturity or redemption thereof, when New Disney has
irrevocably deposited with the Trustee, in trust, (i) sufficient funds in the
currency or currency unit in which the Debt Securities are denominated to pay
the principal of (and premium, if any) and interest to Stated Maturity (or
redemption) on, the Debt Securities of such series, or (ii) such amount of
direct obligations of, or obligations the principal of (and premium, if any) and
interest on which are fully guaranteed by, the government which issued the
currency in which the Debt Securities are denominated, and which are not subject
to prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the principal of (and premium, if any)
and interest to Stated Maturity (or redemption) on, the Debt Securities of such
series. Such defeasance and discharge and
17
<PAGE>
covenant defeasance are conditioned upon, among other things, New Disney's
delivery of an opinion of counsel that the holders of the Debt Securities of
such series will not recognize income, gain or loss for United States Federal
income tax purposes as a result of such defeasance, and will be subject to tax
in the same manner as if no defeasance and discharge or covenant defeasance, as
the case may be, had occurred. Upon such defeasance and discharge, the holders
of the Debt Securities of such series shall no longer be entitled to the
benefits of the Indenture, except for the purposes of registration of transfer
and exchange of the Debt Securities of such series and replacement of lost,
stolen or mutilated Debt Securities and shall look only to such deposited funds
or obligations for payment.
THE TRUSTEES
The Senior Debt Securities Trustee is a . The Senior
Subordinated Debt Securities Trustee is a . The Subordinated Debt
Securities Trustee is a . Each Trustee will be permitted to engage
in other transactions with Disney, New Disney and each of their subsidiaries;
HOWEVER, if the Trustee acquires any conflicting interest, it must eliminate
such conflict or resign.
DESCRIPTION OF PREFERRED STOCK
New Disney may issue, from time to time, shares of one or more series or
classes of Preferred Stock. The obligation of New Disney to make dividend
payments and payments upon liquidation or redemption with respect to Preferred
Stock issued prior to the consummation of the Acquisition will be guaranteed, to
the extent set forth herein and in any applicable Prospectus Supplement, by
Disney, which guarantee will be released upon the consummation of the
Acquisition.
The following description sets forth certain general terms and provisions of
the Preferred Stock to which any Prospectus Supplement may relate. The
particular terms of any series of Preferred Stock and the extent, if any, to
which such general provisions may apply to the series of Preferred Stock so
offered will be described in the Prospectus Supplement relating to such
Preferred Stock. The following summary of certain provisions of the Preferred
Stock do not purport to be complete and is subject to, and is qualified in its
entirety by express reference to, the provisions of New Disney's Restated
Certificate of Incorporation (the "New Disney Certificate of Incorporation") and
the Certificate of Designation relating to a specific series of the Preferred
Stock (the "Certificate of Designation"), which will be in the form filed as an
exhibit to, or incorporated by reference in, the Registration Statement of which
this Prospectus is a part at or prior to the time of issuance of such series of
Preferred Stock.
Under the New Disney Certificate of Incorporation, New Disney has the
authority to issue 100,000,000 shares of Preferred Stock. The Board of Directors
of New Disney is authorized to issue shares of Preferred Stock, in one or more
series or classes, and to fix for each such series voting powers and such
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions as are permitted by the
Delaware General Corporation Law.
The Board of Directors of New Disney shall be authorized to determine for
each series of Preferred Stock, and the Prospectus Supplement shall set forth
with respect to such series: (i) the designation of such shares and the number
of shares that constitute such series, (ii) the dividend rate (or the method of
calculation thereof), if any, on the shares of such series and the priority as
to payment of dividends with respect to other classes or series of capital stock
of New Disney, (iii) the dividend periods (or the method of calculation
thereof), (iv) the voting rights of the shares, (v) the liquidation preference
and the priority as to payment of such liquidation preference with respect to
other classes or series of capital stock of New Disney and any other rights of
the shares of such series upon any liquidation or winding-up of New Disney, (vi)
whether or not and on what terms the shares of such series will be subject to
redemption or repurchase at the option of New Disney, (vii) whether and on what
terms the shares of such series will be convertible into or exchangeable for
other debt or equity securities, (viii) whether depositary shares representing
shares of such series of Preferred Stock will be offered and, if so, the
fraction of a share of such series of Preferred Stock represented by
18
<PAGE>
each depositary share (see "Description of Depositary Shares" below), (ix)
whether the shares of such series of Preferred Stock will be listed on a
securities exchange, (x) any special United States Federal income tax
considerations applicable to such series, and (xi) the other rights and
privileges and any qualifications, limitations or restrictions of such rights or
privileges of such series.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to receive, when and
as declared by the Board of Directors of New Disney out of funds of New Disney
legally available therefor, an annual cash dividend payable at such dates and at
such rates, if any, per share per annum as set forth in the applicable
Prospectus Supplement.
Unless otherwise set forth in the applicable Prospectus Supplement, each
series of Preferred Stock will rank junior as to dividends to any Preferred
Stock that may be issued in the future that is expressly senior as to dividends
to the Preferred Stock. If at any time New Disney has failed to pay accrued
dividends on any such senior shares at the time such dividends are payable, New
Disney may not pay any dividend on the Preferred Stock or redeem or otherwise
repurchase shares of Preferred Stock until such accumulated but unpaid dividends
on such senior shares have been paid or set aside for payment in full by New
Disney.
Unless otherwise set forth in the applicable Prospectus Supplement, no
dividends (other than in common stock or other capital stock ranking junior to
the Preferred Stock of any series as to dividends and upon liquidation) shall be
declared or paid or set aside for payment, nor shall any other distribution be
declared or made upon the common stock, or any other capital stock of New Disney
ranking junior to or on a parity with the Preferred Stock of such series as to
dividends, nor shall any common stock or any other capital stock of New Disney
ranking junior to or on a parity with the Preferred Stock of such series as to
dividends be redeemed, purchased or otherwise acquired for any consideration (or
any moneys be paid to or made available for a sinking fund for the redemption of
any shares of any such stock) by New Disney (except by conversion into or
exchange for other capital stock of New Disney ranking junior to the Preferred
Stock of such series as to dividends) unless (i) if such series of Preferred
Stock has a cumulative dividend, full cumulative dividends on the Preferred
Stock of such series have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for all past
dividend periods and the then current dividend period and (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends on the
Preferred Stock of such series have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period; provided, however, that any monies
theretofore deposited in any sinking fund with respect to any preferred stock in
compliance with the provisions of such sinking fund may thereafter be applied to
the purchase or redemption of such preferred stock in accordance with the terms
of such sinking fund, regardless of whether at the time of such application full
cumulative dividends upon shares of the Preferred Stock outstanding on the last
dividend payment date shall have been paid or declared and set apart for
payment; and provided, further, that any such junior or parity preferred stock
or common stock may be converted into or exchanged for stock of New Disney
ranking junior to the Preferred Stock as to dividends.
The amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period shall be computed on the basis of a
360-day year of twelve 30-day months. Accrued but unpaid dividends will not bear
interest.
CONVERTIBILITY
No series of Preferred Stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the applicable Prospectus
Supplement.
REDEMPTION AND SINKING FUND
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the applicable Prospectus Supplement.
19
<PAGE>
LIQUIDATION RIGHTS
Unless otherwise set forth in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of New Disney, the holders
of shares of each series of Preferred Stock are entitled to receive out of
assets of New Disney available for distribution to stockholders, before any
distribution of assets is made to holders of: (i) any other shares of preferred
stock ranking junior to such series of Preferred Stock as to rights upon
liquidation, dissolution or winding up; and (ii) shares of common stock,
liquidating distributions per share in the amount of the liquidation preference
specified in the applicable Prospectus Supplement for such series of Preferred
Stock plus any dividends accrued and accumulated but unpaid to the date of final
distribution; but the holders of each series of Preferred Stock will not be
entitled to receive the liquidating distribution of, plus such dividends on,
such shares until the liquidation preference of any shares of New Disney's
capital stock ranking senior to such series of the Preferred Stock as to the
rights upon liquidation, dissolution or winding up shall have been paid (or a
sum set aside therefor sufficient to provide for payment) in full. If upon any
liquidation, dissolution or winding up of New Disney, the amounts payable with
respect to the Preferred Stock, and any other Preferred Stock ranking as to any
such distribution on a parity with the Preferred Stock are not paid in full, the
holders of the preferred stock and such other parity preferred stock will share
ratably in any such distribution of assets in proportion to the full respective
preferential amount to which they are entitled. Unless otherwise specified in a
Prospectus Supplement for a series of Preferred Stock, after payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of shares of Preferred Stock will not be entitled to any further participation
in any distribution of assets by New Disney. Neither a consolidation or merger
of New Disney with another corporation nor a sale of securities shall be
considered a liquidation, dissolution or winding up of New Disney.
VOTING RIGHTS
Holders of Preferred Stock will not have any voting right except as set
forth below or in the applicable Prospectus Supplement or as otherwise from time
to time required by law. Whenever dividends on any applicable series of
Preferred Stock or any other class or series of stock ranking on a parity with
the applicable series of Preferred Stock with respect to the payment of
dividends shall be in arrears for the equivalent of six quarterly dividend
periods, whether or not consecutive, the holders of shares of such series of
Preferred Stock (voting separately as a class with all other series of Preferred
Stock then entitled to such voting rights) will be entitled to vote for the
election of two of the authorized number of directors of New Disney at the next
annual meeting of stockholders and at each subsequent meeting until all
dividends accumulated on such series of Preferred Stock shall have been fully
paid or set apart for payment. The term of office of all directors elected by
the holders of such Preferred Stock shall terminate immediately upon the
termination of the right of the holders of such Preferred Stock to vote for
directors. Unless otherwise set forth in the applicable Prospectus Supplement,
holders of shares of Preferred Stock will have one vote for each share held.
So long as any shares of any series of Preferred Stock remain outstanding,
New Disney shall not, without the consent of holders of at least two-thirds of
the shares of such series of Preferred Stock outstanding at the time, voting
separately as a class with all other series of Preferred Stock of New Disney
upon which like voting rights have been conferred and are exercisable, (i) issue
or increase the authorized amount of any class or series of stock ranking prior
to the outstanding Preferred Stock as to dividends or upon liquidation or (ii)
amend, alter or repeal the provisions of New Disney's Certificate of
Incorporation or of the resolutions contained in the Certificate of Designation
relating to such series of Preferred Stock, whether by merger, consolidation or
otherwise, so as to materially adversely affect any power, preference or special
right of such series of Preferred Stock or the holders thereof; PROVIDED,
HOWEVER, that any increase in the amount of the authorized common stock or
authorized preferred stock or any increase or decrease in the number of shares
of any series of preferred stock or the creation and issuance of other series of
common stock or preferred stock ranking on a parity with or junior to Preferred
Stock as to dividends and upon liquidation, dissolution or winding up shall not
be deemed to materially adversely affect such powers, preferences or special
rights.
20
<PAGE>
MISCELLANEOUS
The holders of Preferred Stock will have no preemptive rights. The Preferred
Stock, upon issuance against full payment of the purchase price therefor, will
be fully paid and nonassessable. Shares of Preferred Stock redeemed or otherwise
reacquired by New Disney shall resume the status of authorized and unissued
shares of Preferred Stock undesignated as to series, and shall be available for
subsequent issuance. There are no restrictions on repurchase or redemption of
the Preferred Stock while there is any arrearage on sinking fund installments
except as may be set forth in an applicable Prospectus Supplement. Payment of
dividends on any series of Preferred Stock may be restricted by loan agreements,
indentures and other transactions entered into by New Disney. The accompanying
Prospectus Supplement will describe any material contractual restrictions on
dividend payments.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the applicable Prospectus Supplement, the
Certificate of Incorporation or the applicable Certificate of Designation or as
otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Preferred Stock will be
designated in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
New Disney may, at its option, elect to offer fractional shares of the
Preferred Stock of a series, rather than full shares of the Preferred Stock of
such series. In the event such option is exercised, New Disney will issue
receipts for Depositary Shares, each of which will represent a fraction (to be
set forth in the Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of Preferred Stock as
described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") among New
Disney, a depositary to be named in the applicable Prospectus Supplement (the
"Preferred Stock Depositary"), and the holders from time to time of depositary
receipts issued thereunder. Subject to the terms of the Deposit Agreement, each
holder of a Depositary Share will be entitled, in proportion to the applicable
fraction of a share of Preferred Stock represented by such Depositary Share, to
all the rights and preferences of the Preferred Stock represented thereby
(including dividend, voting, redemption, subscription and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of the
related series of Preferred Stock.
The following description sets forth certain general terms and provisions of
the Depositary Shares to which any Prospectus Supplement may relate. The
particular terms of the Depositary Shares to which any Prospectus Supplement may
relate and the extent, if any, to which such general provisions may apply to the
Depositary Shares so offered will be described in the applicable Prospectus
Supplement. The forms of Deposit Agreement and Depositary Receipt are filed as
exhibits to the Registration Statement. Capitalized terms used in this section
which are not otherwise defined in this Prospectus shall have the meanings set
forth in the Deposit Agreement. The following summary of certain provisions of
the Depositary Shares and Deposit Agreement does not purport to be complete and
is subject to, and is qualified in its entirety by express reference to, all the
provisions of the Deposit Agreement, including the definitions therein of
certain terms.
21
<PAGE>
Immediately following the issuance of shares of a series of Preferred Stock
by New Disney, New Disney will deposit such shares with the Preferred Stock
Depositary, which will then issue and deliver the Depositary Receipts to the
purchasers thereof. Depositary Receipts will only be issued evidencing whole
Depositary Shares. A Depositary Receipt may evidence any number of whole
Depositary Shares.
Pending the preparation of definitive engraved Depositary Receipts, the
Preferred Stock Depositary may, upon the written order of New Disney, issue
temporary Depositary Receipts substantially identical to (and entitling the
holders thereof to all the rights pertaining to) the definitive Depositary
Receipts but not in definitive form. Definitive Depositary Receipts will be
prepared thereafter without unreasonable delay, and such temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at New Disney's
expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the related series of Preferred Stock
to the record holders of Depositary Shares relating to such series of Preferred
Stock in proportion to the number of such Depositary Shares owned by such
holders.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto in proportion to the number of Depositary
Shares owned by such holders, unless the Preferred Stock Depositary determines
that such distribution cannot be made proportionately among such holders or that
it is not feasible to make such distributions, in which case the Preferred Stock
Depositary may, with the approval of New Disney, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper.
The amount distributed in any of the foregoing cases will be reduced by any
amounts required to be withheld by New Disney or the Preferred Stock Depositary
on account of taxes or other governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Preferred Stock Depositary resulting from any redemption, in
whole or in part, of such series of the Preferred Stock held by the Preferred
Stock Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of the Preferred Stock. If New Disney redeems shares of a series of
Preferred Stock held by the Preferred Stock Depositary, the Preferred Stock
Depositary will redeem as of the same redemption date the number of Depositary
Shares representing the shares of Preferred Stock so redeemed. If less than all
the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
will be selected by lot or substantially equivalent method determined by the
Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption, upon
surrender to the Preferred Stock Depositary of the Depositary Receipts
evidencing such Depositary Shares. Any funds deposited by New Disney with the
Preferred Stock Depositary for any Depositary Shares that the holders thereof
fail to redeem will be returned to New Disney after a period of two years from
the date such funds are so deposited.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
the Preferred Stock are entitled to vote, the Preferred Stock Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such series of Preferred Stock. Each
22
<PAGE>
record holder of such Depositary Shares on the record date (which will be the
same date as the record date for the related series of Preferred Stock) will be
entitled to instruct the Preferred Stock Depositary as to the exercise of the
voting rights pertaining to the number of shares of the series of Preferred
Stock represented by such holder's Depositary Shares. The Preferred Stock
Depositary will endeavor, insofar as practicable, to vote or cause to be voted
the number of shares of the Preferred Stock represented by such Depositary
Shares in accordance with such instructions, provided the Preferred Stock
Depositary receives such instructions sufficiently in advance of such meeting to
enable it to so vote or cause to be voted the shares of Preferred Stock, and New
Disney will agree to take all reasonable action that may be deemed necessary by
the Preferred Stock Depositary in order to enable the Preferred Stock Depositary
to do so. The Preferred Stock Depositary will abstain from voting shares of the
Preferred Stock to the extent it does not receive specific instructions from the
holders of Depositary Shares representing such Preferred Stock.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary and upon payment of the taxes, charges and fees
provided for in the Deposit Agreement and subject to the terms thereof, the
holder of the Depositary Shares evidenced thereby is entitled to delivery at
such office, to or upon his or her order, of the number of whole shares of the
related series of Preferred Stock and any money or other property, if any,
represented by such Depositary Shares. Holders of Depositary Shares will be
entitled to receive whole shares of the related series of Preferred Stock, but
holders of such whole shares of Preferred Stock will not thereafter be entitled
to deposit such shares of Preferred Stock with the Preferred Stock Depositary or
to receive Depositary Shares therefor. If the Depositary Receipts delivered by
the holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of the related series
of Preferred Stock to be withdrawn, the Preferred Stock Depositary will deliver
to such holder or upon his or her order at the same time a new Depositary
Receipt evidencing such excess number of Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between New Disney and the Preferred Stock Depositary.
However, any amendment that materially adversely alters the rights of the
holders of Depositary Shares will not be effective unless such amendment has
been approved by the holders of at least a majority of the Depositary Shares
then outstanding. Every holder of a Depositary Receipt at the time such
amendment becomes effective will be deemed, by continuing to hold such
Depositary Receipt, to be bound by the Deposit Agreement as so amended.
Notwithstanding the foregoing, in no event may any amendment impair the right of
any holder of any Depositary Shares, upon surrender of the Depositary Receipts
evidencing such Depositary Shares and subject to any conditions specified in the
Deposit Agreement, to receive shares of the related series of Preferred Stock
and any money or other property represented thereby, except in order to comply
with mandatory provisions of applicable law. The Deposit Agreement may be
terminated by New Disney at any time upon not less than 60 days prior written
notice to the Preferred Stock Depositary, in which case, on a date that is not
later than 30 days after the date of such notice, the Preferred Stock Depositary
shall deliver or make available for delivery to holders of Depositary Shares,
upon surrender of the Depositary Receipts evidencing such Depositary Shares,
such number of whole or fractional shares of the related series of Preferred
Stock as are represented by such Depositary Shares. The Deposit Agreement shall
automatically terminate after all outstanding Depositary Shares have been
redeemed or there has been a final distribution in respect of the related series
of Preferred Stock in connection with any liquidation, dissolution or winding up
of New Disney and such distribution has been distributed to the holders of
Depositary Shares.
CHARGES OF DEPOSITARY
New Disney will pay all transfer and other taxes and the governmental
charges arising solely from the existence of the depositary arrangements. New
Disney will pay the charges of the Preferred Stock
23
<PAGE>
Depositary, including charges in connection with the initial deposit of the
related series of Preferred Stock and the initial issuance of the Depositary
Shares and all withdrawals of shares of the related series of Preferred Stock,
except that holders of Depositary Shares will pay other transfer and other taxes
and governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to New
Disney written notice of its election to do so, and New Disney may at any time
remove the Depositary, any such resignation or removal to take effect upon the
appointment of a successor Preferred Stock Depositary, which successor Preferred
Stock Depositary must be appointed within 60 days after delivery of the notice
of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to the holders of Depositary
Shares all reports and communications from New Disney that are delivered to the
Preferred Stock Depositary and which New Disney is required to furnish to the
holders of the Preferred Stock.
The Preferred Stock Depositary's corporate trust office will be identified
in the applicable Prospectus Supplement. Unless otherwise set forth in the
applicable Prospectus Supplement, the Preferred Stock Depositary will act as
transfer agent and registrar for Depositary Receipts and if shares of a series
of Preferred Stock are redeemable, the Preferred Stock Depositary will act as
redemption agent for the corresponding Depositary Receipts.
DESCRIPTION OF WARRANTS
GENERAL
New Disney may issue, together with other Securities or separately, warrants
for the purchase of (i) Debt Securities ("Debt Warrants") or (ii) Preferred
Stock ("Preferred Stock Warrants" and, together with the Debt Warrants, the
"Warrants").
The Warrants will be issued under Warrant Agreements to be entered into
between New Disney and a bank or trust company, as warrant agent, all to be set
forth in the applicable Prospectus Supplement relating to any or all Warrants in
respect of which this Prospectus is being delivered. Copies of the form of
agreement for each Warrant, including the forms of certificates representing the
Warrants ("Warrant Certificates") reflecting the provisions to be included in
such agreements that will be entered into with respect to the particular
offerings of each type of warrant are filed as exhibits to the Registration
Statement of which this Prospectus forms a part.
The following description sets forth certain general terms and provisions of
the Warrants to which any Prospectus Supplement may relate. The particular terms
of the Warrants to which any Prospectus Supplement may relate and the extent, if
any, to which such general provisions may apply to the Warrants so offered will
be described in the applicable Prospectus Supplement. Capitalized terms used in
this section which are not otherwise defined in this Prospectus shall have the
meanings set forth in the Warrant Agreement and Warrant Certificate. The
following summary of certain provisions of the Warrants, Warrant Agreement and
Warrant Certificate does not purport to be complete and is subject to, and is
qualified in its entirety by express reference to, all the provisions of the
Warrant Agreement and Warrant Certificate, including the definitions therein of
certain terms.
DEBT WARRANTS
GENERAL. Reference is made to the applicable Prospectus Supplement for the
terms of Debt Warrants in respect of which this Prospectus is being delivered,
the Debt Warrant Agreement relating to such Debt Warrants and the Debt Warrant
Certificates representing such Debt Warrants, including the following: (i) the
designation, aggregate principal amount and terms of the Debt Securities
24
<PAGE>
purchasable upon exercise of such Debt Warrants and the procedures and
conditions relating to the exercise of such Debt Warrants; (ii) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such Debt Security;
(iii) the date, if any, on and after which such Debt Warrants and the related
Debt Securities will be separately transferable; (iv) the principal amount of
Debt Securities purchasable upon exercise of each Debt Warrant and the price at
which such principal amount of Debt Securities may be purchased upon such
exercise; (v) the date on which the right to exercise such Debt Warrants shall
commence and the date on which such right shall expire; (vi) a discussion of the
material United States Federal income tax considerations applicable to the
exercise of Debt Warrants; (vii) whether the Debt Warrants represented by the
Debt Warrant Certificates will be issued in registered or bearer form, and, if
registered, where they may be transferred and registered; (viii) call provisions
of such Debt Warrants, if any; and (ix) any other terms of the Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. Prior to the exercise of
their Debt Warrants, holders of Debt Warrants will not have any of the rights of
holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payments of principal of (and premium, if any) or interest, if any,
on the Debt Securities purchasable upon such exercise.
EXERCISE OF DEBT WARRANTS. Each Debt Warrant will entitle the holder to
purchase for cash such principal amount of Debt Securities at such exercise
price as shall in each case be set forth in, or be determinable as set forth in,
the applicable Prospectus Supplement relating to the Debt Warrants offered
thereby. Debt Warrants may be exercised at any time up to 5:00 p.m. New York
City time on the expiration date set forth in the applicable Prospectus
Supplement. After 5:00 p.m. New York City time on the expiration date,
unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt
Warrant Certificate properly completed and duly executed at the corporate trust
office of the Debt Warrant Agent on any other office indicated in the applicable
Prospectus Supplement, New Disney will, as soon as practicable, forward the Debt
Securities purchasable upon such exercise. If less than all of the Debt Warrants
represented by such Debt Warrant Certificate are exercised, a new Debt Warrant
Certificate will be issued for the remaining amount of Debt Warrants.
PREFERRED STOCK WARRANTS
GENERAL. Reference is made to the applicable Prospectus Supplement for the
terms of Preferred Stock Warrants in respect of which this Prospectus is being
delivered, the Preferred Stock Warrant Agreement relating to such Preferred
Stock Warrants and the Preferred Stock Warrant Certificates representing such
Preferred Stock Warrants, including the following: (i) the designation and terms
of the shares of Preferred Stock purchasable upon exercise of such Preferred
Stock Warrants and the procedures and conditions relating to the exercise of
such Preferred Stock Warrants; (ii) the designation and terms of any related
shares of Preferred Stock with which such Preferred Stock Warrants are issued
and the number of such Preferred Stock Warrants issued with each such share of
Preferred Stock; (iii) the date, if any, on and after which such Preferred Stock
Warrants and the related shares of Preferred Stock will be separately tradeable;
(iv) the offering price of such Preferred Stock Warrants, if any; (v) the number
of shares of Preferred Stock purchasable upon exercise of such Preferred Stock
Warrants and the initial price at which such shares may be purchased upon
exercise; (vi) the date on which the right to exercise such Preferred Stock
Warrants shall commence and the date on which such right shall expire; (vii) a
discussion of the material United States Federal income tax considerations
applicable to the exercise of Preferred Stock Warrants; (viii) call provisions
of such Preferred Stock Warrants, if any; and (ix) any other terms of the
Preferred Stock Warrants.
25
<PAGE>
Prior to the exercise of their Preferred Stock Warrants, holders of
Preferred Stock Warrants will not have any of the rights of holders of Preferred
Stock purchasable upon such exercise, and will not be entitled to any dividend
payments on the Preferred Stock purchasable upon such exercise.
EXERCISE OF STOCK WARRANTS. Each Preferred Stock Warrant will entitle the
holder to purchase for cash such number of shares of Preferred Stock at such
exercise price as shall in each case be set forth in, or be determinable as set
forth in, the applicable Prospectus Supplement relating to the Preferred Stock
Warrants offered thereby. Unless otherwise specified in the applicable
Prospectus Supplement, Preferred Stock Warrants may be exercised at any time up
to 5:00 p.m. New York City time on the expiration date set forth in the
applicable Prospectus Supplement. After 5:00 p.m. New York City time on the
expiration date, unexercised Preferred Stock Warrants will become void.
Preferred Stock Warrants may be exercised as to be set forth in the
applicable Prospectus Supplement relating to the Preferred Stock Warrants. Upon
receipt of payment and the Preferred Stock Warrant Certificates properly
completed and duly executed at the corporate trust office of the Preferred Stock
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, New Disney will, as soon as practicable, forward a certificate
representing the number of shares of Preferred Stock purchasable upon such
exercise. If less than all of the Preferred Stock Warrants represented by such
Preferred Stock Warrant Certificate are exercised, a new Preferred Stock Warrant
Certificate will be issued for the remaining amount of Preferred Stock Warrants.
PLAN OF DISTRIBUTION
New Disney may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents or dealers. Any such underwriter, agent or dealer involved in the
offer and sale of the Securities will be named in an applicable Prospectus
Supplement. Securities offered pursuant to a particular Prospectus Supplement
are referred to herein as "Offered Securities."
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. New Disney also may, from time to time, authorize
underwriters acting as its agents to offer and sell the Offered Securities upon
the terms and conditions set forth in any Prospectus Supplement. In connection
with the sale of Offered Securities, underwriters may be deemed to have received
compensation from New Disney in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of Offered
Securities for whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions (which may be changed from time to time) from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by New Disney to underwriters or agents
in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in an applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Offered Securities may be
deemed to be underwriters under the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the
Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Underwriters, dealers and agents may be entitled,
under agreements with New Disney and, under certain circumstances, Disney, to
indemnification against and contribution toward certain civil liabilities,
including liabilities, under the Securities Act, and to reimbursement by New
Disney and, under certain circumstances, Disney for certain expenses.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, New Disney will sell such Securities to such
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
26
<PAGE>
If so indicated in an applicable Prospectus Supplement, New Disney will
authorize dealers acting as its agents to solicit offers by certain institutions
to purchase Offered Securities from New Disney at the public offering price set
forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated in
such Prospectus Supplement. Each Contract will be for an amount not less than,
and the aggregate principal amount of Offered Securities sold pursuant to
Contracts shall not be less nor more than, the respective amounts stated in such
Prospectus Supplement. Institutions with whom Contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of New Disney.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Offered Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Offered Securities
are being sold to underwriters, New Disney shall have sold to such underwriters
the total principal amount of the Offered Securities less the principal amount
thereof covered by Contracts. Agents and underwriters will have no
responsibility in respect of the delivery or performance of Contracts.
The Securities may or may not be listed on a national securities exchange or
a foreign securities exchange. No assurances can be given that there will be a
market for any of the Securities.
LEGAL MATTERS
Certain legal matters with respect to the legality of the Securities being
offered hereby will be passed upon for New Disney and Disney by Skadden, Arps,
Slate, Meagher & Flom, Los Angeles, California.
EXPERTS
The consolidated financial statements and related schedules of Disney
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
for the year ended September 30, 1994 have been so incorporated in reliance on
the report of Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The consolidated financial statements and related schedule of Capital Cities
incorporated in this Prospectus by reference to the Capital Cities Annual Report
on Form 10-K for the year ended December 31, 1994 have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports therein and
incorporated herein by reference. Such consolidated financial statements and
schedule are incorporated herein by reference in reliance upon such reports,
given upon the authority of said firm as experts in auditing and accounting.
27
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All expenses other than the Securities and Exchange Commission filing fees
are estimated.
<TABLE>
<S> <C>
SEC registration fee........................................... $1,559,207
Accountants' fees and expenses................................. *
Legal fees and expenses........................................ *
Blue Sky fees and expenses..................................... *
Printing and engraving expenses................................ *
Rating agencies' fees.......................................... *
Trustee's and registrar's fees and expenses.................... *
Miscellaneous.................................................. *
----------
Total:..................................................... $ *
----------
----------
<FN>
------------------------
* To be completed by amendment.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify its directors, officers, employees and agents
under certain circumstances. Disney's Restated Certificate of Incorporation (the
"Disney Certificate") and bylaws and the New Disney Certificate of Incorporation
(together with the Disney Certificate, the "Certificates") and bylaws (together
with Disney's bylaws, the "Bylaws") each provide that Disney or New Disney, as
the case may be, shall indemnify to the full extent authorized or permitted by
law (as now or hereafter in effect) any person made, or threatened to be made, a
defendant or a witness to any action, suit or proceeding (whether civil or
criminal or otherwise) by reason of the fact that he, his testator or intestate,
is or was a director or officer of Disney or New Disney, as the case may be, or
by reason of the fact that such director or officer, at the request of Disney or
New Disney, as the case may be, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. The Certificates and Bylaws further provide that Disney or New
Disney, as the case may be, may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of Disney or New
Disney, as the case may be, or is serving at the request of Disney or New
Disney, as the case may be, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not Disney or
New Disney, as the case may be, would have the power to indemnify him against
such liability under the provisions of law. In addition, the Certificates and
Bylaws provide that Disney or New Disney, as the case may be, may create a trust
fund, grant a security interest and/ or use other means (including, without
limitation, letters of credit, surety bonds and/or similar arrangements), as
well as enter into contracts providing for indemnification to the full extent
authorized or permitted by law and including as part thereof provisions with
respect to any and all of the foregoing to ensure the payment of such amounts as
may become necessary to effect indemnification as provided therein, or
elsewhere. Moreover, the Certificates further provide that no director of Disney
or New Disney, as the case may be, shall be personally liable to Disney (or New
Disney, as the case may be) or its stockholders for monetary damages for any
breach of fiduciary duty as a director, except a director shall be liable to the
extent provided by applicable law (i) for any breach of the director's duty of
loyalty to Disney (or New Disney, as the case may be) or its stockholder; (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (iii) for liability under Section 174 of the DGCL
(involving certain unlawful dividends or stock repurchases); or (iv) for any
transaction from which the director derived an improper personal benefit.
II-1
<PAGE>
Each of Disney and New Disney maintains an officer's and director's
liability insurance policy insuring its officers and directors against certain
liabilities and expenses incurred by them in their capacities as such, and
insuring Disney or New Disney, as the case may be, under certain circumstances,
in the event that indemnification payments are made by Disney to such officers
and directors.
Disney has entered into indemnification agreements (the "Indemnification
Agreements") with certain of its directors and officers (individually, the
"Indemnitee"). The Indemnification Agreements, among other things, provide for
indemnification to the fullest extent permitted by law against any and all
expenses, judgments, fines, penalties and amounts paid in settlement of any
claim. The Indemnification Agreements provide for the prompt advancement of all
expenses to the Indemnitee and for reimbursement to Disney if it is found that
such Indemnitee is not entitled to such indemnification under applicable law.
The Indemnification Agreements also provide that after a Change in Control (as
defined in the Indemnification Agreements) of Disney which is not approved by
the Disney Board of Directors, all determinations regarding a right to indemnity
and the right to advancement of expenses shall be made by independent legal
counsel selected by the Indemnitee and approved by the Board of Directors. In
addition, the event of a Potential Change In Control (as defined in the
Indemnification Agreements), the Indemnitee may require Disney to establish a
trust for his or her benefit and to fund such trust in amounts reasonably
anticipated or proposed to be paid to satisfy Disney's indemnification
obligations under the Indemnification Agreements.
New Disney expects to enter into substantially identical indemnification
agreements with certain of its directors and officers.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
--------- ---------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to
Debt Securities.
*1.2 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to
Preferred Stock.
1.3 Form of Distribution Agreement between Disney, New Disney and the Agent(s) with respect to Debt
Securities.
*2.1 Amended and Restated Agreement and Plan of Reorganization, dated as of July 31, 1995, between
Disney and Capital Cities.
*2.2 Agreement and Plan of Merger, dated as of , among New Disney, DCA Merger Corp. and Disney.
4.1 Form of Senior Debt Securities Indenture, dated as of , 1995 between New Disney, Disney, as
Guarantor, and , as Trustee (including form of Debt Guarantee by Disney).
4.2 Form of Senior Subordinated Debt Securities Indenture, dated as of , 1995, between New
Disney, Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney).
4.3 Form of Subordinated Debt Securities Indenture, dated as of , 1995 between New Disney,
Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney).
*4.4 Form of Debt Securities Warrant Agreement (including form of Debt Warrant Certificate).
*4.5 Form of Preferred Stock Warrant Agreement (including Form of Preferred Stock Warrant Certificate).
4.6 Form of Deposit Agreement (including form of Depositary Receipts).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
--------- ---------------------------------------------------------------------------------------------------
<C> <S>
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the Securities.
12.1 Computation of Ratio of Earnings to Fixed Charges.
*12.2 Computation of Pro Forma Combined Ratio of Earnings to Fixed Charges.
*23.1 Consent of Skadden, Arps, Slate, Meagher & Flom (included in their opinion filed as Exhibit 5.1).
23.2 Consent of Independent Accountants (Price Waterhouse LLP).
23.3 Consent of Independent Auditors (Ernst & Young LLP).
24 Powers of Attorney (included on pages II-5 and II-7).
*25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee
under the Senior Debt Securities Indenture.
*25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee
under the Senior Subordinated Debt Securities Indenture.
*25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee
under the Subordinated Debt Securities Indenture.
*99 Consents of persons to be named directors of New Disney.
<FN>
------------------------
* To be filed by amendment
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrants each hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants each hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of an annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, each Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a Registrant of expenses
incurred or paid by a director, officer or controlling person of such Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, such Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling
II-3
<PAGE>
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(d) The undersigned Registrants hereby undertake to file an application for
the purpose of determining the eligibility of trustees to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Securities Act.
II-4
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Sanford
M. Litvack, Stephen F. Bollenbach and David K. Thompson his or her true and
lawful attorney-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of Burbank, State of California, on the 19th day of
September, 1995.
THE WALT DISNEY COMPANY
By /s/ MICHAEL D. EISNER
--------------------------------------
Michael D. Eisner
CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------------ -------------------------------- -----------------------
<C> <S> <C>
/s/ MICHAEL D. EISNER
------------------------------------------- Chairman of the Board and Chief September 19, 1995
(Michael D. Eisner) Executive Officer
/s/ STEPHEN F. BOLLENBACH Senior Executive Vice President
------------------------------------------- and Chief Financial Officer and September 19, 1995
(Stephen F. Bollenbach) a Director
/s/ SANFORD M. LITVACK Senior Executive Vice President
------------------------------------------- and Chief of Corporate September 19, 1995
(Sanford M. Litvack) Operations and a Director
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------------ -------------------------------- -----------------------
<C> <S> <C>
/s/ JOHN J. GARAND Senior Vice President --
------------------------------------------- Planning and Control (Chief September 19, 1995
(John J. Garand) Accounting Officer)
/s/ REVETA F. BOWERS
------------------------------------------- Director September 19, 1995
(Reveta F. Bowers)
/s/ ROY E. DISNEY
------------------------------------------- Director September 19, 1995
(Roy E. Disney)
/s/ STANLEY P. GOLD
------------------------------------------- Director September 19, 1995
(Stanley P. Gold)
/s/ IGNACIO E. LOZANO, JR.
------------------------------------------- Director September 19, 1995
(Ignacio E. Lozano, Jr.)
/s/ GEORGE J. MITCHELL
------------------------------------------- Director September 19, 1995
(George J. Mitchell)
/s/ RICHARD A. NUNIS
------------------------------------------- Director September 19, 1995
(Richard A. Nunis)
/s/ SIDNEY POITIER
------------------------------------------- Director September 19, 1995
(Sidney Poitier)
/s/ IRWIN E. RUSSELL
------------------------------------------- Director September 19, 1995
(Irwin E. Russell)
/s/ ROBERT A.M. STERN
------------------------------------------- Director September 18, 1995
(Robert A.M. Stern)
/s/ E. CARDON WALKER
------------------------------------------- Director September 19, 1995
(E. Cardon Walker)
/s/ RAYMOND L. WATSON
------------------------------------------- Director September 14, 1995
(Raymond L. Watson)
/s/ GARY L. WILSON
------------------------------------------- Director September 19, 1995
(Gary L. Wilson)
</TABLE>
II-6
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Sanford
M. Litvack, Stephen F. Bollenbach and David K. Thompson his or her true and
lawful attorney-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of Burbank, State of California, on the 19th day of
September, 1995.
DC HOLDCO, INC.
By /s/ SANFORD M. LITVACK
-----------------------------------
Sanford M. Litvack
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------- --------------------------------- ------------------
<C> <S> <C>
/s/ SANFORD M.
LITVACK President and a Director September 19, 1995
-------------------------
(Sanford M. Litvack)
/s/ STEPHEN F. Senior Executive Vice President,
BOLLENBACH Chief Financial Officer and September 19, 1995
------------------------- Treasurer
(Stephen F. Bollenbach)
/s/ JOHN J. Senior Vice President -- Planning
GARAND and Control (Chief Accounting September 19, 1995
------------------------- Officer)
(John J. Garand)
/s/ DAVID K.
THOMPSON Director September 19, 1995
-------------------------
(David K. Thompson)
/s/ MARSHA L.
REED Director September 19, 1995
-------------------------
(Marsha L. Reed)
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
--------- ------------------------------------------------------------------------------------------------- -----
<C> <S> <C>
1.1 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to
Debt Securities.................................................................................
*1.2 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to
Preferred Stock.................................................................................
1.3 Form of Distribution Agreement between Disney, New Disney and the Agent(s) with respect to Debt
Securities......................................................................................
*2.1 Amended and Restated Agreement and Plan of Reorganization, dated as of July 31, 1995, between
Disney and Capital Cities
*2.2 Agreement and Plan of Merger, dated as of , among New Disney, DCA Merger Corp. and Disney
4.1 Form of Senior Debt Securities Indenture, dated as of , 1995 between New Disney, Disney, as
Guarantor, and , as Trustee (including form of Debt Guarantee by Disney)....................
4.2 Form of Senior Subordinated Debt Securities Indenture, dated as of , 1995, between New
Disney, Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by
Disney).........................................................................................
4.3 Form of Subordinated Debt Securities Indenture, dated as of , 1995 between New Disney,
Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney).....
*4.4 Form of Debt Securities Warrant Agreement (including form of Debt Warrant Certificate)...........
*4.5 Form of Preferred Stock Warrant Agreement (including Form of Preferred Stock Warrant
Certificate)....................................................................................
4.6 Form of Deposit Agreement (including form of Depositary Receipts)................................
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the Securities
12.1 Computation of Ratio of Earnings to Fixed Charges................................................
*12.2 Computation of Pro Forma Combined Ratio of Earnings to Fixed Charges
*23.1 Consent of Skadden, Arps, Slate, Meagher & Flom (included in their opinion filed as Exhibit 5.1)
23.2 Consent of Independent Accountants (Price Waterhouse LLP)........................................
23.3 Consent of Independent Auditors (Ernst & Young LLP)..............................................
24 Powers of Attorney (included on pages II-5 and II-7)
*25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as
Trustee under the Senior Debt Securities Indenture
*25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as
Trustee under the Senior Subordinated Debt Securities Indenture
*25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as
Trustee under the Subordinated Debt Securities Indenture
*99 Consents of persons to be named directors of New Disney
<FN>
------------------------
* To be filed by amendment
</TABLE>
<PAGE>
Exhibit 1.1
UNDERWRITING AGREEMENT
[ ]
DC Holdco, Inc.
500 South Buena Vista Street
Burbank, California 91521
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the ("Underwriter")), and we understand that DC Holdco,
Inc., a Delaware corporation (the "Company") proposes to issue and sell [Curren-
cy and Principal Amount] aggregate initial offering price of [Full Title of Debt
Securities] (the "Debt Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the principal amount of Debt Securities
set forth below opposite their names at a purchase price of _____% of the
principal amount of Debt Securities [plus accrued interest, if any, from
__________, 199_):(1)]
Principal Amount of
Name Debt Securities
---- -------------------
[Lead Underwriter] $ [ ]
[Insert syndicate list] [ ]
----------------
$
----------------
----------------
____________________
(1) To be added only if transaction does not close flat.
<PAGE>
The Underwriters will pay for the Debt Securities upon delivery
thereof at [office] at _____ a.m. (New York time) on ____________, 199__, or at
such other time, not later than 5:00 p.m. (New York time) on ____________,
199__, as shall be designated by the Manager. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
The Debt Securities shall have the terms set forth in the Prospectus
dated _________, 1995, the Prospectus Supplement dated _________, 199_, and the
Term Sheet dated ________ 199_ including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: __________ and __________ commencing
____________, 199__ [(interest accrues from
_________, 199_)](2)
Form and Denomination:
Ranking: The Debt Securities will be [senior/senior
subordinated/subordinated] indebtedness of
the Company issued under the [Senior/Senior
Subordinated/Subordinated] Indenture dated as
of ___________, 1995 (the "Indenture"), by
and among the Company, as issuer, The Walt
Disney Company ("Disney"), as guarantor, and
______________, as trustee (the "Trustee").
____________________
(2) To be added if transaction does not close flat.
2
<PAGE>
[Guaranty: The Debt Securities will be guaranteed by
Disney on a senior/senior subordinat-
ed/subordinated basis.(3)]
All provisions contained in the document entitled DC Holdco, Inc.
Underwriting Agreement Standard Provisions (Debt Securities) dated ____________,
1995, a copy of which is attached hereto, are hereby incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[LEAD UNDERWRITER]
[NAME OF OTHER LEAD MANAGERS],
acting Severally on behalf of themselves and the
several Underwriters named herein
BY: [LEAD UNDERWRITER]
By: ________________________
Name:
Title:
Accepted:
DC HOLDCO, INC.
By:______________________
Name:
Title:
____________________
(3) To be included only if the Debt Securities are to be guaranteed by The Walt
Disney Company.
3
<PAGE>
THE WALT DISNEY COMPANY(4)
By:______________________
Name:
Title:
____________________
(4) To be included only if the Debt Securities are to be guaranteed by Disney.
4
<PAGE>
DC HOLDCO, INC.
[THE WALT DISNEY COMPANY]
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
___________, 1995
From time to time, DC Holdco, Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement." Terms defined in the Underwriting Agreement
are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus, which among
other things, relates to the Debt Securities and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing to,
the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Debt Securities, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), and/or a term sheet
or an abbreviated term sheet (each a "Term Sheet"), pursuant to Rule 434 under
the Securities Act, specifically relating to the Debt Securities. The Debt
Securities may be guaranteed by The Walt Disney Company, a Delaware corporation
("Disney").(1) The term Registration Statement means the registration statement
as amended to the date of this Agreement. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with the Prospectus Supplement and Term Sheet, if
____________________
(1) Each reference to Disney will be included only if the Debt Securities are
guaranteed by Disney.
<PAGE>
any. The term preliminary prospectus means a preliminary prospectus supplement
specifically relating to the Debt Securities together with the Basic Prospectus.
As used herein, the term Incorporated Documents shall mean all the documents,
financial statements and schedules incorporated by reference therein or deemed
to be incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act, and any reference to any amendment or supplement to the
Registration Statement or the Prospectus shall be deemed to refer to and include
any documents, financial statements and schedules filed by the Company, Disney
[or Capital Cities/ABC, Inc. ("Capital Cities")] with the Commission under the
1934 Act and so incorporated by reference or deemed to be incorporated therein.
Notwithstanding the foregoing, for purposes of this Agreement any prospectus,
prospectus supplement, term sheet or abbreviated term sheet prepared or filed
with respect to an offering pursuant to the Registration Statement of a series
of securities other than the Debt Securities shall not be deemed to have
supplemented the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company [and Disney, jointly and
severally,] represents and warrants to each of the Underwriters that:
(a) The Incorporated Documents, when they became effective or were
filed (or, if an amendment with respect to any such Incorporated Document
was filed or became effective, when such amendment was filed or became
effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act, and any
Incorporated Documents filed subsequent to the date of the Underwriting
Agreement and prior to the Closing Date, will, when they are filed with
the Commission, comply in all material respects with the requirements of
the 1934 Act; no such Incorporated Document, when it became effective or
was filed (or, if an amendment with respect to any such incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, contained, and no Incorporated
Document filed subsequent to the date of the Underwriting Agreement and
prior to the termination of the offering of the Debt Securities will
contain, 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.
(b) The Registration Statement, at the time it became effective,
complied in all material respects with the provisions of the 1933 Act and
the 1933 Act Regulations; as of the date of the Underwriting Agreement,
the
2
<PAGE>
Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied in all material respects with the provisions
of the 1933 Act and the 1933 Act Regulations; and the Registration
Statement and the Prospectus, and any such supplement or amendment
thereto, at all such times 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 to make the statements therein, in light
of the circumstances under which they were made, not misleading; except
that this representation and warranty does not apply to statements or
omissions in the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, made in
reliance upon information furnished to the Company in writing by or on
behalf of the Underwriters expressly for use therein or to those parts of
the Registration Statement which constitute the Trustee's Statement of
Eligibility and Qualification on Form T-1 under the 1939 Act (the "Form
T-1"). There is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or
filed as required.
(c) This Agreement, the Indenture and the Debt Securities [including
the related guaranty thereof by Disney (the "Guarantees")] have been
duly authorized by the Company [and Disney] and conform in all material
respects to the descriptions thereof in the Prospectus.
(d) The Indenture (assuming due execution and delivery thereof by the
Trustee) is, and the Debt Securities [and the Guarantees] (when executed
by the Company [and Disney, respectively,] and authenticated in
accordance with the Indenture and delivered to and paid for by the
Underwriters) will be, the legal, valid and binding obligations of the
Company [and Disney], enforceable against the Company [and Disney] in
accordance with their respective terms, except as such enforceability may
be limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the enforcement of creditors' rights generally, (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), (C) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a judgment denominated other than in United States dollars in
respect of such claim) be converted into United States dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law
and (D) governmental
3
<PAGE>
authority to limit, delay or prohibit the making of payments outside the
United States or in a foreign currency or composite currency. The Debt
Securities [and the related Guarantees] (when executed by the Company
[and Disney, respectively] and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Underwriters) will
be entitled to the benefits of the Indenture (subject to the exceptions
set forth in the preceding sentence).
(e) The Company [and Disney each] is a validly existing corporation
in good standing under the laws of Delaware. The Company [and Disney
each] has full corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Prospectus; and the Company [and Disney each] is duly
qualified as a foreign corporation to transact business and is in good
standing 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 would not have a
material adverse effect on the consolidated financial condition or
earnings of the Company [Disney] and its subsidiaries, considered as one
enterprise.
(f) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus there has not been any material adverse
change in the consolidated financial condition or earnings of the Company
[Disney] and its subsidiaries, considered as one enterprise.
(g) [Neither] the Company [nor Disney] is [not] in violation of its
Certificate of Incorporation or Bylaws. The execution and delivery of
this Agreement by the Company [and Disney], the issuance and sale of the
Debt Securities [and the related Guarantees] and the performance by the
Company [and Disney] of its [their] obligations under this Agreement and
the Indenture will not conflict with or constitute a breach of or a
default (with the passage of time or otherwise) under (A) the Certificate
of Incorporation or Bylaws of the Company [or Disney], (B) subject to the
Company's [or Disney's, as the case may be,] compliance with any
applicable covenants pertaining to its incurrence of unsecured
indebtedness contained therein, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company [or
Disney] is a party or
4
<PAGE>
by which it may be bound, or to which any of the properties or assets of
the Company [or Disney] is subject, which breach or default would, singly
or in the aggregate, reasonably be expected to have a material adverse
effect on the consolidated financial condition or earnings of the Company
[Disney] and its subsidiaries, considered as one enterprise, or (C) any
applicable law, administrative regulation or administrative or court
decree. Except for orders, permits and similar authorizations required
under or by the securities or Blue Sky laws of certain jurisdictions, any
securities exchange on which any of the Debt Securities might be listed
or with respect to Debt Securities which are to be indexed or linked to
any foreign currency, composite currency, commodity, equity index or
similar index, no consent, approval, authorization or other order of any
regulatory body, administrative agency or other governmental body is
legally required for the valid issuance and sale of the Debt Securities.
As of the date of the Underwriting Agreement, the delivery of Debt
Securities [and related Guarantees] by the Company [and Disney,
respectively], and the Company [and Disney] by such acceptance or
delivery, as the case may be, shall be deemed to [jointly and severally]
represent and warrant to the Underwriters that, both immediately before
and immediately after giving effect to such acceptance or delivery, the
Company [and Disney] shall be in compliance with the requirements of any
applicable covenants pertaining to its incurrence of unsecured
indebtedness contained in the agreements or instruments referred to in
clause (B) above.
(h) To the best of the Company's [and Disney's] knowledge, the
accountants who have audited and reported upon the financial statements
filed with the Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the 1933 Act. The
financial statements included in the Registration Statement or Prospectus
or incorporated therein by reference fairly present the consolidated
financial position and results of operations of the Company [Disney] and
its subsidiaries at the respective dates and for the respective periods
to which they apply. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied, except as set forth in the Registration Statement and
Prospectus.
(i) Each of [ ] (collectively the "Significant Subsidiaries") is
a validly existing corporation in good standing in the state of its
incorporation. Each of the Significant Subsidiaries has full corporate
power and authority to own, lease and operate its properties and to
conduct its
5
<PAGE>
business as presently conducted and as described in the Prospectus; and
each of the Significant Subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in each United
States jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where a failure to so qualify would not have a material
adverse effect on the consolidated financial condition or earnings of the
Company [Disney] and its subsidiaries, considered as one enterprise.
(j) The Company [and Disney, each] has complied with, and is and will
be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
or is exempt therefrom.
2. PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Debt Securities as soon after this Agreement has been entered into as in the
Manager's judgment is advisable. The terms of the public offering of the Debt
Securities have been provided by the Manager to the Company and are in all
material respects completely set forth in the Prospectus.
3. PURCHASE AND DELIVERY Except as otherwise provided in this Section 3,
payment for the Debt Securities shall be made by wire transfer, of immediately
available funds, by the Underwriters to the order of the Company, at the time
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Debt Securities, regis-
tered in such names and in such denominations as the Manager shall request in
writing not less than two full business days prior to the date of delivery, with
any transfer taxes payable in connection with the sale of the Debt Securities to
the Underwriters duly paid.
Delivery on the Closing Date of any Debt Securities that are in bearer
form shall be effected by delivery of a single temporary global Debt Security
without coupons (the "Global Debt Security") evidencing the Debt Securities that
are Debt Securities in bearer form to a common depositary for Morgan Guaranty
Trust Company of New York, Brussels office, as operator of the Euro-clear System
("Euro-clear"), and for Centrale de Livraison de Valeurs Mobilieres S.A.
("CEDEL") for credit to the respective accounts at Euro-clear or CEDEL of each
Underwriter or to such other accounts as such Underwriter may direct. Any
6
<PAGE>
Global Debt Security shall be delivered to the Manager not later than the
Closing Date, against payment of funds to the Company in the net amount due to
the Company for such Global Debt Security by the method and in the form set
forth herein. The Company shall cause definitive Debt Securities in bearer form
to be prepared and delivered in exchange for such Global Debt Security in such
manner and at such time as may be provided in or pursuant to the Indenture;
provided, however, that the Global Debt Security shall be exchangeable for
definitive Debt Securities in bearer form only on or after the date specified
for such purpose in the Prospectus.
4. CONDITIONS TO CLOSING The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) OPINION OF COUNSEL TO COMPANY. On the Closing Date, the
Underwriters shall have received an opinion from Skadden, Arps, Slate,
Meagher & Flom, counsel to the Company, dated as of the Closing Date and
in form and substance satisfactory to counsel for the Underwriters to the
effect that:
(i) The Company [Disney] and each of the Significant Subsidiaries is
a corporation validly existing and in good standing under the laws of its
state of incorporation.
(ii) The Company [and Disney each] has full corporate power and
corporate authority to enter into and perform its obligations under this
Agreement and the Indenture [and, in the case of the Company,] to borrow
money as contemplated in this Agreement and the Indenture, and to issue,
sell and deliver the Debt Securities.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company [and Disney].
(iv) The Indenture has been duly authorized, executed and delivered by
the Company [and Disney] and (assuming due authorization, execution and
delivery by the Trustee) is a valid and binding agreement of the Company
[and Disney] enforceable against the Company [and Disney] in accordance
with its terms, except that such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of whether
enforcement is
7
<PAGE>
sought in a proceeding in equity or at law) and (C) as to Section 6.2 of
the Indenture.
(v) No consent or approval of any United States governmental
authority or other United States person or United States entity is
required in connection with the issuance or sale of the Debt Securities
other than registration thereof under the 1933 Act, qualification of the
Indenture under the 1939 Act, and such registrations or qualifications as
may be necessary under the securities or Blue Sky laws of the various
United States jurisdictions in which the Debt Securities are to be
offered or sold.
(vi) [(a.)] The Debt Securities, when executed by the Company and
authenticated in accordance with the terms of the Indenture (assuming the
due authorization, execution and delivery of the Indenture by the
Trustee) and issued to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law)[; and
(b.) The Guarantees, when executed by Disney and authenticated in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee)
and issued to and paid for by the purchasers thereof, will be entitled to
the benefits of the Indenture and will be valid and binding obligations
of Disney enforceable against Disney in accordance with their
respective terms, except that such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law)].
(vii) The Registration Statement has become effective under the 1933
Act and the Indenture has been qualified under the 1939 Act, and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated.
8
<PAGE>
(viii) The execution and delivery of this Agreement and the Indenture by
the Company [and Disney], the issuance and sale of the Debt Securities
[and Guarantees] and the fulfillment of this Agreement and the Indenture
by the Company [and Disney] will not conflict with or constitute a breach
of or a default (with the passage of time or otherwise) under (A) the
Certificate of Incorporation or Bylaws of the Company [or Disney], (B)
any statute, law or regulation to which the Company [or Disney] or any of
its [respective] properties may be subject or (C) any judgment, decree or
order, known to such counsel, of any court or governmental agency or
authority entered in any proceeding to which the Company [or Disney] was
or is now a party or by which it is bound; provided, that such counsel
may state that (1) the opinion set forth in clause (B) of this paragraph
(viii) is limited to those United States statutes, laws or regulations
currently in effect which, in such counsel's experience, are normally
applicable to transactions of the type contemplated by this Agreement,
and (2) no opinion is expressed as to the securities or Blue Sky laws of
the various jurisdictions in which the Debt Securities are to be offered
and (3) no opinion is expressed with respect to such clause (B) with
respect to Debt Securities [and the related Guarantees] which are
indexed or linked to any foreign currency, composite currency, commodity,
equity index or similar index.
(ix) The Registration Statement, as of the date it became effective,
and the Prospectus, as of the date of the Underwriting Agreement, appear
on their face to be appropriately responsive in all material respects to
the requirements of the 1933 Act, except that in each case such counsel
need not express an opinion as to (i) the Incorporated Documents, (ii)
the financial statements and schedules and other financial data included
or incorporated by reference therein or (iii) the Form T-1.
(x) The statements in the Prospectus under the caption "Description
of the Debt Securities," insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are in all
material respects accurate summaries of such provisions.
In rendering the opinions set forth above, such counsel may state
that (1) with respect to paragraphs (iv) and (vi), such enforcement may
be limited by (i) requirements that a claim with respect to any Debt
Securities denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such claim)
be
9
<PAGE>
converted into United States dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law and (ii) governmental
authority to limit, delay or prohibit the making of payments outside the
United States or in foreign currency or composite currency; and (2) with
respect to paragraphs (iv), (v) and (vi), no opinion is expressed thereto
with respect to any Debt Securities that are to be indexed or linked to
any foreign currency or composite currency, commodity, equity index or
similar index.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
counsel employed by the Company, representatives of the independent
public accountants for the Company, representatives of the Underwriters
and counsel for the Underwriters, at which conferences the contents of
the Registration Statement and Prospectus and related matters were
discussed and, although such counsel is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus
and have not made any independent check or verification thereof, on the
basis of the foregoing, no facts have come to such counsel's attention
that lead them to believe that either the Registration Statement
(excluding the Incorporated Documents) 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 the Prospectus (excluding
the Incorporated Documents) as of the date of the Underwriting Agreement
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
such counsel need express no opinion with respect to (i) the Incorporated
Documents, (ii) the financial statements, schedules and other financial
data included or incorporated by reference in the Registration Statement
or the Prospectus or (iii) the Form T-1.
(b) OPINION OF COUNSEL EMPLOYED BY COMPANY. On the Closing Date, the
Underwriters shall have received an opinion from David K. Thompson,
Senior Vice President-Assistant General Counsel or from other counsel
employed by the Company (provided that such counsel is a more
10
<PAGE>
senior officer of the Company), dated as of the date hereof and in form
and substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) Except as set forth in the Prospectus (including the Incorporated
Documents), there is not pending or, to the best of such counsel's
knowledge, after reasonable inquiry, threatened any action, suit or
proceeding against the Company [Disney] or any of its subsidiaries before
or by any court or governmental agency or body, which is likely (to the
extent not covered by insurance) to have a material adverse effect on the
consolidated financial condition or earnings of the Company [Disney] and
its subsidiaries, considered as one enterprise.
(ii) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or
filed as required.
(iii) To the best of such counsel's knowledge, after reasonable
inquiry, [neither] the Company [nor Disney] is [not] in violation of its
Certificate of Incorporation or Bylaws.
(iv) To the best of such counsel's knowledge, after reasonable
inquiry, (x) the execution and delivery, and (y) the performance, of this
Agreement and the Indenture will not conflict with or constitute a breach
of, or default (with the passage of time or otherwise) under, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company [or Disney] is a party or by which
it may be bound, or to which any of the property or assets of the Company
[Disney] or any of its subsidiaries is subject.
(v) The Incorporated Documents, as of the date of the Underwriting
Agreement, complied as to form in all material respects with the
requirements of the 1933 Act, except that in each case such counsel need
not express an opinion as to the financial statements and schedules and
other financial data included or incorporated by reference therein.
In addition, such counsel shall state that nothing has come to
such counsel's attention that leads him to believe that either the
Registration Statement (including the Incorporated Documents) at the time
such Regis-
11
<PAGE>
tration 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 the
Prospectus (including the Incorporated Documents) as of the date of the
Underwriting Agreement 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, in light of the circumstances
under which they were made, not misleading, except that such counsel need
express no opinion with respect to the financial statements, schedules
and other financial data included or incorporated by reference in the
Registration Statement or Prospectus or with respect to the Form T-1.
(c) OPINION OF UNDERWRITERS' COUNSEL. On the Closing Date, the
Underwriters shall have received an opinion from [ ],
counsel to the Underwriters, dated as of the Closing Date and in form and
substance satisfactory to the Underwriters.
(d) OFFICER'S CERTIFICATE. [a] On the Closing Date the Underwriters
shall have received a certificate signed by an officer of the Company,
dated the Closing Date, to the effect that (i) the representations and
warranties of the Company contained in Section 1. hereof are true and
correct in all material respects with the same force and effect as though
expressly made at and as of the date of such certificate, (ii) the
Company has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed
or satisfied at or prior to the date of such certificate and (iii) 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 officer's knowledge, threatened by the Commission.
The Officers Certificate shall further state that except as contemplated
in the Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Date, there shall
not have been, since the date of the most recent consolidated financial
statements of the Company included or incorporated by reference in the
Prospectus, any material adverse change in the consolidated financial
condition or earnings of the Company and its subsidiaries, considered as
one enterprise [;
12
<PAGE>
[b] On the Closing Date the Underwriters shall have received a
certificate signed by an officer of Disney, dated the Closing Date, to
the effect that (i) the representations and warranties of Disney
contained in Section 1(a) hereof (other than Section 1(a)(vii)) are true
and correct in all material respects with the same force and effect as
though expressly made at and as of the date of such certificate and (ii)
Disney has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed
or satisfied at or prior to the date of such certificate. The Officer's
Certificate shall further state that except as contemplated in the
Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Closing Date,
there shall not have been, since the date of the most recent consolidated
financial statements of Disney included or incorporated by reference in
the Prospectus, any material adverse change in the consolidated financial
condition or earnings of Disney and its subsidiaries, considered as one
enterprise].
(e) COMFORT LETTER. On the Closing Date, the Underwriters shall have
received a letter from the Company's [Disney's] [and Capital Cities']
independent certified public accountants, dated as of the Closing Date
and in form and substance reasonably satisfactory to the Underwriters.
(f) OTHER DOCUMENTS. On the Closing Date counsel to the Underwriters
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 Debt Securities 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 4 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by any of the Underwriters (as to itself only), except that the covenants set
forth in Section 5(f) hereof, the indemnity and contribution agreement set
forth in Sections 6, 7, 8 and 9 hereof and the provisions of Section 13 hereof
shall remain in effect.
5. COVENANTS OF THE COMPANY [AND DISNEY]. In further consideration of the
agreements of the Underwriters contained herein, the Company [and Disney,
jointly and severally,] covenants as follows:
13
<PAGE>
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Manager
promptly of (i)the effectiveness of any post-effective amendment to the
Registration Statement (other than a post-effective amendment relating
solely to an offering of securities other than the Debt Securities),
(ii) the transmittal to the Commission for filing of any supplement to
the Prospectus (other than a Pricing Supplement or a supplement relating
solely to an offering of debt securities other than the Debt Securities),
(iii) the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus (other than any comments
relating solely to an offering of securities other than the Debt Secu-
rities), (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information (other than any such request relating
solely to an offering of securities other than the Debt Securities) and
(v) 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. The Company will make every reasonable
effort to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the lifting thereof at the earliest
possible time unless the Company shall, in its sole discretion, determine
that it is not in its best interest to do so.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. At or prior to the filing
thereof, the Company will give the Manager notice of its intention to
file any additional registration statement with respect to the
registration of additional Debt Securities to be covered by this
Agreement, any amendment to the Registration Statement or any amendment
or supplement to the Prospectus (other than a Pricing Supplement or an
amendment or supplement relating solely to an offering of securities
other than the Debt Securities), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the
Underwriters with copies of any such amendment or supplement or other
documents promptly after the filing thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Underwriters one signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including the Incorporated Documents and any exhibits
filed therewith or incorporated by reference therein) as the Manager may
reasonably request. The Company will furnish to the Underwriter as many
copies of the Prospectus (as amended or supple-
14
<PAGE>
mented) as the Manager shall reasonably request so long as the
Underwriters are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Debt Securities.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. So long as the
Underwriters are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Debt Securities, if any
event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Company, after consultation
with counsel for the Underwriters, 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 light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of counsel for the Company, 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 Regula-
tions, prompt notice shall be given, and confirmed in writing, to the
Manager, and the Company will prepare and file as soon as practicable an
amendment or supplement to the Prospectus so that the Prospectus, as
amended or supplemented, will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein not misleading in light of the circumstances
existing at the time it is delivered to the Underwriters.
(e) COMPLIANCE WITH 1934 ACT; ACCOUNTANTS' CONSENTS. [(x)] The
Company will (i) comply, in a timely manner, with all applicable
requirements under the 1934 Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or
15(d) of the 1934 Act and, if then applicable, of the Company's proxy
statements pursuant to Section 14(a) of the 1934 Act and (ii) use its
best efforts to obtain the written consent of the Company's independent
accountants as to the incorporation by reference in the Registration
Statement of the audited financial statements reported on by them and
contained in the Company's annual reports on Form 10-K under the 1934
Act[; and
(y) Disney will (i) comply, in a timely manner, with all
applicable requirements under the 1934 Act relating to the filing with
the Commission of Disney's reports pursuant to Section 13(a), 13(c) or
15(d) of the 1934 Act and, if then applicable, of Disney's proxy
statements pursuant to Section 14(a) of the 1934 Act and (ii) use its
best efforts to obtain the
15
<PAGE>
written consent of Disney's independent accountants as to the
incorporation by reference in the Registration Statement of the audited
financial statements reported on by them and contained in Disney's
annual reports on Form 10-K under the 1934 Act.]
(f) EARNINGS STATEMENTS. The Company [and Disney] will make
generally available to its security holders, in each case as soon as
practicable but in any event not later than 15 months after the Closing
Date, a consolidated earnings statement (which need not be audited)
covering the twelve-month period beginning after the latest of (i) the
effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to
become effective, (iii) the Company's [Disney's] most recent annual
report on Form 10-K filed with the Commission prior to the Closing Date,
which earnings statement will satisfy the provisions of Section 11(a) of
the 1933 Act. The Company and Disney may elect to rely upon Rule 158
under the 1933 Act and may elect to make such earnings statement
available more frequently than once in any period of twelve months.
(g) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Debt Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Manager may reasonably
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Debt Securities; PROVIDED,
HOWEVER, that the Company will promptly notify the Manager of any
suspension or termination of any such qualifications, and PROVIDED,
FURTHER, that the Company shall not be obligated to register or qualify
as a foreign corporation or take any action which would subject it to
general service of process in any jurisdiction where it is not now so
subject.
6. INDEMNIFICATION OF THE UNDERWRITERS. The Company [and Disney, jointly
and severally,] agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act as follows:
(a) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), as incurred, insofar as such loss, liability, claim,
damage
16
<PAGE>
or expense arises out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement 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 arises out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(b) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), 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 insofar as such loss, liability, claim, damage or expense
arises out of any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company [and Disney]; and
(c) against any and all expense whatsoever (including, subject to the
limitations set forth in subsection (C) below, the reasonable fees and
disbursements of counsel chosen by the Underwriters), 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;
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of or
based upon any untrue statement or omission or alleged untrue statement
or omission made in reliance upon the Form T-1 under the 1939 Act filed
as an exhibit to the Registration Statement; or (B) to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission in the Prospectus if such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in all material
respects in an amendment or supplement to the Prospectus and if, having
previously been furnished by or on behalf of the Company with copies of
the Prospectus, as so amended or supplemented, such Underwriter
thereafter failed to
17
<PAGE>
deliver such Prospectus, as so amended or supplemented, prior to or
concurrently with the sale of the Debt Securities to the person asserting
such loss, liability, claim, damage or expense who purchased such
Debt Securities which are the subject thereof from such Underwriter; or
(C) as to which such Underwriter may be required to indemnify the Company
pursuant to the provisions of subsection (b) of this Section 6.
7. INDEMNIFICATION OF THE COMPANY [AND DISNEY]. Each Underwriter agrees to
indemnify and hold harmless the Company, [Disney] its respective directors, each
of its respective officers who signed the Registration Statement, and each
person, if any, who controls the Company [or Disney] 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 Section 6
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company [or Disney] by such Underwriter expressly for use in
the Registration Statement or the Prospectus.
8. GENERAL. In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Underwriter or any person controlling such Underwriter, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company [and Disney] pursuant to this Section 8, such
Underwriter or controlling person shall promptly notify the Company [and Disney]
in writing, and the Company [or Disney] shall assume the defense thereof,
including the employment of counsel (such counsel to be reasonably acceptable to
such Underwriter) and payment of all expenses. Any such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at the expense of such
Underwriter or such controlling person unless (A) the employment of such counsel
shall have been specifically authorized in writing by the Company [and Disney],
(B) the Company [and Disney] shall have failed to assume the defense and employ
counsel or (C) the named parties to any such action, suit or proceeding
(including any impleaded parties) shall include both such Underwriter or such
controlling person and the Company [or Disney], and such Underwriter or such
controlling person shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from, or additional to,
those available to the Company [or Disney] (in which case, if such Underwriter
18
<PAGE>
or such controlling person notifies the Company [and Disney] in writing that it
elects to employ separate counsel at the expense of the Company [and Disney],
[neither] the Company [nor Disney] shall [not] have the right to assume the
defense of such action, suit or proceeding on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company [and Disney]
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 of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and such controlling persons, which firm
shall be designated in writing by the Manager on behalf of all of such
Underwriters and such controlling persons).
In case any action, suit or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the Company [,
Disney], any of the Company's [or Disney's] directors or officers, or any person
controlling the Company [or Disney], with respect to which indemnity may be
sought against any Underwriter pursuant to this Section 8, such Underwriter
shall have the rights and duties given to the Company [and Disney] by this
Section 8, and the Company [, Disney], the Company's [and Disney's] directors
and officers and any such controlling person shall have the rights and duties
given to the Underwriters by this Section 8.
9. CONTRIBUTION. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Sections 6 and 7
hereof is for any reason held to be unenforceable with respect to the
indemnified parties although applicable in accordance with its terms, the
Company [, Disney] and each Underwriter [, on the other hand,] 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
Underwriters, as incurred, in such proportion as is appropriate to reflect the
relative benefits received by the Company [and Disney] on the one hand and each
of the Underwriters participating in the offering that gave rise to such losses,
liabilities, claims, damages and expenses on the other hand from the offering of
such Debt Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required pursuant to Section 6(c) hereof or
pursuant to the last sentence of this Section 8, then the Company [, Disney] and
each Underwriter shall contribute to such aggregate losses, liabilities, claims,
damages and expenses incurred by the Company and the Underwriters, as incurred,
in such propor-
19
<PAGE>
tion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company [and Disney] on the one hand and each Underwriter
on the other in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company [and Disney] on the one hand and each Underwriter on the other hand in
connection with the offering of such Debt Securities shall be deemed to be in
the same proportion as the total net proceeds from the sale of such Debt
Securities by such Underwriter received by the Company (before deducting
expenses) bear to the total commissions or other compensation or remuneration
received by such Underwriter in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company [(or Disney)] or
such Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
If there is more than one Underwriter in respect of a proceeding, each
Underwriter's obligation to contribute pursuant to this Section 9 shall be
several and not joint, and shall be in the proportion that the principal amount
of the Debt Securities that are the subject of such proceeding and that were
offered and sold through such Underwriter bears to the notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Debt
Securities purchased by or through it were sold exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such 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 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
9, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company [or Disney], each officer of the
Company [or Disney] who sign within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Company [or Disney, as the
case may be]. Any party entitled to contribution pursuant to the first sentence
of this Section 9 will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 9,
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought, from any other obliga-
20
<PAGE>
tion it or they may have otherwise than under this Section 9; PROVIDED, HOWEVER,
that such notice need not be given if such party entitled to contribution
hereunder has previously given notice pursuant to Section 8 hereof with respect
to the same action, suit or proceeding.
10. TERMINATION. The Underwriters may terminate the Underwriting Agreement
immediately upon notice to the Company, at any time prior to the Closing Date if
(i) there has been, since the date of the Underwriting Agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the consolidated financial condition or earnings
of the Company [Disney] and its subsidiaries, considered as one enterprise, (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other calamity or
crisis, the effect of which is such as to make it, in the reasonable judgment of
the Manager, impracticable to market the Debt Securities or to enforce contracts
for the sale of the Debt Securities, (iii) if trading in any securities of the
Company [or Disney] has been suspended (other than pursuant to a request by the
Company [or Disney] with respect to an announcement by the Company [or Disney]
of certain information not constituting a material adverse change, since the
date of the Underwriting Agreement or the respective date as of which
information is given in the Registration Statement, in the consolidated
financial condition or earnings of the Company [Disney] and its subsidiaries,
considered as one enterprise), the effect of which is such as to make it, in the
reasonable judgment of such Underwriter, impracticable to market the Debt
Securities or to enforce contracts for the sale of the Debt Securities, (iv) if
trading generally on the New York Stock Exchange has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities shall have been required, by such exchange or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities or if a banking
moratorium has been declared by the relevant authorities in the country or
countries of origin of any foreign currency or currencies in which the Debt
Securities are denominated or payable or (v) after the date of the Underwriting
Agreement, the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of such Underwriting
Agreement shall have been lowered or any such rating agency shall have publicly
announced that it has placed any debt securities of the Company on what is
commonly termed a "watch list" with negative implications.
21
<PAGE>
11. DEFAULTING UNDERWRITERS. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Debt Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Debt
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Debt Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of Debt Securities set
forth opposite their respective names above bears to the aggregate amount of
Debt Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Debt Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If on the Closing Date
any Underwriter or Underwriters shall fail or refuse to purchase Debt Securities
and the aggregate amount of Debt Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Debt Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Debt Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
12. MISCELLANEOUS. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK WITH RESPECT TO CONTRACTS MADE IN AND TO BE PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
22
<PAGE>
Exhibit 1.3
DC HOLDCO, INC.
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
[ ], 1995
[Investment Banks]
Dear Ladies and Gentlemen:
DC Holdco, Inc., a Delaware corporation (the "Company"), confirms its
agreement with each of [Investment Banks] (each an "Agent" and collectively, the
"Agents") with respect to the issue and sale by the Company of its Medium-Term
Notes (the "Notes"). The Notes are to be issued pursuant to an indenture (the
"Indenture"), dated as of [ ], among the Company, The Walt Disney
Company, a Delaware corporation ("Disney"), as guarantor, and [ ],
as trustee (the "Trustee"). As of the date hereof, the Company has authorized
the issuance and sale of up to U.S. $[ ] aggregate principal amount (or
its equivalent, based upon the applicable exchange rate at the time of issuance,
in such foreign currencies or composite currencies as the Company shall
designate in the Notes) of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Registration Statement") under the
Securities Act of 1933, as amended (the "1933 Act"), including a prospectus (the
"Base Prospectus") relating, among other things, to debt securities. The Company
has filed with the Commission, transmitted for filing to the Commission, or
shall promptly file with or transmit for filing to the Commission a prospectus
supplement (the "Prospectus Supplement") relating to the Notes, including, in
each case, all Incorporated Documents (as hereinafter defined), 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"), or the
<PAGE>
1933 Act or otherwise. The term "Prospectus" shall mean the Base Prospectus,
the Prospectus Supplement, the Incorporated Documents and any term sheet or
abbreviated term sheet as those terms are used in Rule 434 of the 1933 Act
Regulations (each a "Term Sheet") 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 which is not 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. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents, financial
statements and schedules incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, and any reference to any amendment or supplement
to the Registration Statement or the Prospectus shall be deemed to refer to and
include any documents, financial statements and schedules filed by the Company,
Disney [or Capital Cities/ABC, Inc. ("Capital Cities")] with the Commission
under the 1934 Act after the date hereof, and so incorporated by reference or
deemed incorporated by reference (such incorporated documents, financial
statements and schedules being herein called the "Incorporated Documents").
Notwithstanding the foregoing, for purposes of this Agreement any prospectus,
prospectus supplement, term sheet or abbreviated term sheet prepared or filed
with respect to an offering pursuant to the Registration Statement of a series
of securities other than the Notes shall not be deemed to have supplemented the
Prospectus.
SECTION 1. REPRESENTATIONS AND WARRANTIES; ADDITIONAL CERTIFICATES.
(a) REPRESENTATIONS AND WARRANTIES. The Company [and Disney
jointly and severally(1)] represent and warrant 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 through an Agent as agent or from an Agent as
principal), as of the date of each delivery of Notes by the Company to the
purchasers (the date of each such delivery to an Agent as principal being
hereafter referred to as a "Settlement Date"), and as of the dates referred to
in Section 6(a) hereof (each of the dates referenced above being referred to
hereafter as a "Representation Date"), as follows:
____________________
(1) Representations, warranties and covenants of Disney shall be included if
Disney guarantees the Notes as more fully described in the Prospectus
Supplement and Indenture.
2
<PAGE>
(i) The Incorporated Documents, when they
became effective or were filed (or, if an amendment with
respect to any such Incorporated Document was filed or
became effective, when such amendment was filed or became
effective) with the Commission, as the case may be, complied
in all material respects with the requirements of the 1934
Act, and any Incorporated Documents filed subsequent to the
date hereof and prior to the termination of the offering of
the Notes, will, when they are filed with the Commission,
comply in all material respects with the requirements of the
1934 Act; no such Incorporated Document, when it became
effective or was filed (or, if an amendment with respect to
any such Incorporated Document was filed or became
effective, when such amendment was filed or became
effective) with the Commission, contained, and no
Incorporated Document filed subsequent to the date hereof
and prior to the termination of the offering of the Notes
will contain, 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.
(ii) The Registration Statement, at the time
it became effective, complied in all material respects with
the provisions of the 1933 Act and the 1933 Act Regulations;
at the applicable Representation Date, the Registration
Statement and the Prospectus, and any supplements or
amendments thereto, will comply in all material respects
with the provisions of the 1933 Act and the 1933 Act
Regulations; and the Registration Statement and the
Prospectus, and any such supplement or amendment thereto, at
all such times 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 to make the
statements therein, in light of the circumstances under
which they were made, not misleading; except that this
representation and warranty does not apply to statements or
omissions in the Registration Statement, the Prospectus or
any preliminary prospectus, or any amendment or supplement
thereto, made in reliance upon information furnished to the
Company in writing by or on behalf of the Agents expressly
for use therein or to those parts of the Registration
Statement which constitute the Trustee's Statement of
Eligibility and Qualification on Form T-1 under the 1939 Act
(the "Form T-1"). There is no contract or
3
<PAGE>
document of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required.
(iii) This Agreement, the Indenture, the
Notes [including the related guaranty thereof by Disney (the
"Guarantees)] and any applicable Terms Agreement have been
duly authorized by the Company [and Disney] and conform in
all material respects to the descriptions thereof in the
Prospectus.
(iv) The Indenture (assuming due execution
and delivery thereof by the Trustee) is, and the Notes [and
the Guarantees] (when executed by the Company [and Disney,
respectively] and authenticated in accordance with the
Indenture and delivered to and paid for by the purchasers
thereof) will be, the legal, valid and binding obligations
of the Company [and Disney], enforceable against the Company
[and Disney] in accordance with their respective terms,
except as such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights generally,
(B) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law), (C) requirements that a claim with respect to any
Notes denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in
respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law and (D) governmental
authority to limit, delay or prohibit the making of payments
outside the United States or in a foreign currency or
composite currency. The Notes [and the Guarantees] (when
executed by the Company [and Disney, respectively] and
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the purchasers thereof)
will be entitled to the benefits of the Indenture (subject
to the exceptions set forth in the preceding sentence).
(v) The Company [and Disney each] is a
validly existing corporation in good standing under the laws
of its state of incorporation. The Company [and Disney
each] has full corporate power and authority to own, lease
and operate its proper-
4
<PAGE>
ties and to conduct its business as presently conducted and as
described in the Prospectus; and the Company [and Disney
each] is duly qualified as a foreign corporation to transact
business and is in good standing 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 would not
have a material adverse effect on the consolidated financial
condition or earnings of the Company [and Disney, as the
case may be] and its subsidiaries, considered as one
enterprise.
(vi) Except as contemplated in the
Prospectus or reflected therein by the filing of any
amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated
financial statements included or incorporated by reference
in the Registration Statement and the Prospectus, unless the
Company has notified the Agents as provided in Section 3(d)
hereof, there has not been any material adverse change in
the consolidated financial condition or earnings of the
Company [and Disney] and their subsidiaries, considered as
one enterprise.
(vii) [Neither] the Company [nor Disney] is
[not] in violation of its Certificate of Incorporation or
Bylaws. The execution and delivery of this Agreement by the
Company [and Disney], the issuance and sale of the Notes
[and the related Guarantees] and the performance by the
Company [and Disney] of its [their] obligations under this
Agreement, the Indenture and any applicable Terms Agreement
will not conflict with or constitute a breach of or a
default (with the passage of time or otherwise) under (A)
the Certificate of Incorporation or Bylaws of the Company
[or Disney], (B) subject to the Company's [or Disney's, as
the case may be,] compliance with any applicable covenants
pertaining to its incurrence of unsecured indebtedness
contained therein, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company [or Disney] is a party or by which it may be bound,
or to which any of the properties or assets of the Company
[Disney] is subject, which breach or default would, singly
or in the aggregate, reasonably be expected to have a
material adverse effect on the consolidated financial
condition or earnings of the Company [Disney] and its
subsidiaries, considered as one enterprise, or (C) any
applicable law, administrative regula-
5
<PAGE>
tion or administrative or court decree. Except for orders,
permits and similar authorizations required under or by the
securities or Blue Sky laws of certain jurisdictions, any
securities exchange on which any of the Notes might be
listed or with respect to Notes which are to be indexed or
linked to any foreign currency, composite currency,
commodity, equity index or similar index, no consent,
approval, authorization or other order of any regulatory
body, administrative agency or other governmental body is
legally required for the valid issuance and sale of the
Notes. As of the date of each acceptance by the Company of
an offer for the purchase of Notes and as of the date of
each delivery of Notes [and related Guarantees] by the
Company [and Disney, respectively,] the Company [and
Disney] by such acceptance or delivery, as the case may be,
shall be deemed to [jointly and severally] represent and
warrant to the Agents that, both immediately before and
immediately after giving effect to such acceptance or
delivery, the Company [and Disney] shall be in compliance
with the requirements of any applicable covenants pertaining
to its incurrence of unsecured indebtedness contained in the
agreements or instruments referred to in clause (B) above.
(viii) To the best of the Company's [and
Disney's] knowledge, the accountants who have audited and
reported upon the financial statements filed with the
Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the
1933 Act. The financial statements included in the
Registration Statement or Prospectus or incorporated therein
by reference fairly present the consolidated financial
position and results of operations of the Company [Disney]
and its subsidiaries at the respective dates and for the
respective periods to which they apply. Such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied, except
as set forth in the Registration Statement and Prospectus.
(ix) Each of [ ] (collectively the
"Significant Subsidiaries") is a validly existing
corporation in good standing in the state of its
incorporation. Each of the Significant Subsidiaries has
full corporate power and authority to own, lease and operate
its properties and to conduct its business as presently
6
<PAGE>
conducted and as described in the Prospectus; and each of
the Significant Subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in
each United States jurisdiction in which such qualification
is required whether by reason of the ownership or leasing of
property or the conduct of business, except where a failure
to so qualify would not have a material adverse effect on
the consolidated financial condition or earnings of the
Company [Disney] and its subsidiaries, considered as one
enterprise.
(x) The Company [and Disney, each] has
complied with, and is and will be in compliance with, the
provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and
regulations thereunder or is exempt therefrom.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
officer of the Company [or Disney] and delivered to an Agent or to counsel for
the Agents in connection with an offering of Notes shall be deemed a
representation and warranty by the Company [and Disney, jointly and severally,]
to such Agent as to the matters covered thereby on the date of such certificate.
SECTION 2. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS.
(a) SOLICITATIONS AS AGENTS. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees, as an agent of the Company, to
use its best efforts to solicit offers to purchase the Notes upon the terms and
subject to the conditions set forth herein and in the Prospectus. Without the
prior written consent of the Company, the Agents are not authorized to appoint
sub-agents or to engage the services of any other broker or dealer in connection
with the offer or sale of the Notes; provided, that without the Company's
consent, the Agents may solicit offers to purchase the Notes from other brokers
or dealers. In connection with the solicitation of offers to purchase Notes,
without the prior consent of the Company, the Agents are not authorized to
provide any written information relating to the Company [or Disney] to any
prospective purchaser other than the Prospectus and the Incorporated Documents.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company has
been solicited by
7
<PAGE>
such Agent, as agent, and accepted by the Company, but such Agent shall not
have any liability to the Company in the event any such purchase is not
consummated for any reason.
The Company reserves the right, in its sole discretion, to suspend the
solicitation of offers to purchase the Notes through the Agents commencing at
any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will, as soon as possible, suspend the solicitation
of offers to purchase the Notes 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, which such Agent is
hereby authorized to deduct from the sales proceeds of each Note sold by the
Company as a result of a solicitation made by such Agent, equal to the
applicable percentage of the principal amount of each such Note, as set forth in
Exhibit A hereto. Without the consent of the Company, no Agent may reallow any
portion of the commission payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Notes.
As an agent, each Agent is authorized, except during periods of
suspension as provided in this Agreement, to solicit offers to purchase the
Notes. Each Agent shall communicate to the Company, orally or in writing, each
reasonable offer to purchase Notes received by such Agent, as agent. Each Agent
shall have the right in its discretion reasonably exercised to reject any offer
to purchase the Notes received by such Agent which it does not deem reasonable,
and any such rejection shall not be deemed a breach of such Agent's agreements
contained herein. The Company shall have the sole right to accept offers to
purchase the Notes and may reject any such offer in whole or in part, and any
such rejection shall not be deemed to be a breach of any agreement of the
Company contained herein. The purchase price, interest rate, maturity date and
other terms of the Notes agreed upon by the Company shall be set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes (a "Pricing Supplement").
Except as may be otherwise provided in any Pricing Supplement, each Note will be
issued in the denomination of U.S. $1,000 or any amount in excess thereof which
is an integral multiple of U.S. $1,000. The Pricing Supplement may be in the
form of a Term Sheet. All Notes will be sold at 100% of their principal amount
unless otherwise agreed to by the Company. Each Agent acknowledges and agrees
that any funds which such Agent receives in respect of a purchase of Notes,
which purchase has been solicited by such Agent, as agent of the Compa-
8
<PAGE>
ny, will be received, held and disposed of by such Agent, as agent of the
Company, subject to the right of such Agent to deduct from the sale proceeds
the applicable commission as set forth on Exhibit A hereto.
If requested by a prospective purchaser of Notes denominated in a
currency other than U.S. dollars, the Agent soliciting the offer to purchase
will use its reasonable efforts to arrange for the conversion of U.S. dollars
into such currency to enable the purchaser to pay for such Notes. Such requests
must be made on or before the fifth Business Day preceding the date of delivery
of the Notes, or by such other dates as determined by such Agent. Each such
conversion will be made by the relevant Agent on such terms and subject to such
conditions, limitations and charges as such Agent may from time to time
establish in accordance with its regular foreign exchange practice. All costs
of exchange will be borne by purchasers of the Notes.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such Notes
to, and the purchase and any reoffering thereof by, such Agent. Each such
separate agreement (which may be an oral agreement if confirmed within 24 hours
thereafter by an exchange of any standard form of written telecommunication
(including facsimile transmission) between the Agent and the Company) is herein
referred to as a "Terms Agreement." Unless the context otherwise requires, each
reference contained herein to "this Agreement" shall be deemed to include any
applicable Terms Agreement between the Company and the Agent. Each such Terms
Agreement, whether oral (and confirmed in writing, which confirmation may be by
facsimile transmission) or in writing shall be with respect to such information
(as applicable) as is specified in Exhibit B hereto. An Agent's commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company [and Disney]
herein contained and shall be subject to the terms and conditions herein set
forth. The Agents may offer the Notes they have purchased as principal to other
dealers. The Agents may sell Notes to any dealer at a discount and, unless
otherwise specified in the applicable Terms Agreement, such discount allowed to
any dealer will not be in excess of the discount to be received by such Agent
from the Company. Unless otherwise specified in the applicable Terms Agreement,
any Notes sold to an Agent as principal will be purchased by such Agent at a
price equal to 100% of the principal amount thereof less a percentage equal to
the commission applicable to any agency sale of a Note of identical maturity.
9
<PAGE>
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). The Procedures initially agreed upon
shall be those set forth in Exhibit C hereto. The Agents and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by the Agents and the Company herein and in the Procedures.
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the
Agents promptly of (i) the designation and selection of additional agents to
become party to this Agreement, (ii) the designation and selection of additional
agents for the sale of Notes pursuant to any agreement other than this
Agreement, (iii) the effectiveness of any post-effective amendment to the
Registration Statement (other than a post-effective amendment relating solely to
an offering of securities other than the Notes), (iv) the transmittal to the
Commission for filing of any supplement to the Prospectus (other than a Pricing
Supplement or a supplement relating solely to an offering of debt securities
other than the Notes), (v) the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus (other than any comments
relating solely to an offering of securities other than the Notes), (vi) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information (other
than any such request relating solely to an offering of securities other than
the Notes) and (vii) 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. The Company will make every reasonable effort to
prevent the issuance of any such stop order and, if any such stop order is
issued, to obtain the lifting thereof at the earliest possible time unless the
Company shall, in its sole discretion, determine that it is not in its best
interests to do so.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. At or prior to the
filing thereof, the Company will give the Agents notice of its intention to file
any additional registration statement with respect to the registration of
additional Notes to be covered by this Agreement, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than a Pricing Supplement or an amendment or supplement relating solely to an
offering of securities other than the Notes), whether by the filing of documents
pursuant to
10
<PAGE>
the 1934 Act, the 1933 Act or otherwise, and will furnish the Agents with
copies of any such amendment or supplement or other documents promptly after the
filing thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Company will deliver to the Agents one signed and as many conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including the Incorporated Documents and any exhibits filed therewith
or incorporated by reference therein) 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 the Agents
are required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. So long as the
Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes, if any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Company, after consultation with counsel for the Agents, 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 light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel for the Company, 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, prompt notice
shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in their capacity as agents and to
cease sales of any Notes the Agents may then own as principal. In addition, if
any Agent holds Notes purchased for resale pursuant to a Terms Agreement and the
Company has given notice to the Agents pursuant to this subsection (d) within 90
days after the date of execution of such Terms Agreement, the Company will
prepare and file as soon as practicable an amendment or supplement to the
Prospectus so that the Prospectus, as amended or supplemented, will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to the Agents.
(e) COMPLIANCE WITH THE 1934 ACT; ACCOUNTANTS' CONSENTS.
[(x)] The Company will (i) comply, in a timely manner, with all applicable
11
<PAGE>
requirements under the 1934 Act relating to the filing with the Commission of
the Company's reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act
and, if then applicable, of the Company's proxy statements pursuant to Section
14(a) of the 1934 Act and (ii) use its best efforts to obtain the written
consent of the Company's independent accountants as to the incorporation by
reference in the Registration Statement of the audited financial statements
reported on by them and contained in the Company's annual reports on Form 10-K
under the 1934 Act[; and
(y) Disney will (i) comply, in a timely manner, with all applicable
requirements under the 1934 Act relating to the filing with the Commission of
Disney's reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act
and, if then applicable, of Disney's proxy statements pursuant to Section
14(a) of the 1934 Act and (ii) use its best efforts to obtain the written
consent of Disney's independent accountants as to the incorporation by
reference in the Registration Statement of the audited financial statements
reported on by them and contained in Disney's annual reports on Form 10-K
under the 1934 Act.]
(f) EARNINGS STATEMENTS. The Company [Disney] will make
generally available to its security holders, in each case as soon as practicable
but in any event not later than 15 months after the acceptance by the Company of
an offer to purchase Notes hereunder, a consolidated earnings statement (which
need not be audited) covering the twelve-month period beginning after the latest
of (i) the effective date of the Registration Statement, (ii) the effective date
of the most recent post-effective amendment to the Registration Statement to
become effective, [Disney's] most recent annual report on Form 10-K filed with
the Commission prior to the date of such acceptance, which earnings statement
will satisfy the provisions of Section 11(a) of the 1933 Act. The Company [and
Disney] may elect to rely upon Rule 158 under the 1933 Act and may elect to make
such earnings statement available more frequently than once in any period of
twelve months.
(g) 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 will promptly notify the Agents
of any suspension or termination of any such qualifications, and PROVIDED,
FURTHER, that the Company shall not be obligated to register or qualify as a
foreign corporation
12
<PAGE>
or take any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(h) SUSPENSION OF CERTAIN OBLIGATIONS. [Neither Disney nor] the
Company shall [not] be required to comply with the provisions of subsections
(b), (c), (d), (e) or (g) of this Section 3 during any period from the time the
Agents shall have been notified to suspend the solicitation of offers to
purchase the Notes in their capacity as agents or resales of Notes purchased
pursuant to a Terms Agreement, to the time the Company shall determine that the
solicitation of offers to purchase the Notes through any Agent or Agents or
resales as principal of Notes purchased pursuant to a Terms Agreement by any
Agent or Agents should be resumed. Notwithstanding the foregoing, if any Agent
holds Notes purchased for resale pursuant to a Terms Agreement, the Company [or
Disney, as the case may be,] shall comply with the provisions of subsections
(b), (c), (d), (e) and (g) of this Section 3 during the 90-day period from and
including the date of execution of such Terms Agreement; PROVIDED, HOWEVER, that
the Company [or Disney, as the case may be,] shall have the right, in its
reasonable business judgment, to suspend such compliance during such 90-day
period for an aggregate of up to 45 days, in which event such 90-day period
shall be extended by the greater of (i) the number of days included in any such
period of suspension and (ii) 30 days.
SECTION 4. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the
Registration Statement and all amendments thereto and the
Prospectus and any amendments or supplements thereto and all
Incorporated Documents;
(ii) The preparation, filing and printing of
this Agreement;
(iii) The preparation, printing, issuance
and delivery of the Notes;
13
<PAGE>
(iv) The fees and disbursements of the
Trustee and its counsel, of any calculation agent or
exchange rate agent and of The Depository Trust Company;
(v) The reasonable fees and disbursements of
[ ] (or such other counsel as is reasonably
acceptable to the Company), as counsel to the Agents,
incurred in connection with the execution and delivery of
this Agreement and in connection with the review of
subsequent deliveries pursuant to this Agreement;
(vi) The qualification of the Notes under
securities laws in accordance with the provisions of Section
3(g) hereof, including filing fees and the reasonable fees
and disbursements of [ ] (or such other counsel as is
reasonably acceptable to the Company), as counsel to the
Agents, in connection therewith and in connection with the
preparation of any Blue Sky survey;
(vii) 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 of offers to purchase, or confirmations of
sales of, the Notes;
(viii) Any fees charged by rating agencies
for the rating of the Notes;
(ix) Any advertising and other out-of-pocket
expenses of the Agents incurred with the prior written
approval of the Company; and
(x) The subsequent delivery of legal
opinions pursuant to Section 6(b) hereof.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of any Agent to solicit offers to purchase the Notes
as agent of the Company and the obligations of any Agent to purchase Notes
14
<PAGE>
pursuant to any Terms Agreement will be subject at all times 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, 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 by the Company of
all covenants and agreements herein contained on its part to be performed and
observed, and to the following additional conditions precedent:
(a) OPINION OF COUNSEL TO THE COMPANY. On the date hereof, the
Agents shall have received an opinion from Skadden, Arps, Slate, Meagher & Flom,
counsel to the Company, dated as of the date hereof and in form and substance
satisfactory to counsel for the Agents to the effect that:
(i) The Company [Disney] and each of the
Significant Subsidiaries is a corporation validly existing
and in good standing under the laws of its state of
incorporation.
(ii) The Company [and Disney each] has full
corporate power and corporate authority to enter into and
perform its obligations under this Agreement and the
Indenture [and in the case of the Company,] to borrow money
as contemplated in this Agreement and the Indenture, and to
issue, sell and deliver the Notes.
(iii) This Agreement has been duly
authorized, executed and delivered by the Company [and
Disney].
(iv) The Indenture has been duly authorized,
executed and delivered by the Company [and Disney] and
(assuming due authorization, execution and delivery by the
Trustee) is a valid and binding agreement of the Company
[and Disney] enforceable against the Company [and Disney] in
accordance with its terms, except that such enforceability
may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors'
rights generally, (B) general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and (C) as to Section 6.12 of the
Indenture.
15
<PAGE>
(v) No consent or approval of any United
States governmental authority or other United States person
or United States entity is required in connection with the
issuance or sale of the Notes other than registration
thereof under the 1933 Act, qualification of the Indenture
under the 1939 Act, and such registrations or qualifications
as may be necessary under the securities or Blue Sky laws of
the various United States jurisdictions in which the Notes
are to be offered or sold.
(vi) [(a)] The Notes, when executed by the
Company and authenticated in accordance with the terms of
the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and issued to and
paid for by the purchasers thereof, will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company
in accordance with their respective terms, except that such
enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity
(regardless of whether such enforcement is sought in a
proceeding in equity or at law)[; and
(b) The Guarantees, when executed by Disney and
authenticated in accordance with the terms of the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the
Trustee) and issued to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of Disney enforceable against Disney in accordance
with their respective terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law)].
(vii) The Registration Statement has become
effective under the 1933 Act and the Indenture has been
qualified under the 1939 Act, and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration
16
<PAGE>
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated.
(viii) The execution and delivery of this
Agreement and the Indenture by the Company [and Disney], the
issuance and sale of the Notes [and Guarantees] and the
fulfillment of this Agreement and the Indenture by the
Company [and Disney] will not conflict with or constitute a
breach of or a default (with the passage of time or
otherwise) under (A) the Certificate of Incorporation or
Bylaws of the Company [or Disney], (B) any statute, law or
regulation to which the Company [or Disney] or any of its
[respective] properties may be subject or (C) any judgment,
decree or order, known to such counsel, of any court or
governmental agency or authority entered in any proceeding
to which the Company [or Disney] was or is now a party or by
which it is bound; provided, that such counsel may state
that (1) the opinion set forth in clause (B) of this
paragraph (viii) is limited to those United States statutes,
laws or regulations currently in effect which, in such
counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement, and
(2) no opinion is expressed as to the securities or Blue Sky
laws of the various jurisdictions in which the Notes are to
be offered and (3) no opinion is expressed with respect to
such clause (B) with respect to the Notes [and the related
Guarantees] which are to be indexed or linked to any foreign
currency, composite currency, commodity, equity index or
similar index.
(ix) The Registration Statement, as of the
date it became effective, and the Prospectus, as of the date
of this Agreement, appear on their face to be appropriately
responsive in all material respects to the requirements of
the 1933 Act, except that in each case such counsel need not
express an opinion as to (i) the Incorporated Documents,
(ii) the financial statements and schedules and other
financial data included or incorporated by reference therein
or (iii) the Form T-1.
(x) The statements in the Prospectus under
the caption "Description of the Debt Securities" insofar as
they purport to summarize certain provisions of documents
specifically
17
<PAGE>
referred to therein, are in all material respects accurate summaries
of such provisions.
In rendering the opinions set forth above, such counsel may state that
(1) with respect to paragraphs (iv) and (vi), such enforcement may be limited by
(i) requirements that a claim with respect to any Notes denominated other than
in United States dollars (or a judgment denominated other than in United States
dollars in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law and
(ii) governmental authority to limit, delay or prohibit the making of payments
outside the United States or in foreign currency or composite currency; and (2)
with respect to paragraphs (iv), (v) and (vi), no opinion is expressed thereto
with respect to any Notes that are to be indexed or linked to any foreign
currency or composite currency, commodity, equity index or similar index.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel
employed by the Company, representatives of the independent public accountants
for the Company, representatives of the Agents and counsel for the Agents, at
which conferences the contents of the Registration Statement and Prospectus and
related matters were discussed and, although such counsel is not passing upon,
and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus and have not made any independent check or verification thereof, on
the basis of the foregoing, no facts have come to such counsel's attention that
lead them to believe that either the Registration Statement (excluding the
Incorporated Documents) 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 the Prospectus
(excluding the Incorporated Documents) as of the date of this Agreement (and, if
the opinion is being given pursuant to Section 6(b) hereof as a result of the
Company having entered into a Terms Agreement, as of the Settlement Date with
respect to such Terms Agreement) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that such counsel need express no opinion with respect to (i)
the Incorporated Documents, (ii) the financial statements, schedules and other
financial data included or incorporated by reference in the Registration
Statement or the Prospectus or (iii) the Form
18
<PAGE>
T-1.
(b) OPINION OF COUNSEL EMPLOYED BY THE COMPANY. On the date
hereof, the Agents shall have received an opinion from David K. Thompson, Senior
Vice President-Assistant General Counsel or from other counsel employed by the
Company (provided that such counsel is a more senior officer of the Company),
dated as of the date hereof and in form and substance satisfactory to counsel
for the Agents, to the effect that:
(i) Except as set forth in the Prospectus
(including the Incorporated Documents), there is not pending
or, to the best of such counsel's knowledge, after
reasonable inquiry, threatened any action, suit or
proceeding against the Company [Disney] or any of its
subsidiaries before or by any court or governmental agency
or body, which is likely (to the extent not covered by
insurance) to have a material adverse effect on the
consolidated financial condition or earnings of the Company
[Disney] and its subsidiaries, considered as one enterprise.
(ii) To the best of such counsel's
knowledge, after reasonable inquiry, there is no contract or
document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not
described or filed as required.
(iii) To the best of such counsel's
knowledge, after reasonable inquiry, [neither] the Company
[nor Disney] is [not] in violation of its Certificate of
Incorporation or Bylaws.
(iv) To the best of such counsel's
knowledge, after reasonable inquiry, (x) the execution and
delivery, and (y) the performance, of this Agreement and the
Indenture will not conflict with or constitute a breach of,
or default (with the passage of time or otherwise) under,
any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company [or
Disney] is a party or by which it may be bound, or to which
any of the property or assets of the Company[, Disney] or
any of its [respective] subsidiaries is subject.
19
<PAGE>
(v) The Incorporated Documents, as of the
date of this Agreement, comply as to form in all material
respects with the requirements of the 1933 Act, except that
in each case such counsel need not express an opinion as to
the financial statements and schedules and other financial
data included or incorporated by reference therein.
In addition, such counsel shall state that nothing has come to such
counsel's attention that leads him to believe that either the Registration
Statement (including the Incorporated Documents) 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 the Prospectus (including the Incorporated Documents) as of the
date of this Agreement (and, if the opinion is being given pursuant to Section
6(b) hereof as a result of the Company having entered into a Terms Agreement, as
of the Settlement Date with respect to such Terms Agreement) 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, in light of the
circumstances under which they were made, not misleading, except that such
counsel need express no opinion with respect to the financial statements,
schedules and other financial data included or incorporated by reference in the
Registration Statement or Prospectus or with respect to the Form T-1.
(c) OPINION OF AGENTS' COUNSEL. On the date hereof, the Agents
shall have received an opinion from [ ], counsel to the Agents,
dated as of the date hereof and in form and substance satisfactory to the
Agents.
(d) OFFICER'S CERTIFICATE. [a] On the date hereof (and, if this
certificate is being delivered pursuant to a Terms Agreement, as of the
Settlement Date with respect to such Terms Agreement), the Agents shall have
received a certificate signed by an officer of the Company, substantially in the
form of Appendix I hereto and dated the date hereof, to the effect that (i) the
representations and warranties of the Company contained in Section 1(a) hereof
(other than Section 1(a)(vii)) are true and correct in all material respects
with the same force and effect as though expressly made at and as of the date of
such certificate, (iii) the Company has complied with all agreements and
satisfied all conditions required by this Agreement or the Indenture on its part
to be performed or
20
<PAGE>
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
officer's knowledge, threatened by the Commission. The Officers Certificate
shall further state that except as contemplated in the Prospectus or reflected
therein by the filing of any amendment or supplement thereto or any Incorporated
Document, at the date hereof and at each Settlement Date with respect to any
Terms Agreement, there shall not have been, since the date of the most recent
consolidated financial statements of the Company included or incorporated by
reference in the Prospectus, any material adverse change in the consolidated
financial condition or earnings of the Company and its subsidiaries, considered
as one enterprise [;
[b] On the date hereof (and, if a certificate is
being delivered pursuant to a Terms Agreement, as of the Settlement Date with
respect to such Terms Agreement), the Agents shall have received a certificate
signed by an officer of Disney, substantially in the form of Appendix I hereto
and dated the date hereof, to the effect that (i) the representations and
warranties of Disney contained in Section 1(a) hereof (other than Section
1(a)(vii)) are true and correct in all material respects with the same force and
effect as though expressly made at and as of the date of such certificate and
(ii) Disney has complied with all agreements and satisfied all conditions
required by this Agreement or the Indenture on its part to be performed or
satisfied at or prior to the date of such certificate. The Officers Certificate
shall further state that except as contemplated in the Prospectus or reflected
therein by the filing of any amendment or supplement thereto or any Incorporated
Document, at the date hereof and at each Settlement Date with respect to any
Terms Agreement, there shall not have been, since the date of the most recent
consolidated financial statements of Disney included or incorporated by
reference in the Prospectus, any material adverse change in the consolidated
financial condition or earnings of Disney and its subsidiaries, considered as
one enterprise].
(e) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from the Company's [Disney's] [and Capital Cities] independent
certified public accountants, dated as of the date hereof and in form and
substance reasonably satisfactory to the Agents.
(f) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel to 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
21
<PAGE>
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 may be terminated
by any of the Agents (as to itself only) and any Terms Agreement may be
terminated by the Agent party to such Terms Agreement 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 covenants set forth in Section 3(f) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreement set
forth in Sections 7 and 8 hereof, and the provisions of Sections 9 and 13 hereof
shall remain in effect.
SECTION 6. SUBSEQUENT DOCUMENTATION REQUIREMENT OF THE COMPANY.
The Company covenants and agrees that so long as the Notes are
authorized for sale pursuant to this Agreement and unless the sale of the Notes
has been suspended as provided in this Agreement:
(a) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by (i) a Pricing Supplement or an amendment or other supplement providing
solely for a change in the interest rates of the Notes or changes in other terms
of the Notes or (ii) an amendment or supplement which relates exclusively to an
offering of securities other than the Notes) or there is filed with the
Commission any document incorporated by reference into the Prospectus or the
Company sells Notes to an Agent pursuant to a Terms Agreement, the terms of
which so require, the Company shall use its best efforts to furnish or cause to
be furnished to the Agents or to the Agent party to the Terms Agreement, as the
case may be, promptly following such amendment, supplement or filing or on the
Settlement Date with respect to such Terms Agreement, as the case may be, a
certificate in form satisfactory to counsel for the Agents to the effect that
the statements contained in the certificate referred to in Section 5(d) 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
22
<PAGE>
in said Section 5(d), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate; PROVIDED, HOWEVER, that in the case of any such amendment
or supplement that relates to the Notes which are indexed or linked to any
foreign currency, composite currency, commodity, equity index or similar index,
such certificate shall state that, for purposes of such certificate, the phrase
"or with respect to Notes which are to be indexed or linked to any currency,
composite currency, commodity, equity index or similar index" appearing in the
second sentence of Section 1(a)(viii) hereof shall be deemed not to apply with
respect to such Notes.
(b) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by (i) a Pricing Supplement or an amendment or other supplement providing
solely for a change in the interest rates of the Notes or changes in other terms
of the Notes or (ii) an amendment or supplement providing primarily for the
inclusion of additional financial information, or (iii) an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes) or there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any Annual Report on Form 10-K,
Current Report on Form 8-K or Quarterly Report on Form 10-Q relating primarily
to financial statements or other financial information as of and for any fiscal
quarter) or the Company sells Notes to an Agent pursuant to a Terms Agreement,
the terms of which so require, the Company shall use its best efforts to furnish
or cause to be furnished promptly following such amendment, supplement or filing
or on the Settlement Date with respect to such Terms Agreement, as the case may
be, to the Agents or to the Agent party to the Terms Agreement, as the case may
be (with a copy to counsel to the Agents or counsel to such Agent, as the case
may be), letters substantially in the form of Appendix II hereto (modified, as
necessary, in the case of a Terms Agreement) from the counsel last furnishing
the opinions referred to in Sections 5(a) and 5(b) hereof or, in lieu of such
letters, letters from other counsel reasonably satisfactory to the Agents
(which, in the case of the opinions referred to in such Section 5(b), shall
include David K. Thompson, Senior Vice President - Assistant General Counsel of
the Company), dated the date of delivery of such letter and in form satisfactory
to counsel for the Agents, of the same tenor as the opinions referred to in
Sections 5(a) and 5(b) (other than, in the case of the opinion delivered
pursuant to Section 5(b) hereof, the matters covered by Sections 5(b)(i) and
5(b)(iv)(x)) 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 opinion; PROVIDED, HOWEVER,
23
<PAGE>
that in the case of any such amendment or supplement that relates to the Notes
which are indexed or linked to any foreign currency, composite currency,
commodity, equity index or similar index, the opinions referred to in Section
5(a) hereof shall not include the exceptions set forth in such Section 5(a) as
to the Notes which are to be indexed or linked to any foreign currency,
composite currency, commodity, equity index or similar index. The Company shall
use its best efforts to furnish or cause to be furnished to the Agents, promptly
following each filing by the Company of a Quarterly Report on Form 10-Q or an
Annual Report on Form 10-K, a letter from the counsel last furnishing the
opinion referred to in Section 5(b) hereof, or from other counsel reasonably
satisfactory to the Agents, dated the date of delivery of such letter and in
form satisfactory to counsel for the Agents, of the same tenor as the opinion
referred to in Section 5(b)(i) hereof, but modified, as necessary, to relate to
the Registration Statement and Prospectus as amended and supplemented to the
time of delivery of such letter.
(c) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that 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 statement information relating to the Company or the
Company sells the Notes pursuant to a Terms Agreement, the terms of which so
require, the Company shall use its best efforts to cause the Company's
independent public accountants promptly following such amendment, supplement or
filing or on the Settlement Date with respect to such Terms Agreement, as the
case may be, to furnish the Agents or to the Agent party to the Terms Agreement,
as the case may be, a letter, dated the date of filing of such amendment,
supplement or document with the Commission, or such Settlement Date, as the case
may be, in form satisfactory to counsel for the Agents (or such Agent), of the
same tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(e) hereof but modified, as necessary, 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(e) 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; PROVIDED, HOWEVER, that if
the Registration Statement or the Prospectus is amended or supplemented
primarily to include financial information as of and for a fiscal quarter, the
Company's independent certified public accountants may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement.
24
<PAGE>
SECTION 7. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company [and Disney,
jointly and severally,] agrees to indemnify and hold harmless each Agent and
each person, if any, who controls an 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 (including, subject to
the limitations set forth in subsection (C) below, the
reasonable fees and disbursements of counsel chosen by the
Agents), as incurred, insofar as such loss, liability,
claim, damage or expense arises out of any untrue statement
or alleged untrue statement of a material fact contained in
the Registration Statement 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 arises out of any untrue statement or alleged
untrue statement of a material fact contained in the
Prospectus or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever (including, subject to
the limitations set forth in subsection (C) below, the
reasonable fees and disbursements of counsel chosen by the
Agents), 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 insofar as such loss,
liability, claim, damage or expense arises out of any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Company [and Disney]; and
(iii) against any and all expense whatsoever
(including, subject to the limitations set forth in
subsection (C) below, the reasonable fees and disbursements
of counsel chosen by the Agents), as incurred, reasonably
incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any
governmental agency or body, commenced or
25
<PAGE>
threatened, or any claim whatsoever, based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission;
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss, liability,
claim, damage or expense (A) to the extent arising out of or based upon any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon the Form T-1 under the 1939 Act filed as an exhibit to the
Registration Statement; or (B) to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission in the Prospectus if such
untrue statement or alleged untrue statement or omission or alleged omission is
corrected in all material respects in an amendment or supplement to the
Prospectus and if, having previously been furnished by or on behalf of the
Company with copies of the Prospectus, as so amended or supplemented, such Agent
thereafter failed to deliver such Prospectus, as so amended or supplemented,
prior to or concurrently with the sale of a Note or Notes to the person
asserting such loss, liability, claim, damage or expense who purchased such Note
or Notes which are the subject thereof from such Agent; or (C) as to which such
Agent may be required to indemnify the Company pursuant to the provisions of
subsection (b) of this Section 7.
(b) INDEMNIFICATION OF THE COMPANY [AND DISNEY]. Each Agent
agrees to indemnify and hold harmless the Company, [Disney] its respective
directors, each of its respective officers who signed the Registration
Statement, and each person, if any, who controls the Company [or Disney] 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 7, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company [or Disney] by such Agent expressly for use
in the Registration Statement or the Prospectus.
(c) GENERAL. (i) In case any action, suit or proceeding
(including any governmental or regulatory investigation or proceeding) shall be
brought against any Agent or any person controlling such Agent, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company [and Disney] pursuant to this Section 7, such
Agent or controlling person shall promptly notify the Company [and Disney] in
writing, and the Company [or Disney] shall assume the defense thereof, including
26
<PAGE>
the employment of counsel (such counsel to be reasonably acceptable to such
Agent) and payment of all expenses. Any such Agent or any such controlling
person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at the expense of such Agent or such
controlling person unless (A) the employment of such counsel shall have been
specifically authorized in writing by the Company [and Disney], (B) the Company
[and Disney] shall have failed to assume the defense and employ counsel or (C)
the named parties to any such action, suit or proceeding (including any
impleaded parties) shall include both such Agent or such controlling person and
the Company [or Disney], and such Agent or such controlling person shall have
been advised by counsel that there may be one or more legal defenses available
to it which are different from, or additional to, those available to the Company
[or Disney] (in which case, if such Agent or such controlling person notifies
the Company [and Disney] in writing that it elects to employ separate counsel at
the expense of the Company [and Disney], [neither] the Company [nor Disney]
shall [not] have the right to assume the defense of such action, suit or
proceeding on behalf of such Agent or such controlling person, it being
understood, however, that the Company [and Disney] 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 of more than one
separate firm of attorneys (in addition to any local counsel) for all such
Agents and such controlling persons, which firm shall be designated in writing
by a majority of all such Agents, on behalf of all of such Agents and such
controlling persons).
(ii) In case any action, suit or proceeding
(including any governmental or regulatory investigation or
proceeding) shall be brought against the Company [, Disney],
any of the Company's [or Disney's] directors or officers, or
any person controlling the Company [or Disney], with respect
to which indemnity may be sought against any Agent pursuant
to this Section 7, such Agent shall have the rights and
duties given to the Company [and Disney] by subsection
(c)(i) of this Section 7, and the Company [, Disney], the
Company's [and Disney's]directors and officers and any such
controlling person shall have the rights and duties given to
the Agents by subsection (c)(i) of this Section 7.
SECTION 8. CONTRIBUTION.
27
<PAGE>
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 7 hereof
is for any reason held to be unenforceable with respect to the indemnified
parties although applicable in accordance with its terms, the Company [, Disney]
and each Agent [, on the other hand,] 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
proportion as is appropriate to reflect the relative benefits received by the
Company [and Disney] on the one hand and each of the Agents participating in the
offering that gave rise to such losses, liabilities, claims, damages and
expenses (a "Relevant Agent") on the other hand from the offering of such Notes.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required pursuant to Section 7(c) hereof or pursuant to the last sentence
of this Section 8, then the Company [, Disney] and each Agent shall contribute
to such aggregate losses, liabilities, claims, damages and expenses incurred by
the Company and the Agents, as incurred, in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company [and Disney] on the one hand and each Relevant Agent on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company [and
Disney] on the one hand and each Relevant Agent on the other hand in connection
with the offering of such Notes shall be deemed to be in the same proportion as
the total net proceeds from the sale of such Notes by such Relevant Agent
received by the Company (before deducting expenses) bear to the total
commissions or other compensation or remuneration received by such Relevant
Agent in respect thereof. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company [(or Disney)] or such Relevant
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. If more than one
Agent is a Relevant Agent in respect of a proceeding, each Relevant Agent's
obligation to contribute pursuant to this Section 8 shall be several and not
joint, and shall be in the proportion that the principal amount of the Notes
that are the subject of such proceeding and that were offered and sold through
such Relevant Agent bears to the notwithstanding the provisions of this Section
8, no Agent shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes purchased by or through it were sold
exceeds the amount of any damages which such Agent has
28
<PAGE>
otherwise been required to pay by reason of such 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 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, 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
[or Disney], each officer of the Company [or Disney] who sign within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company [or Disney, as the case may be]. Any party entitled to contribution
pursuant to the first sentence of this Section 8 will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought,
from any other obligation it or they may have otherwise than under this Section
8; PROVIDED, HOWEVER, that such notice need not be given if such party entitled
to contribution hereunder has previously given notice pursuant to Section 7(c)
hereof with respect to the same action, suit or proceeding.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or any Terms Agreement, or contained in certificates of officers of
the Company [or Disney] submitted pursuant hereto, 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 of any Agent, or by or on behalf of the
Company [or Disney], and shall survive each delivery of and payment for any of
the Notes.
SECTION 10. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding
any Terms Agreement) may be terminated by the Company (i) for any reason at any
time with respect to any Agent or Agents upon the giving of 2 business days'
written notice of such termination to each other party hereto or (ii) at any
time upon notice to each other party hereto if no Notes then remain authorized
for sale pursuant hereto. This Agreement may be terminated by any Agent (as to
itself only) either (x) upon the giving of 2 business days' written notice of
29
<PAGE>
such termination to each other party hereto or (y) at any time upon notice to
the Company if the Company [or Disney] shall have failed to furnish or cause to
be furnished the certificates, opinions or letters referred to in Section 5 or 6
hereof or if no Notes then remain authorized for sale pursuant hereto.
(b) TERMINATION OF A TERMS AGREEMENT. An Agent party to a Terms
Agreement may terminate such Terms Agreement (as to itself only) immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto if (i) there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the consolidated financial condition or earnings
of the Company [Disney] and its subsidiaries, considered as one enterprise, (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other calamity or
crisis, the effect of which is such as to make it, in the reasonable judgment of
such Agent, impracticable to market the Notes or to enforce contracts for the
sale of the Notes, (iii) if trading in any securities of the Company [or Disney]
has been suspended (other than pursuant to a request by the Company [or Disney]
with respect to an announcement by the Company [or Disney] of certain
information not constituting a material adverse change, since the date of this
Agreement or the respective date as of which information is given in the
Registration Statement, in the consolidated financial condition or earnings of
the Company [Disney] and its subsidiaries, considered as one enterprise), the
effect of which is such as to make it, in the reasonable judgment of such Agent,
impracticable to market the Notes or to enforce contracts for the sale of the
Notes, (iv) if trading generally on the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities shall have been required, by such exchange or
by order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal or New York authorities or if a
banking moratorium has 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 (v) after the date of such Terms Agreement, the
rating assigned by any nationally recognized securities rating agency to any
debt securities of the Company as of the date of such Terms Agreement shall have
been lowered or any such rating agency shall have publicly announced that it has
placed any debt securities of the Company on what is commonly termed a "watch
list" with negative implications.
30
<PAGE>
(c) GENERAL. In the event of any such termination, no party
will have any liability to any other party hereto, except that (i) a terminating
Agent shall be entitled to any commissions earned in accordance with the third
paragraph of Section 2(a) hereof, (ii) if at the time of termination (A) a
terminating Agent and the Company shall have entered into a Terms Agreement and
the Settlement Date with respect thereto shall not yet have occurred 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 3 (subject to the
provisions of Section 3(h)) and 6 hereof shall remain in effect until such
Settlement Date or until such Notes are so delivered, as the case may be, and
(iii) the covenant set forth in Section 3(f) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in Sections 7 and 8
hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Agents shall be directed, as the case
may be, to:
[
]
Notices to the Company [or Disney] shall be directed to it at:
500 South Buena Vista Street
31
<PAGE>
Burbank, California 91521
Attention: Legal Department
SECTION 12. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents (and, in the case of a Terms Agreement, the Agent or Agents party
thereto) and the Company [and Disney] 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 7 and 8 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provisions 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 their 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.
SECTION 13. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES CREATED
HEREBY 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.
32
<PAGE>
If the foregoing is in accordance with your 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,
DC HOLDCO, INC.
By
--------------------------
Name:
Title:
THE WALT DISNEY COMPANY
By
--------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[ ]
By
---------------------------
Name:
Title:
---------------------------
[( )]
[ ]
By
---------------------------
Name:
Title:
33
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Commission
TERM(1) RATE(2)
------- ----------
<S> <C>
More than 9 months but less than 1 year. . . . . . . . . . . . 0.___%
From 1 year but less than 18 months. . . . . . . . . . . . . . 0.___
From 18 months but less than 2 years . . . . . . . . . . . . . 0.___
From 2 years but less than 3 years . . . . . . . . . . . . . . 0.___
From 3 years but less than 4 years . . . . . . . . . . . . . . 0.___
From 4 years but less than 5 years . . . . . . . . . . . . . . 0.___
From 5 years but less than 6 years . . . . . . . . . . . . . . 0.___
From 6 years but less than 7 years . . . . . . . . . . . . . . 0.___
From 7 years but less than 10 years. . . . . . . . . . . . . . 0.___
From 10 years but less than 15 years . . . . . . . . . . . . . 0.___
From 15 years but less than 20 years . . . . . . . . . . . . . 0.___
From 20 years but less than 30 years . . . . . . . . . . . . . 0.___
From 30 years. . . . . . . . . . . . . . . . . . . . . . . . . To be
determined by the Company
and the relevant Agent(s)
<FN>
--------------------
(1) With respect to each Note that is subject to purchase by the Company
at the option of the holder thereof (a "Put Note"), the word "Term" as
used in this exhibit a refers to the earliest purchase date specified
in the applicable Put Note.
(2) With respect to each Note that is a Discount Security (as defined in
the Indenture), the commission payable to each Agent with respect to
each such Note sold as a result of a solicitation made by such Agent
shall be based on the purchase price of such Note.
</TABLE>
1
<PAGE>
EXHIBIT B
The following terms, if applicable, shall be agreed to by each Agent
and the Company pursuant to each Terms Agreement:
Principal Amount: $_________
(or principal amount of
foreign currency or
composite currency)
Interest Rate
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Index Maturity:
CMT Maturity Index, if any:
Interest Determination Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent (if other than the
Trustee):
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Stated Maturity:
Final Maturity (for Renewable Notes):
Initial Maturity (for Renewable Notes):
Purchase Price: ___%
Settlement Date and Time:
2
<PAGE>
Currency of Denomination (if currency is other than
U.S. dollar):
Currency of Payment (if currency is other than U.S.
dollar):
Denominations:
Additional Terms:
Also, agreement(4) as to whether the following will be required:
Officer's Certificate pursuant to Section 6(a) of the Distribution
Agreement.
Legal Opinion pursuant to Section 6(b) of the Distribution Agreement.
Comfort Letter pursuant to Section 6(c) of the Distribution Agreement.
Any restriction on the ability of the Company to sell senior debt
securities with an identical or substantially similar maturity between the
date of the Terms Agreement and the applicable Settlement Date.
Payment by the Company of legal expenses of counsel to Agent(s).
-------------------------
(4) The following generally will not be required in connection with a sale of
less than $50,000,000 aggregate principal amount of Notes.
3
<PAGE>
Appendix I
FORM OF OFFICER'S CERTIFICATE
DC HOLDCO, INC.
I, [Name], [Title] of DC Holdco, Inc., a Delaware corporation (the
"Company"), [and [Title] of The Walt Disney Company, a Delaware corporation
("Disney")] pursuant to Section 5(d) of the Distribution Agreement, dated [
], 1995 (the "Distribution Agreement"), between the Company and each of (i) [
], (ii) [ ] (collectively, the "Agents"), relating to the offering from time to
time by the Company directly or through the Agents of up to $[ ]
aggregate principal amount of Medium-Term Notes of the Company, hereby certify
on behalf of the Company that:
1. Except as contemplated in the Prospectus (as defined in the
Distribution Agreement) or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document (as defined in the Distribution
Agreement), since the date of the most recent consolidated financial statements
included or incorporated by reference in the Prospectus, there has not been any
material adverse change in the consolidated financial condition or earnings of
the Company [and Disney] and its[their] subsidiaries, taken as a whole.
2. The representations and warranties of the Company [and Disney]
contained in Section 1(a) of the Distribution Agreement (other than Section
1(a)(vii) thereof) are true and correct in all material respects with the same
force and effect as though expressly made at and as of the date hereof.
3. The Company [and Disney, each] has complied with all agreements
and satisfied all conditions required by the Distribution Agreement or the
Indenture (as defined in the Distribution Agreement) on its part to be performed
or satisfied at or prior to the date hereof.
4. No stop order suspending the effectiveness of the Registration
Statement (as defined in the Distribution Agreement) has been issued and no
proceedings for that purpose have been initiated or, to the best of my
knowledge, threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of
September, 1994.
__________________________________
Name:
4
<PAGE>
Title:
5
<PAGE>
Appendix II
FORM OF RELIANCE LETTER OF COUNSEL
___________, 19
[Investment Banks]
Re: DC HOLDCO, INC. MEDIUM-TERM NOTES
Dear Sirs:
[We] [I] have delivered an opinion to you dated _________, 19__ as
counsel to DC Holdco, Inc. (the "Company") [and The Walt Disney Company],
pursuant to Section [5(a)] [5(b)] of the Distribution Agreement, dated as of
[ ], 1995 (the "Distribution Agreement"), between the Company and
[the investment banks]. You may continue to rely upon such opinion [(other
than, in the case of the opinion delivered pursuant to Section 5(b) of the
Distribution Agreement, the matters covered by Section 5(b)(i) and 5(b)(iv)(x)
thereof, as to which no opinion is expressed)] as if it were dated as of this
date, except that all statements and opinions contained therein shall be deemed
to relate to the Registration Statement and Prospectus (as such terms are
defined in the Distribution Agreement) as amended and supplemented to
this date.
This letter is delivered to you pursuant to Section 6(b) of the
Distribution Agreement.
Very truly yours,
6
<PAGE>
Exhibit 4.1
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
DC HOLDCO, INC.
THE WALT DISNEY COMPANY
AS GUARANTOR
SENIOR DEBT SECURITIES
----------------------------
INDENTURE
DATED AS OF
-----------------------------
TRUSTEE
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE(1)
TIA INDENTURE
SECTION SECTION
310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 13.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2; 13.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.4
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.4
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 13.2
315 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
-------------------
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TIA INDENTURE
SECTION SECTION
317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13.1
<PAGE>
TABLE OF CONTENTS(2)
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . . 6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . . 6
SECTION 1.4 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . 7
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . . . 8
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS . . . . . . . . . . . . . . 9
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATINg . . . . . .12
SECTION 2.5 REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . .15
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST . . . .16
SECTION 2.7 SECURITYHOLDER LISTS . . . . . . . . . . . . . . . . . . .16
SECTION 2.8 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . .16
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS . . . . . . . . . . . .16
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION 20
SECTION 2.11 TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . 21
SECTION 2.12 CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . 24
SECTION 2.14 PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . 26
SECTION 2.15 COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . 26
-------------------
(2) Note: This Table of Contents shall not, for any reason, be deemed to be
part of the Indenture.
i
<PAGE>
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. . . . . . . . . . . .27
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED . . . . . . . . . .27
SECTION 3.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . .27
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . .28
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . .29
SECTION 3.6 SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . .29
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . .30
SECTION 4.2 SEC REPORTS. . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.3 COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . .30
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS . . . . . . . . . . . . . . .30
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . .30
SECTION 4.6 ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . . . .30
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. . . . . . . . .33
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . .34
SECTION 6.2 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 6.3 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . .36
SECTION 6.4 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . .36
SECTION 6.5 CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . .37
SECTION 6.6 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . .37
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT . . . . . . . . . . .37
SECTION 6.8 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . .38
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . .38
SECTION 6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . .39
ii
<PAGE>
PAGE
SECTION 6.11 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . .39
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. . . . . . . . . .39
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . .40
SECTION 7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . .41
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. . . . . . . . . . . . .41
SECTION 7.4 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . .41
SECTION 7.5 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . .42
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . .42
SECTION 7.7 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . .42
SECTION 7.8 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . .43
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. . . . . . . . . . . . . . . .45
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . .45
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . .45
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES . . . . . . . . . . .45
SECTION 8.2 REPAYMENT TO THE COMPANY . . . . . . . . . . . . . . . . .46
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE . . . .46
SECTION 8.4 DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . .46
SECTION 8.5 COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . .46
SECTION 8.6 CONDITIONS TO DEFEASANCE AND COVENANT DEFEASANCE . . . . .47
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . .48
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . .49
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . .50
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS . .50
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . .51
iii
<PAGE>
PAGE
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. . . . . . . . . .51
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . .51
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . .51
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES . . . . .52
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND . . . . . . . . . . .52
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . . . . . .52
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. . . . . . . . . . . . . . .53
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. . . . . . . . . . . . . .53
SECTION 11.4 QUORUM; ACTION. . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . . . . . . . . . . . . . .54
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.. . . . . . . 55
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. . . . . . . . . . . . . . . . . .55
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY. . . . . . . . . . . . .58
SECTION 12.3 TERMINATION OF THE GUARANTY . . . . . . . . . . . . . . . . . .59
ARTICLE XIV
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . . . . .59
SECTION 13.2 NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . . . . . . . . .61
iv
<PAGE>
PAGE
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . . . .61
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . . . . .61
SECTION 13.6 SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . . .62
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. . . . . . . . . .62
SECTION 13.8 LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 13.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 13.10 NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . . . . .63
SECTION 13.11 SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . . .63
SECTION 13.13 BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . . .63
SECTION 13.14 MULTIPLE ORIGINALS. . . . . . . . . . . . . . . . . . . . . . .63
EXHIBIT A
FORM OF GUARANTY 66
V
<PAGE>
INDENTURE dated as of , by and among DC Holdco, Inc., a Delaware
corporation ("COMPANY"), The Walt Disney Company, a Delaware corporation, as
guarantor (the "GUARANTOR"), and , as trustee ("TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured deben-
tures, notes or other evidences of indebtedness (herein called the "SECURITIES")
to be issued in one or more series as in this Indenture provided.
The Company is a wholly owned subsidiary of the Guarantor.
The Guarantor has entered into an Amended and Restated Agreement and
Plan of Reorganization dated as of July 31, 1995 (the "Reorganization
Agreement") whereby Capital Cities/ABC, Inc., a New York corporation ("Capital
Cities") will become a Subsidiary of the Company (the "Acquisition"). The
Acquisition may be accomplished pursuant to the Reorganization Agreement or
other instruments effecting the business combination between the Guarantor and
Capital Cities.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
ratable benefit of the Holders of the Securities or each series thereof as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have mean-
ings correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or, at
the option of the Company, in an official language of the country of publica-
tion, customarily published on each Business Day, whether or not published on
Saturdays, Sundays or
<PAGE>
holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different Authorized Newspapers
meeting the foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security in the form (to the extent applicable
thereto) established pursuant to Section 2.1 which is payable to the bearer.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee of such board authorized with respect to any matter to exercise
the powers of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CASH" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres SA.
"COMPANY" means the party named as the "COMPANY" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company or the Guarantor, as the case may be, by its
Chairman of the Board, a Vice Chairman, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee or, with respect to Sections 2.4, 2.8,
2.11 and 7.2, any other employee of the Company or the Guarantor, as the case
may be, named in an Officers' Certificate delivered to the Trustee.
2
<PAGE>
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or include
such successor.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the Principal Amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"EURO-CLEAR" means the operator of the Euro-clear System.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GUARANTY" has the meaning set forth in Article XII.
"HOLDER" or "SECURITYHOLDER," when used with respect to any Security,
means, in the case of a Registered Security, a person in whose name a Security
is registered on the Registrar's books and, in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"INTEREST," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on which
the Principal of such Security or an installment of Principal or, in the case of
a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of accelera-
tion, call for redemption or otherwise.
3
<PAGE>
"OFFICER" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the informa-
tion specified in Sections 13.4 and 13.5, signed in the name of the Company
or the Guarantor, as the case may be, by its Chairman of the Board, a Vice
Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, the
Guarantor or the Trustee.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or govern-
ment or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 4.5, the
Principal of and any interest on the Securities of that series are payable as
specified as contemplated by Section 2.3(a).
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a mutilat-
ed, destroyed, lost or stolen coupon appertains shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security or the Security
to which the mutilated, destroyed, lost or stolen coupon appertains, as the case
may be.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
4
<PAGE>
"REDEMPTION DATE" or "REDEMPTION DATE," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered on
the books of the Registrar.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"SECURITYHOLDER" or "HOLDER," when used with respect to any Security, means
in the case of a Registered Security, a person in whose name a Security is
registered on the Registrar's books and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.13.
"STATED MATURITY," when used with respect to any Security or any install-
ment of Principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which an amount equal to the Principal of such Security or an installment of
Principal thereof or interest there on is due and payable.
"SUBSIDIARY" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries or (iii) one or
more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
5
<PAGE>
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"TRUSTEE" means the party named as the "TRUSTEE" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"UNITED STATES" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
"UNITED STATES ALIEN" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
SECTION 1.2 OTHER DEFINITIONS
Defined in
Term Section
--------------- ----------
"BANKRUPTCY LAW" 6.1
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.11
"LEGAL HOLIDAY" 13.8
"NOTICE OF DEFAULT " 6.1
"OUTSTANDING" 2.10
"PAYING AGENT" 2.5
"REGISTRAR" 2.5
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in
this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
6
<PAGE>
"INDENTURE SECURITY HOLDER" means a Holder or Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles in the United States
as in effect from time to time;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. The Registered Securities, if any, of each
series and the Bearer Securities, if any, of each series and related coupons
shall be in substantially such form (including global form) as shall be
established by delivery to the Trustee of an Officers' Certificate or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may, consis-
tently herewith, be determined by the Officers executing such Securities or
coupons as evidenced by their execution of the Securities or coupons. The
Officers' Certificate so establishing the form of Security or coupons, if any,
of any series shall be delivered to
7
<PAGE>
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 2.4 for the authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 2.3(a), Bearer
Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be printed, litho-
graphed or engraved or produced by any combination of these methods or may be
produced in any other manner, PROVIDED, that such method is permitted by the
rules of any securities exchange on which such Securities may be listed, all as
determined by the Officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount
of any increase or decrease in the amount of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the person or persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.4 or 2.11
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 13.4 or 13.5 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
8
<PAGE>
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS
(a) The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company (and, if any covenants,
agreements, or Events of Default relating to the Guarantor, or any provisions
of Article XII or any Guaranty, are affected thereby, of the Guarantor), or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for
any Securities which, pursuant to Section 2.4, are deemed never to have
been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
may be represented initially by a Security in temporary or permanent global
form and, if so, the initial Depositary with respect to any such temporary
or permanent global Security, and if other than as provided in Section 2.8
or Section 2.11, as applicable, whether and the circumstances under which
beneficial owners of interests in any such temporary or permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination;
(4) the person to whom any interest on any Registered Security of the
series shall be payable, if other than the person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, and the person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 2.2 and
Section 2.4, as applicable;
9
<PAGE>
(5) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provi-
sions or at the option of a Holder thereof, the conditions, if any, giving
rise to such obligation, and the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, and any
provisions for the remarketing of such Securities;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies, in
which payment of the Principal of and any interest on the Securities of the
series shall be payable if other than the currency of the United States,
and if so, whether the Securities of the series may be satisfied and
discharged other than as provided in Article VIII;
(12) if the amount of payments of principal of and any interest on the
Securities of the series is to be determined with reference to an index,
formula or other method, or based on a coin or currency other than that in
which the
10
<PAGE>
Securities are stated to be payable, the manner in which such amounts
shall be determined and the calculation agent, if any, with respect
thereto;
(13) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a United
States Alien (including any modification in the definition of such term),
in respect of any tax, assessment or governmental charge withheld or de-
ducted, under what circumstances and with what procedures and documentation
the Company will pay such additional amounts, whether such additional
amounts will be treated as interest or Principal pursuant to this Inden-
ture, and whether the Company will have the option to redeem such
Securities rather than pay additional amounts (and the terms of any such
option);
(15) if other than as defined in Section 1.1, the meaning of "BUSINESS
DAY" when used with respect to any Securities of the series;
(16) if and the terms and conditions upon which the Securities of the
series may or must be converted into securities of the Company or exchanged
for securities of the Company or another enterprise;
(17) if and the terms and conditions upon which the obligations of the
Company under the Securities of the series are guaranteed in a manner other
than as described in Article XII;
(18) any terms applicable to Original Issue Discount, if any, (as that
term is defined in the Internal Revenue Code of 1986 and the Regulations
thereunder) including the rate or rates at which such Original Issue
Discount, if any, shall accrue;
(19) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions; and
(20) other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
9.1(7)).
11
<PAGE>
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Registered Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 2.4. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, one of
its Vice Chairmen, its President or one of its Vice Presidents, or the Treasurer
or any Assistant Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together
12
<PAGE>
with a Company Order for the authentication and delivery of such Securities; and
the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities; PROVIDED, HOWEVER, that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Company to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if any,
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing; and PROVIDED, FURTHER,
that, in connection with its original issuance, no Bearer Security or coupon
shall be mailed or otherwise delivered to any person who is not a United States
Alien or to any location in the United States. Except as permitted by Section
2.9, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers' Certifi-
cates as permitted by Sections 2.1 and 2.3(a), in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) that the form and terms of such Securities and any coupons have been
duly authorized by the Company and established in conformity with the provisions
of this Indenture; and
(b) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
13
<PAGE>
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 2.3(a), as the case may be) will have been, duly authorized by
the Company and established in conformity with the provisions of this
Indenture; and
(y) that such Securities, together with the coupons, if any, apper-
taining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this Inden-
ture, and (3) issued by the Company in the manner and subject to any con-
ditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other docu-
ments delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 2.3(a) at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 2.3(a), each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
14
<PAGE>
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee's certificate of authentication shall be in substan-
tially the following form:
This is one of the Securities of the series designated therein re-
ferred to in the within-mentioned Indenture.
, as Trustee
By:
------------------------------------------
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 12.4 or 12.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.5 REGISTRAR AND PAYING AGENT. The Company shall maintain, with
respect to each series of Securities, an office or agency where such Securities
may be presented for registration of transfer or for exchange ("REGISTRAR") and
an office or agency where such Securities may be presented for purchase or
payment ("PAYING AGENT"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more co-
registrars and one or more additional paying agents. The term Paying Agent
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate
15
<PAGE>
compensation therefor pursuant to Section 7.7. The Company or any Subsidiary or
an Affiliate of either of them may act as Paying Agent, Registrar or co-
registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except as
otherwise provided herein, prior to or on each due date of payments in respect
of any series of Securities, the Company shall deposit with the Paying Agent
with respect to such Securities a sum of money sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all money held by such Paying Agent for
the making of payments in respect of the Securities of such series and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, a Paying Agent shall, upon
the written request of the Trustee, forthwith pay to the Trustee all money so
held in trust with respect to such Securities. If the Company, a Subsidiary or
an Affiliate of either of them acts as Paying Agent for a series of Securities,
it shall segregate the money held by it as Paying Agent with respect to such
Securities and hold it as a separate trust fund. The Company at any time may
require a Paying Agent for a series of Securities to pay all money held by it
with respect to such Securities to the Trustee and to account for any money
disbursed by it. Upon doing so, such Paying Agent shall have no further
liability for the money.
SECTION 2.7 SECURITYHOLDER LISTS. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of each series of Securities. If the Trustee is
not the Registrar for any series of Securities, the Company shall cause to be
furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Holders of such series of Securities dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may re-
quest in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of such series
of Securities.
SECTION 2.8 TRANSFER AND EXCHANGE. Upon surrender for registration of
transfer of any Security at the office or agency of the Company designated
pursuant to Section 4.5 for such purpose in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the
16
<PAGE>
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership or any exchange pursuant to Section 2.11, 3.6, 9.5 or 10.3, not
involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of any series may be ex-
changed for other Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may
not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be ex-
changed for Registered Securities of the same series of any authorized denomina-
tion or denominations and of a like aggregate Principal Amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto appertain-
ing. If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section
4.5, interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be
17
<PAGE>
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the Securi-
ties of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate Principal Amount equal to the
Principal Amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If
the beneficial owners of interests in a permanent global Security are entitled
to exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be
18
<PAGE>
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate Principal
Amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 2.3(a), shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; PROVIDED, HOWEVER, that notwithstanding the last paragraph of
this Section 2.8, no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; and PROVIDED, FURTHER,
that in connection with its original issuance, no Bearer Security or coupon
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any person that is not a United States Alien or
to any location in the United States. If a Registered Security is issued in
exchange for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and the opening
of business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Security in global form pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Registered Securities to
the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company
19
<PAGE>
and the Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on (A) if
Securities of the Series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS. If (a) any mutilated
Security or a Security with a mutilated coupon appertaining thereto is surren-
dered to the Trustee, or (b) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a BONA FIDE purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or coupon or in lieu of any such destroyed, lost or
stolen Security or coupon, or in exchange for the Security to which a mutilated,
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
mutilated, destroyed, lost or stolen), a new Security of the same series and of
like tenor and Principal Amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or coupon, or to the Security to which
such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; PROVIDED,
HOWEVER, that the Principal of and any interest on Bearer Securities shall,
except as otherwise provided in Section 4.5, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 2.3(a), any interest on Bearer
20
<PAGE>
Securities shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Securities under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security, or in exchange for a Security
to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
any such new Security and coupons, if any, shall be entitled to all benefits of
this Indenture equally and proportionately with any and all other Securities of
that issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities of any series "OUTSTANDING" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "OUTSTANDING" because the Company or an
Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite Principal Amount of Outstanding Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9). In addition, in determining whether the Holders of the
requisite Principal Amount of Outstanding Securities have given or concurred in
any request, demand, authorization, direction,
21
<PAGE>
notice, consent or waiver hereunder, (i) the Principal Amount of a Discount
Security that shall be deemed to be Outstanding shall be the amount of the
Principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 6.2,
(ii) the Principal Amount of a Security denominated in a foreign currency or
currencies shall be the Dollar equivalent, as determined on the date of original
issuance of such Security, of the Principal Amount (or, in the case of a
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities and any coupons thereto appertaining payable on that date, then on
and after that date such Securities shall cease to be outstanding and interest,
if any, on such Securities shall cease to accrue; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the Officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.5 in a Place of
Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series
22
<PAGE>
(accompanied by any unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like Principal Amount of definitive Securities of the same series and of like
tenor of authorized denominations; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security.
Until so exchanged the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities.
Unless otherwise specified as contemplated by Section 2.3(a), if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date speci-
fied in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
permanent Securities of the same series, in aggregate Principal Amount equal to
the Principal Amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities of the same series and of like tenor without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Security, an equal aggregate Principal Amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The permanent Securities to be
delivered in exchange for any such temporary global Security shall be in defini-
tive bearer form or registered form, or shall be represented by a permanent
global Security, or any combination thereof, as specified as contemplated by
Section 2.3(a), and, if any combination thereof is so specified, as requested by
the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for permanent Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 2.3(a). Unless other-
wise specified in such temporary global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary global Security,
except that a person receiving permanent Securities must bear the cost of insur-
ance, postage, transportation and the like in the event that such person does
not take delivery of such permanent Securities in person at the offices of Euro-
clear or Cedel S.A.
23
<PAGE>
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 2.3(a), interest payable on a temporary global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 2.3(a), for credit without further interest
on or after such Interest Payment Date to the respective accounts of the persons
who are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, any certificate specified as contemplated by Section 2.3(a).
SECTION 2.12 CANCELLATION. All Securities or coupons surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any sinking fund payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and all Registered Securities and matured
coupons so delivered shall be promptly cancelled by it. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued only
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and like tenor or the related coupons pursuant to Section 2.9. All
Bearer Securities and unmatured coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company may not reissue, or issue new Securities to replace, Securities it has
paid or delivered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted in the form of Securities for any
particular series or as permitted by this Indenture. All cancelled Securities
and coupons held by the Trustee shall be destroyed by the Trustee and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities,
24
<PAGE>
interest on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. In case
a Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency in a
Place of Payment for such series) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "DEFAULTED INTEREST") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as provided in this Clause. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-
class postage prepaid, to each Holder of Registered Securities at his
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the persons
in whose names the Securities (or their respective Prede-
25
<PAGE>
cessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.8,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.14 PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of Principal of and (except as otherwise speci-
fied as contemplated by Section 2.3(a) and subject to Section 2.8 and Section
2.13) interest on such Registered Security and for all other purposes what-
soever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Security
in global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
SECTION 2.15 COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on any
Securities which bear interest at a fixed rate shall be computed on the basis of
a 360-day year comprised of twelve 30-day months and (ii) interest on any
Securities which bear interest
26
<PAGE>
at a variable rate shall be computed on the basis of the actual number of days
in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, within the time period
specified below, notify the Trustee in writing of the Redemption Date, the
Principal Amount of and of any other information necessary to identify the
Securities of such series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the Principal
Amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The Trustee
shall make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
27
<PAGE>
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the Principal Amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security (or portion thereof) to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 13.2 need not
identify particular Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; PROVIDED,
HOWEVER, that, in all cases, the text of such Company Notice shall be prepared
by the Company.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is given, Securities called for redemption become due and payable on the Re-
demption Date and at the Redemption Price stated in the notice, and from and
after such date (unless the Company shall default in the payment of the Redemp-
tion Price and accrued interest) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 4.5)
and, unless otherwise specified as contemplated by Section 2.3(a), only upon
presentation and surrender of coupons for such interest; and PROVIDED, FURTHER,
that, unless otherwise specified as contemplated by Section 2.3(a), installments
of interest on Registered Securities whose Stated Maturity is on or prior to
28
<PAGE>
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Dates according to their terms and the provisions of
Sections 2.8 and 2.13.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be fur-
nished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 4.5) and, unless otherwise specified as contemplated by Section 2.3(a),
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, of all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 SECURITIES REDEEMED IN PART. Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and upon such surrender, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security a new Registered
Security or Securities of the same series and of like tenor, in an authorized
denomination as requested by such Holder, equal in aggregate Principal Amount to
and in exchange for the unredeemed portion of the Principal of the Security
surrendered.
29
<PAGE>
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of each series of Securities on the dates and in the manner
provided in the Securities and any coupons appertaining thereto and, to the
extent not otherwise so provided, pursuant to this Indenture. An installment of
Principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an Affili-
ate of the Company) holds on that date funds (in the currency or currencies of
payment with respect to such Securities) designated for and sufficient to pay
such installment. Unless otherwise specified as contemplated by Section 2.3(a)
with respect to any series of Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature. At the Company's option, payments of Principal or
interest may be made by check or by transfer to an account maintained by the
payee subject, in the case of Bearer Securities, to the provisions of Section
4.5.
SECTION 4.2 SEC REPORTS. The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
So long as any Guaranty is in effect, the Guarantor shall file with
the Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Guarantor is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act.
SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company (begin-
ning with the fiscal year ending on September 30, 1996) an Officers' Certificate
stating whether or not the signers know of any Default (including without
limitation, with respect to the Guarantor) that occurred during such period.
If they do, such Officers' Certificate shall describe the Default and its
status.
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as
30
<PAGE>
may be reasonably necessary or proper to carry out more effectively the purposes
of this Indenture.
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
the City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, purchase or redemp-
tion and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 4.6), and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The office of the Trustee at
, New York, New York , Attention: shall
be such office or agency for all of the aforesaid purposes unless the Company
shall maintain some other office or agency for such purposes and shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such other office or agency. If at any time the Company shall fail
to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 4.6) at the place specified for that purpose as contemplated by
Section 2.3(a) or, if no such place is specified, at the main office of the
Trustee in London, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
31
<PAGE>
No payment of Principal or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States, by check mailed to
any address in the United States, by transfer to an account located in the
United States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; PROVIDED, HOWEVER, that, if the
Securities of a series are denominated and payable in Dollars, payment of
Principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section 4.6)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such Principal, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.6 ADDITIONAL AMOUNTS. If specified as contemplated by
Section 2.3(a), the Securities of a series may provide for the payment of
additional amounts, and in such case, the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto additional amounts as
provided therein. Wherever in this Indenture there is mentioned, in any
context, the payment of the Principal of or any interest on, or in respect of,
any Security of any series or payment of any related coupon, such mention shall
be deemed to include mention of the payment of additional amounts provided for
in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which payment of Principal is
made), and at least 10 days prior to each date of payment of Principal and any
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
32
<PAGE>
and the Company's Paying Agent or Paying Agents, if other than the Trustee, with
an Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of Principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are United States Aliens without withholding for or on ac-
count of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by the Securities of such series and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY AND GUARANTOR MAY MERGE OR TRANSFER ASSETS.
Neither the Company nor, for so long as the Guaranty is in effect, the Guarantor
shall consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company or the Guarantor, as the case may be,
shall be the continuing corporation or (2) the person (if other than
the Company or the Guarantor, as the case may be) formed by such
consolidation or into which the Company or the Guarantor is merged or
the person which acquires by conveyance, transfer or lease the
properties and assets of the Company or the Guarantor substantially
as an entirety (i) shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States
or any state thereof or the District of Columbia and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of
the obligations of the Company under the Securities and this Indenture
or all of the obligations of Guarantor under the Guaranty and this
Indenture, as the case may be;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a
33
<PAGE>
supplemental indenture is required in connection with such transac-
tion, such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been satisfied.
The successor person formed by such consolidation or into which the
Company or the Guarantor is merged or the successor person to which such con-
veyance, transfer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or the Guarantor, as the case
may be, under this Indenture with the same effect as if such successor had been
named as the Company or the Guarantor, as the case may be, herein; and
thereafter, except in the case of a lease of its properties and assets substan-
tially as an entirety, the Company or the Guarantor, as the case may be, shall
be discharged from all obligations and covenants under this Indenture, the
Securities, the Guaranty and coupons. Notwithstanding the foregoing, in the
event the Acquisition does not occur, the Company may consolidate with or merge
into the Guarantor and, upon such consolidation or merger, the Securities and
all obligations thereunder and under the Indenture will thereafter become the
sole obligation of the Guarantor (and will bind the Guarantor as if all
references herein to "the Company" were to the "Guarantor") without any action
on the part of the Guarantor, the Company, the Trustee or any other person (in
such event, any Guarantees previously issued by the Guarantor shall be of no
further force or effect).
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, an
"EVENT OF DEFAULT" occurs, with respect to each series of the Securities
individually, if:
(1) the Company defaults in (a) the payment of the principal of
any Security of such series at its Maturity or (b) the payment of any
interest upon any Security of such series when the same becomes due
and payable and continuance of such default for a period of 30 days;
(2) the Company or the Guarantor fails to comply with any of its
agreements in the Securities or this Indenture (other than those
referred to in clause (1) above and other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of a series of Securities
other than such series) and such failure continues for 60 days after
receipt by the Company or the Guarantor of a Notice of Default;
34
<PAGE>
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or the Guarantor in an involuntary case or proceeding under
any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company or the Guarantor, bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or the Guarantor under any applicable federal
or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or the Guarantor or of any substantial part of its property,
or ordering the wind up or liquidation of its affairs, and any such
decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of
60 consecutive days;
(4) (a) the Company or the Guarantor commences a voluntary case or
proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (b) the Company or
the Guarantor consents to the entry of a decree or order for relief in
respect of the Company or the Guarantor in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, (c) the
Company or the Guarantor files a petition or answer or consent seeking
reorganization or substantially comparable relief under any applicable
federal state law, (d) the Company or the Guarantor (x) consents to
the filing of such petition or the appointment of, or taking
possession by, a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or the Guarantor or of
any substantial part of its property, (y) makes an assignment for the
benefit of creditors or (z) admits in writing its inability to pay its
debts generally as they become due or (e) the Company or the Guarantor
takes any corporate action in furtherance of any such actions in this
clause (4);
(5) a Guaranty, whether pursuant to Article XII or as provided for
in Section 2.3(a), shall for any reason cease to be, or be asserted in
writing by a responsible officer of the Guarantor not be, in full
force and effect, except to the extent contemplated by the Indenture;
or
(6) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing, upon the termination of any
Guaranty pursuant to Article XII, the occurence of an event set forth in
clauses (2) through (6) above with respect to the Guarantor shall not
constitute an Event of Default hereunder.
"BANKRUPTCY LAW" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. "CUSTODIAN" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the
35
<PAGE>
Default and the Company does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "NOTICE OF
DEFAULT."
SECTION 6.2 ACCELERATION. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of that series by notice to the Company and
the Trustee, may declare the Principal Amount (or, if any of the Securities of
that series are Discount Securities, such portion of the Principal Amount of
such Securities as may be specified in the terms thereof) of all the Securities
of that series to be immediately due and payable. Upon such a declaration, such
Principal (or portion thereof) shall be due and payable immediately. If an
Event of Default specified in Section 6.1(3) or (4) occurs and is continuing,
the Principal (or portion thereof) of all the Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration with respect to that series and its consequences if the
rescission would not conflict with any judgment or decree and all existing
Events of Default with respect to Securities of such series have been cured or
waived except nonpayment of the Principal (or portion thereof) of Securities of
such series that has become due solely as a result of such acceleration and if
all amounts due to the Trustee under Section 7.7 have been paid. No such re-
scission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.3 OTHER REMEDIES. If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or coupons or does not produce any of the
Securities or coupons in the proceeding. A delay or omission by the Trustee or
any Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
36
<PAGE>
SECTION 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series and any related
coupons waive an existing Default with respect to such series and its
consequences except (1) an Event of Default described in Section 6.1(1) with
respect to such series or (2) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of the Holder of each Out-
standing Security of such series affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee with respect to the Securities of such series. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
or that the Trustee determines in good faith is unduly prejudicial to the
rights of other Securityholders or would involve the Trustee in personal
liability.
SECTION 6.6 LIMITATION ON SUITS. A Holder of any Security of any
series or any related coupons may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of
the Outstanding Securities of that series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense satis-
factory to the Trustee;
(4) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a
direction inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over
any other Securityholder.
37
<PAGE>
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right, which is absolute and uncondi-
tional, of any Holder of any Security or coupon to receive payment of the
Principal of and (subject to Section 2.13) interest on such Security or payment
of such coupon on the Stated Maturity or Maturities expressed in such Security
or coupon (or, in the case of redemption, on the Redemption Date) held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected adversely without
the consent of each such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.1(1) with respect to Securities of any series occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount owing with respect
to such series of Securities and the amounts provided for in Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
Principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensa-
tion, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amount due the Trustee
under Section 7.7) and of the Holders of Securities and cou-
pons allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities and coupons, to pay the Trustee any amount due it
for the reasonable compensation, expens-
38
<PAGE>
es, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Senior Indebtedness to authorize or consent to or accept or
adopt on behalf of any Holder of a Security or coupon any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided for in
Article XIII;
THIRD: to Securityholders for amounts due and unpaid for the Princi-
pal and interest on the Securities and interest evidenced by coupons in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for Principal and interest, respectively;
and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the enforcement of the payment of the Principal of or
interest on any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
39
<PAGE>
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the execu-
tion of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specif-
ically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correct-
ness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
40
<PAGE>
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for any interest on any money received by it except as the
Trustee may otherwise agree with the Company.
SECTION 7.2 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any docu-
ment believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
or coupons and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar
or co-registrar or any other agent of the Company may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities or coupons.
The Trustee shall not be accountable for the Company's use of the proceeds from
the Securities and, shall not
41
<PAGE>
be responsible for any statement in the registration statement for the Securi-
ties under the Securities Act of 1933, as amended, or in the Indenture or the
Securities or any coupons (other than its certificate of authentication) or for
the determination as to which beneficial owners are entitled to receive any
notices hereunder.
SECTION 7.5 NOTICE OF DEFAULTS. If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. Except in the case of a Default described in Section
6.1(1) with respect to any Security of such series or a Default in the payment
of any sinking fund installment with respect to any Security of such series, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of the Holders of Securities of such series.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder of Securities a brief report dated as of such
May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of
Securities shall be filed with the SEC and each stock exchange on which the
Securities of that series may be listed. The Company agrees to notify the
Trustee whenever the Securities of a particular series become listed on any
stock exchange and of any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable com-
pensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all rea-
sonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses, advances and disbursements of its agents and coun-
sel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself
against any claim or liability
42
<PAGE>
in connection with the exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
the Principal of or interest, if any, on particular Securities or for the
payment of particular coupons.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.8. The Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to Holders of Securities of the particular series with
43
<PAGE>
respect to which such successor Trustee has been appointed. The retiring Trust-
ee shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts here-
under by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees as co-Trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of such series at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
If the Trustee fails to comply with Section 7.10, any Holder of a
Security of such series may petition any court of competent jurisdiction for the
removal of such Trustee and the appointment of a successor Trustee.
44
<PAGE>
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9). In determining whether the
Trustee has conflicting interests as defined in TIA Section 310(b)(1), the
provisions contained in the proviso to TIA Section 310(b)(1) shall be deemed
incorporated herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor relation-
ship listed in TIA Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. Except as otherwise
contemplated by Section 2.3(a), when (a) the Company delivers to the Trustee all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be, theretofore authenticated and delivered and all coupons, if any, apper-
taining thereto (other than (i) coupons appertaining to Bearer Securities sur-
rendered for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as provided in
Section 2.8, (ii) Securities or Securities of such series, as the case may be,
and coupons, if any, which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, (iii) coupons, if any, apper-
taining to Securities or Securities of such series, as the case may be, called
for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 3.4, and (iv) Securities or Securities of
such series, as the case may be, and coupons, if any, for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 2.4) for cancellation or (b) all Outstanding Securities have
become due and payable and the Company deposits with the Trustee cash sufficient
to pay at Stated Maturity the Principal Amount of all Principal of and interest
on Outstanding Securities or all Outstanding Securities of such series (other
than Securities replaced pursuant to Section 2.9), and if in either case the
45
<PAGE>
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.7, cease to be of further effect as to all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officers' Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION 8.2 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company on Company Request any money held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company cause to be published once in an Authorized Newspaper in each Place of
Payment of or mail to each such Holder notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed money then remaining
will be returned to the Company. After return to the Company, Holders entitled
to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company, may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in Article VIII.
SECTION 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's exercise
under Section 8.3 of the option applicable to this Section 8.2, the Company and
the Guarantor, if any, shall be deemed to have been discharged from their
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter "defeasance"). For this purpose,
such defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the defeased Securi-
ties, which shall thereafter be deemed to be "outstanding" only for the purposes
of Sections 2.4, 2.5,2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8 and 8.2
of this Indenture and to have satisfied all its other obligations under such
series of Securities and this Indenture insofar as such series of Securities are
concerned (and the Trustee, at the expense of the Company, and, upon written
request, shall execute proper instruments acknowledging the same). Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.4 notwithstanding the prior exercise of its option under Section
8.5 with respect to a series of Securities.
SECTION 8.5 COVENANT DEFEASANCE. Upon the Company's exercise under
Section 13.1 of the option applicable to this Section 8.5, the Company and the
Guarantor, if
46
<PAGE>
any, shall be release from their obligations under Sections 4.2 and 4.3 and
Article V and such other provisions as may be provided as contemplated by
Section 2.3(a) with respect to Securities of a particular series and with
respect to the Defeased Securities on and after the date the conditions set
forth below are satisfied (hereinafter "covenant defeasance"), and the Defeased
Securities shall thereafter be deemed to be not "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences if any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason of any refer-
ence elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provisions herein or in
any other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 6.1 but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds in the currency or currency unit in which the
Securities of such series are denominated to pay the Principal of and interest
to Stated Maturity (or redemption) on, the Debt Securities of such series, or
(ii) such amount of direct obligations of, or obligations the principal of and
interest on which are fully guaranteed by, the government which issued the
currency in which the Securities of such series are denominated, and which are
not subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Debt Securities of such
series.
(b) The Company shall (i) have delivered an opinion of counsel that
the Holders of the Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such defea-
sance, and will be subject to tax in the same manner as if no defeasance and
discharge or covenant defeasance, as the case may be, had occurred or (ii) in
the case of an election under Section 8.4 the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date this Indenture was first executed, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel in the United States shall
confirm that, the
47
<PAGE>
holders of Outstanding Securities of that particular series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company, the
Guarantor and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company for the benefit of the Holders of all of the Securities or any
series thereof, or to surrender any right or power herein conferred
upon the Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to Principal, to
change or eliminate any restrictions (including restrictions relating
to payment in the United States) on the payment of Principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit the issuance of Securities in
uncertificated form; or
(4) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 2.1 and 2.3(a),
respectively; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.8; or
(6) to cure any ambiguity, defect or inconsistency; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or
more series of Securities), PROVIDED that any such addition, change or
elimination shall neither (A) apply to any Security of any series
created prior to the execution of such supplemental
48
<PAGE>
indenture and entitled to the benefit of such provision nor (B) modify
the rights of the Holder of any such Security with respect to such
provision; or
(8) to remove the Guarantor and references to the Guaranty (as
hereafter defined) upon the occurrence of the events specified in
Section 12.3 of this Indenture;
(9) to secure the Securities; or
(10) to make any other change that does not adversely affect the
rights of any Securityholder.
SECTION 9.2 Supplemental Indentures with Consent of Holders. With
the written consent of the Holders of at least a majority in aggregate
Principal Amount of the Outstanding Securities of each series affected by
such supplemental indenture, the Company, the Guarantor and the Trustee may
amend this Indenture or the Securities of any series or may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
the Securities of such series and any related coupons under this Indenture;
PROVIDED, HOWEVER, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the Principal of, or any
installment of Principal or interest on, any such Security, or reduce
the Principal Amount thereof or the rate of interest thereon or any
premium payable upon redemption thereof or reduce the amount of Prin-
cipal of any such Discount Security that would be due and payable upon
a declaration of acceleration of maturity thereof pursuant to Section
6.2, or change the Place of Payment, or change the coin or currency in
which, any Principal of, or any installment of interest on, any such
Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such amendment or supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) with respect to the Securities of such series provided
for in this Indenture;
49
<PAGE>
(3) make any change in the terms of any Guaranty of any series of
the Securities in a manner adverse to the rights of the holders of the
Securities of such series; or
(4) modify any of the provisions of this Section, Section 6.4 or
6.7, except to increase the percentage of Outstanding Securities of
such series required for such actions to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplemental indenture, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplemental indenture under this Section 9.2
becomes effective, the Company shall mail to each Holder of the particular
Securities affected thereby a notice briefly describing the amendment.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the Company or an agent of the Company certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver with respect
50
<PAGE>
to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of such series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for outstanding Securities of that series.
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby, except
to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.3(a) for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for
51
<PAGE>
by the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 10.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of the Securities of such series.
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series with the same
issue date, interest rate and Stated Maturity (other than any previously
called for redemption), together in the case of any Bearer Securities of such
series with the same issue date, interest rate and Stated Maturity with all
unmatured coupons appertaining thereto, and (2) may apply as a credit
Securities of a series with the same issue date, interest rate and Stated
Maturity which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of such series with the
same issue date, interest rate and Stated Maturity; PROVIDED that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 10.2 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Secu-
rities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.4
and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice,
52
<PAGE>
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 11.1, to be held at such time and at such place
in the Borough of Manhattan, The City of New York or, for a series of
Securities issued as Bearer Securities, in London as the Trustee shall
determine or, with the approval of the Company, at any other place. Notice
of every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in
Section 13.2, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or for a series of Securities issued as Bearer Securities,
in London, or in such other place as shall be determined and approved by the
Company, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 11.4 QUORUM; ACTION. The persons entitled to vote a majority
in Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned
53
<PAGE>
meeting, such adjourned meeting may be further adjourned for a period determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 11.2(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in Principal Amount of the Outstanding Securities of that series;
PROVIDED, HOWEVER, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in Principal Amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in Principal Amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 11.7 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 11.7 or
other proof.
54
<PAGE>
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 11.2 (b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to vote with respect to the Outstanding Securities of such
series held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast
or counted at any meeting in respect to any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.2 at which a quorum is present may be adjourned from time
to time by persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be
55
<PAGE>
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance with the
provisions of this Article, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Proof
of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 7.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 11.6.
(b) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Registered Securities
held by the person, and the date of holding the same, shall be proved by the
books of the Registrar.
(d) The Principal Amount and serial numbers of Bearer Securities held
by any person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The Principal Amount and
serial numbers of Bearer Securities held by any person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
56
<PAGE>
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other act of the Holder of any Security in accordance with this
Section shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Outstanding Securities or Outstanding Securities of a series, as the case may
be, have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the Outstanding Securities or Outstanding Securities of the series, as
the case may be, shall be computed as of such record date; PROVIDED, that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless such request, demand, authorization, direction,
notice, consent, waiver or other act shall become effective pursuant to the
provisions of clause (a) of this Section 11.7 not later than six months after
the record date.
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY. The provisions of this Article shall be
applicable to any issuance of a series of Securities as to which payment
obligations thereunder, to the extent specified as contemplated by Section
2.3(a), are to be guaranteed by the Guarantor.
(a) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Guarantor hereby
irrevocably and unconditionally guarantees (the "Guaranty") to each Holder of a
Security of a particular series authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns that: (x) the Principal of and
interest on the Securities will be paid in full when due, whether at Maturity or
Interest Payment Date or otherwise; (y) all other obligations of the Company to
the Holders or the Trustee under this Indenture or the Securities will be
promptly paid in full or performed, all in accordance with the terms of this
Indenture and
57
<PAGE>
the Securities of such series; and (z) in case of any extension of time of
payment or renewal of any Securities of such series or any of such other obliga-
tions, they will be paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason, the Guarantor
shall be obligated to pay the same before failure so to pay becomes an Event of
Default.
(b) The Guarantor hereby agrees that its obligations with regard to
this Guaranty shall be unconditional, irrespective of the validity, regularity
or enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstances that might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company or right to require the
prior disposition of the assets of the Company to meet their obligations,
protest, notice and all demands whatsoever and covenants that this Guaranty will
not be discharged except by complete performance of the obligations contained in
the Securities and this Indenture or otherwise in accordance with this Indenture
or as specified as contemplated by Section 2.3(a) with respect to Securities of
a particular series.
It is the intention of the Guarantor and the Company that the obliga-
tions of the Guarantor hereunder shall be in, but not in excess of, the maximum
amount permitted by applicable law. Accordingly, if the obligations in respect
of the Guaranty would be annulled, avoided or subordinated to the creditors of
the Guarantor by a court of competent jurisdiction in a proceeding actually
pending before such court as a result of a determination both that such Guaranty
was made without fair consideration and that, at the time thereof, immediately
after giving effect thereto, or at the time that any demand is made thereupon
the Guarantor was insolvent or unable to pay its debts as they mature or left
with an unreasonably small capital, then the obligations of the Guarantor under
the Guaranty shall be reduced by such an amount, if any, that would result in
the avoidance of such annulment, avoidance or subordination; PROVIDED, HOWEVER,
that any reduction pursuant to this paragraph shall be made in the smallest
amount as is necessary to reach such result. For purposes of this paragraph,
"fair consideration," "insolvency," "unable to pay its debts as they mature,"
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY. To evidence its
Guaranty set forth in Section 12.1, the Guarantor agrees that a notation of such
Guaranty substantially in the form annexed hereto as Exhibit A or as otherwise
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series shall be endorsed on each Security authenticated and delivered
by the Trustee and that this Indenture shall be
58
<PAGE>
executed on behalf of such Guarantor by two Authorized Representatives or by one
Authorized Representative with an attestation by another Authorized Representa-
tive, by manual or facsimile signature.
The Guarantor agrees that its Guaranty set forth in Section 12.1
shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such
Guaranty.
If an Authorized Representative whose signature is on a Security
no longer holds that office at the time the Trustee authenticates the Security
on which a Guaranty is endorsed, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authenti-
cation thereof hereunder, shall constitute due delivery of the Guaranty set
forth in this Indenture on behalf of each Guarantor.
SECTION 12.3 TERMINATION OF THE GUARANTY. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series, the Guarantor's obligations under the Guaranty and this
Indenture shall terminate immediately and automatically upon the consummation
of the Acquisition without any action on the part of the Company, the
Guarantor, the Trustee or any other person. The Guarantor intends to
Guarantee the obligations of the Company under the Securities and this
Indenture only for the period that the Company is a wholly owned subsidiary
of the Guarantor. From and after the time that Capital Cities becomes a
subsidiary or an Affiliate of the Company, the Trustee and Holders of
Securities, whether then outstanding or issued thereafter, shall look only to
the Company for performance under this Indenture and the Securities and shall
have no further rights or remedies under the Guaranty or this Article XII.
From and after the time the Guaranty terminates under this Article XII, any
certificates authenticated and delivered pursuant to Section 2.4 shall not
include the form of Guaranty attached hereto as Exhibit A.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
59
<PAGE>
if to the Company:
DC Holdco, Inc.
500 South Buena Vista Street
Burbank, CA 91521
Attention: Legal Department
if to the Guarantor:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Legal Department
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Registered Securities
shall be mailed to such Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. Notice shall be sufficiently
given to Holders of Bearer Securities if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such publication to
be not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders
60
<PAGE>
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the address-
ee.
If the Company mails a notice or communication to the Holders of
Securities of a particular series, it shall mail a copy to the Trustee and each
Registrar, co-registrar or Paying Agent, as the case may be, with respect to
such series.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
acceptance of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company and the Trustee, the Registrar or the Paying Agent with
respect to a particular series of Securities, and anyone else, shall have the
protection of TIA Section 312(c).
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
61
<PAGE>
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate
or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the exami-
nation or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant
or condition has been complied with.
SECTION 13.6 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR With respect
to the Securities of a particular series, the Trustee with respect to such
series of Securities may make reasonable rules for action by or a meeting of
Holders of such series of Securities. With respect to the Securities of a
particular series, the Registrar and the Paying Agent with respect to such
series of Securities may make reasonable rules for their functions.
SECTION 13.8 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than a
Business Day. If any specified date (including an Interest Payment Date, Re-
demption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or Principal need not be made at such Place of Payment, or
such
62
<PAGE>
other action need not be taken, on such date, but the action shall be taken on
the next succeeding day that is not a Legal Holiday at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or such other date and to the extent
applicable no Original Issue Discount or interest, if any, shall accrue for the
intervening period.
SECTION 13.9 GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE
GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 NO RECOURSE AGAINST OTHERS A director, officer,
employee or stockholder, as such, of the Company or the Guarantor shall not
have any liability for any obligations of the Company or the Guarantor under
the Securities, the Guarantees or this Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By
accepting a Security, each Holder of such Security shall waive and release
all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 13.11 SUCCESSORS All agreements of the Company and the
Guarantor in this Indenture and the Securities and the Guarantees shall bind its
respective successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 13.13 BENEFITS OF INDENTURE Nothing in this Indenture or in
the Securities or Guarantees, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder and the Holders
of Securities, any benefits or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 13.14 MULTIPLE ORIGINALS The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
63
<PAGE>
DC HOLDCO, INC.
By:
----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
, as Trustee
By
---------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
THE WALT DISNEY COMPANY
as Guarantor
By:
---------------------------
Name:
Title:
64
<PAGE>
Attest:
-----------------------------
Name:
Title:
65
<PAGE>
EXHIBIT A
FORM OF GUARANTY
For value received, The Walt Disney Company, a Delaware corpora-
tion, hereby fully and unconditionally guarantees to the Holder of the Security
upon which this Guaranty is endorsed the due and punctual payment, as set forth
in the Indenture pursuant to which such Security and this Guaranty were issued,
of the Principal of and interest on such Security when and as the same shall
become due and payable for any reason according to the terms of such Security
and Article XII of the Indenture. The Guaranty of the Security upon which this
Guaranty is endorsed will terminate automatically upon the occurrence of certain
events as provided in Article XII of the Indenture, including without limitation
the consummation of the acquisition of Capital Cities/ABC, Inc. by The Walt
Disney Company. The Guaranty of the Security upon which this Guaranty is en-
dorsed will not become effective until the Trustee signs the certificate of
authentication on such Security.
THE WALT DISNEY COMPANY
By:
---------------------------
Attest:
---------------------------
66
<PAGE>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DC HOLDCO, INC.
THE WALT DISNEY COMPANY, AS GUARANTOR
SENIOR SUBORDINATED DEBT SECURITIES
------------------------------
INDENTURE
DATED AS OF
------------------------------
TRUSTEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE1
TIA INDENTURE
SECTION SECTION
------- ---------
310 (a)(1)............................................... 7.8; 7.10
(a)(2).............................................. 7.10
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 7.10
(b).................................................. 7.8; 7.10
(c)........................................................ N.A
311 (a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312 (a)........................................................ 2.7
(b)....................................................... 14.3
(c)....................................................... 14.3
313 (a)....................................................... 7.6
(b)........................................................ 7.6
(c).................................................. 7.6; 14.2
(d)........................................................ 7.6
314 (a).................................................. 4.2; 14.2
(b)....................................................... N.A.
(c)(1).................................................... 14.4
(c)(2).................................................... 14.4
(c)(3).................................................... N.A.
(d)..................................................... N.A.
(e)...................................................... 14.5
(f)...................................................... 4.3
315 (a)...................................................... 7.1
(b)................................................... 7.5; 14.2
315 (c)......................................................... 7.1
(d)......................................................... 7.1
(e)........................................................ 6.11
316 (a)(1)(a)................................................... 6.5
(a)(1)(b)................................................... 6.4
(a)(2).................................................... N.A.
(b)........................................................ 6.7
(c)....................................................... N.A.
-----------------
1 Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TIA INDENTURE
SECTION SECTION
------- ---------
317 (a)(1)..................................................... 6.8
(a)(2)..................................................... 6.9
(b)........................................................ 2.6
318 (a)....................................................... 14.1
<PAGE>
TABLE OF CONTENTS(2)
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS......................................... 1
SECTION 1.2 OTHER DEFINITIONS................................... 6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT... 7
SECTION 1.4 RULES OF CONSTRUCTION............................... 7
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY..................................... 8
SECTION 2.2 SECURITIES IN GLOBAL FORM........................... 8
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS...................... 9
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING...... 12
SECTION 2.5 REGISTRAR AND PAYING AGENT.......................... 16
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST.. 16
SECTION 2.7 SECURITYHOLDER LISTS................................ 16
SECTION 2.8 TRANSFER AND EXCHANGE............................... 17
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS.................. 20
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF
HOLDERS' ACTION..................................... 21
SECTION 2.11 TEMPORARY SECURITIES................................ 22
SECTION 2.12 CANCELLATION........................................ 24
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...... 25
SECTION 2.14 PERSONS DEEMED OWNERS............................... 26
SECTION 2.15 COMPUTATION OF INTEREST ............................ 27
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE................ 27
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED............. 27
SECTION 3.3 NOTICE OF REDEMPTION............................... 28
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION..................... 28
-----------------
2 Note: This Table of Contents shall not, for any purpose, be deemed to
be part of the Indenture.
i
<PAGE>
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE........................ 29
SECTION 3.6 SECURITIES REDEEMED IN PART........................ 30
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES.............................. 30
SECTION 4.2 SEC REPORTS........................................ 30
SECTION 4.3 COMPLIANCE CERTIFICATE............................. 31
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS....................... 31
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY.................... 31
SECTION 4.6 ADDITIONAL AMOUNTS................................. 32
SECTION 4.7 LIMITATIONS ON THE INCURRENCE OF CERTAIN
OTHER DEBT......................................... 33
SECTION 4.8 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER
GUARANTOR DEBT..................................... 33
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS.......... 33
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.................................. 35
SECTION 6.2 ACCELERATION....................................... 36
SECTION 6.3 OTHER REMEDIES..................................... 37
SECTION 6.4 WAIVER OF PAST DEFAULTS............................ 37
SECTION 6.5 CONTROL BY MAJORITY................................ 37
SECTION 6.6 LIMITATION ON SUITS................................ 38
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT............... 38
SECTION 6.8 COLLECTION SUIT BY TRUSTEE......................... 38
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM................... 39
SECTION 6.10 PRIORITIES......................................... 39
SECTION 6.11 UNDERTAKING FOR COSTS.............................. 40
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS............ 40
ARTICLE VII
ii
<PAGE>
PAGE
----
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.................................. 41
SECTION 7.2 RIGHTS OF TRUSTEE.................................. 42
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC.................. 42
SECTION 7.4 TRUSTEE'S DISCLAIMER............................... 42
SECTION 7.5 NOTICE OF DEFAULTS................................. 42
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS...................... 43
SECTION 7.7 COMPENSATION AND INDEMNITY......................... 43
SECTION 7.8 REPLACEMENT OF TRUSTEE............................. 44
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER........................ 45
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION...................... 45
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.. 46
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES............... 46
SECTION 8.2 REPAYMENT TO THE COMPANY........................... 46
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. 47
SECTION 8.4 DEFEASANCE AND DISCHARGE........................... 47
SECTION 8.5 COVENANT DEFEASANCE................................ 47
SECTION 8.6 CONDITIONS TO DEFEASANCE AND COVENANT DEFEASANCE... 48
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. 48
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.... 50
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT................ 51
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS,
WAIVERS AND ACTIONS................................ 51
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES.............. 51
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES............ 52
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES.................. 52
iii
<PAGE>
PAGE
----
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE.......................... 52
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES................................... 52
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND......... 53
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED......... 53
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS................ 53
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS.............. 54
SECTION 11.4 QUORUM; ACTION.................................... 54
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS......................... 55
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS... 56
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY...................... 56
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY.......................................... 58
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY............ 59
SECTION 12.3 TERMINATION OF THE GUARANTY....................... 60
ARTICLE XIII
SUBORDINATION
SECTION 13.1. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS..... 60
SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.... 61
SECTION 13.3. ACCELERATION OF SECURITIES........................ 62
SECTION 13.4. DEFAULT IN SENIOR INDEBTEDNESS.................... 63
SECTION 13.5. PAYMENT PERMITTED IF NO DEFAULT................... 64
SECTION 13.6. SUBROGATION RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS...................................... 64
iv
<PAGE>
Page
----
SECTION 13.7. PROVISION SOLELY TO DEFINE RELATIVE RIGHTS........ 65
SECTION 13.8. TRUSTEE TO EFFECTUATE SUBORDINATION............... 65
SECTION 13.9. NO WAIVER OF SUBORDINATION PROVISIONS............. 65
SECTION 13.10. NOTICE TO TRUSTEE................................. 66
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT................................. 66
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS...................................... 67
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.................. 67
SECTION 13.14. ARTICLE XIII APPLICABLE TO PAYING AGENTS.......... 67
SECTION 13.15 SUBORDINATION OF GUARANTY......................... 68
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 TRUST INDENTURE ACT CONTROLS...................... 69
SECTION 14.2 NOTICES........................................... 69
SECTION 14.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS....... 70
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT 71
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..... 71
SECTION 14.6 SEPARABILITY CLAUSE............................... 71
SECTION 14.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR...... 71
SECTION 14.8 LEGAL HOLIDAYS.................................... 72
SECTION 14.9 GOVERNING LAW..................................... 72
SECTION 14.10 NO RECOURSE AGAINST OTHERS........................ 72
SECTION 14.11 SUCCESSORS........................................ 72
SECTION 14.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS.......... 72
SECTION 14.13 BENEFITS OF INDENTURE............................. 72
SECTION 14.14 MULTIPLE ORIGINALS................................ 72
EXHIBIT A
FORM OF GUARANTY 75
<PAGE>
INDENTURE dated as of , by and among DC Holdco, Inc., a Delaware
corporation ("COMPANY"), The Walt Disney Company, a Delaware corporation, as
guarantor (the "Guarantor"), and , as trustee ("TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES") to be issued in one or more series as in this Indenture
provided.
The Company is a wholly owned subsidiary of the Guarantor.
The Guarantor has entered into an Amended and Restated Agreement and
Plan of Reorganization dated as of July 31, 1995, (the "Reorganization
Agreement") whereby with Capital Cities/ABC, Inc., a New York corporation
("Capital Cities") will become a Subsidiary of the Company (the "Acquisition").
The Acquisition may be accomplished pursuant to the Reorganization Agreement's
other instruments effecting the business combination between the Guarantor and
Capital Cities.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of the Holders of the Securities or of each series
thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or, at
the option of the Company, in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or
<PAGE>
holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different Authorized Newspapers
meeting the foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is payable to the
bearer.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any committee of such board authorized with respect to any matter to
exercise the powers of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or m the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CASH" means such coin or currency of the United States as at any time
of payment is legal tender for the payment of public and private debts.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres SA.
"COMPANY" means the party named as the "COMPANY" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company or the Guarantor, as the case may be, by its
Chairman of the Board, a Vice Chairman, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee or, with respect to Sections 2.4, 2.8,
2.11 and 7.2, any other employee of the Company or the Guarantor, as the case
may be, named in an Officers' Certificate delivered to the Trustee.
2
<PAGE>
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or
include such successor.
"DEBT" means with respect to any person at any date, without duplication
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to leases which are required to be capitalized under generally accepted
accounting principles consistently applied and (v) all Debt of others for the
payment of which such person is responsible or liable as obligor or guarantor.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the Principal Amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"EURO-CLEAR" means the operator of the Euro-clear System.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GUARANTY" has the meaning set forth in Article XII.
"HOLDER" or "SECURITYHOLDER," when used with respect to any Security,
means, in the case of a Registered Security, a person in whose name a Security
is registered on the Registrar's books and, in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"INTEREST," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
3
<PAGE>
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on
which the Principal of such Security or an installment of Principal or, in the
case of a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 14.4 and 14.5, signed in the name of the
Company or the Guarantor, as the case may be, by its Chairman of the Board, a
Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 14.4 and 14.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, the
Guarantor or the Trustee.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on the Securities of that series are
payable as specified as contemplated by Section 2.3(a).
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under
4
<PAGE>
Section 2.9 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"REDEMPTION DATE" or "REDEMPTION DATE," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE," when used with respect to
any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered on
the books of the Registrar.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITYHOLDER" or "HOLDER," when used with respect to any Security,
means in the case of a Registered Security, a person in whose name a Security is
registered on the Registrar's books and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.13.
"STATED MATURITY," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which an amount
5
<PAGE>
equal to the Principal of such Security or an installment of Principal thereof
or interest there on is due and payable.
"SUBSIDIARY" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries or (iii) one or
more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"TRUSTEE" means the party named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"UNITED STATES" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
"UNITED STATES ALIEN" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"BANKRUPTCY LAW" 6.1
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.11
"GUARANTOR SENIOR INDEBTEDNESS" 13.15
"LEGAL HOLIDAY" 14.8
"NOTICE OF DEFAULT " 6.1
"OUTSTANDING" 2.10
6
<PAGE>
"PAYING AGENT" 2.5
"REGISTRAR" 2.5
"SENIOR INDEBTEDNESS" 13.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
in the United States as in effect from time to time;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE II
7
<PAGE>
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially such form (including global form) as shall be
established by delivery to the Trustee of an Officers' Certificate or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities
or coupons as evidenced by their execution of the Securities or coupons. The
Officers' Certificate so establishing the form of Security or coupons, if any,
of any series shall be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 2.4 for the authentication and
delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 2.3(a), Bearer
Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, PROVIDED, that such method is permitted by
the rules of any securities exchange on which such Securities may be listed, all
as determined by the Officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount
of any increase or decrease in the amount of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the person or persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.4 or 2.11
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall
8
<PAGE>
be in writing but need not comply with Section 14.4 or 14.5 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 14.4 or 14.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS.
(a) The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company (and, if any covenants,
agreements or Events of Default relating to the Guarantor, or any provisions
or Article XII or any Guaranty, are thereby effected, of the Guarantor), or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or
10.3 and except for any Securities which, pursuant to Section 2.4, are
deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities
of the series may be represented initially by a Security in temporary or
permanent global form and, if so, the initial Depositary with respect to
any such temporary or permanent global Security, and if other than as
provided in Section 2.8 or Section 2.11, as applicable, whether and the
circumstances under which beneficial owners of interests in any such
temporary or permanent global Security may exchange such interests for
9
<PAGE>
Securities of such series and of like tenor of any authorized form and
denomination;
(4) the person to whom any interest on any Registered Security of
the series shall be payable, if other than the person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, and the person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which (including any
certification requirement and other terms and conditions under which), any
interest payable on a temporary or permanent global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities of
the series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, and any provisions for the remarketing of such Securities;
10
<PAGE>
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies, in
which payment of the Principal of and any interest on the Securities of
the series shall be payable if other than the currency of the United
States, and if so, whether the Securities of the series may be satisfied
and discharged other than as provided in Article VIII;
(12) if the amount of payments of principal of and any interest on
the Securities of the series is to be determined with reference to an
index, formula or other method, or based on a coin or currency other than
that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined and the calculation agent, if any, with
respect thereto;
(13) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a
United States Alien (including any modification in the definition of such
term), in respect of any tax, assessment or governmental charge withheld
or deducted, under what circumstances and with what procedures and
documentation the Company will pay such additional amounts, whether such
additional amounts will be treated as interest or Principal pursuant to
this Indenture, and whether the Company will have the option to redeem
such Securities rather than pay additional amounts (and the terms of any
such option);
(15) if other than as defined in Section 1.1, the meaning of
"BUSINESS DAY" when used with respect to any Securities of the series;
(16) if and the terms and conditions upon which the Securities of
the series may or must be converted into securities of the Company or
exchanged for securities of the Company or another enterprise;
(17) if and the terms and conditions upon which the obligations of
the Company under the Securities of the series are guaranteed in a manner
other than as described in Article XII;
11
<PAGE>
(18) any terms applicable to Original Issue Discount, if any, (as
that term is defined in the Internal Revenue Code of 1986 and the
Regulations thereunder) including the rate or rates at which such Original
Issue Discount, if any, shall accrue;
(19) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security
of such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Registered Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, one of its
12
<PAGE>
Vice Chairmen, its President or one of its Vice Presidents, or the Treasurer or
any Assistant Treasurer, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
with respect to Securities of a series subject to a Periodic Offering, (a) such
Company Order may be delivered by the Company to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b)
the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate Principal Amount not exceeding
the aggregate Principal Amount established for such series, pursuant to a
Company Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the rate or rates of
interest, if any, the Stated Maturity or Maturities, the original issue date or
dates, the redemption provisions, if any, and any other terms of Securities of
such series shall be determined by a Company Order or pursuant to such
procedures and (d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company, or the Company's duly authorized agent or agents
designated in an Officers' Certificate, which oral instructions shall be
promptly confirmed in writing; and PROVIDED, FURTHER, that, in connection with
its original issuance, no Bearer Security or coupon shall be mailed or otherwise
delivered to any person who is not a United States Alien or to any location in
the United States. Except as permitted by Section 2.9, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Sections 2.1 and 2.3(a), in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
13
<PAGE>
(a) that the form and terms of such Securities and any coupons have been
duly authorized by the Company and established in conformity with the provisions
of this Indenture; and
(b) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of
such Securities (when established in accordance with such procedures as
may be specified from time to time in a Company Order, all as contemplated
by and in accordance with a Board Resolution or an Officers' Certificate
pursuant to Section 2.3(a), as the case may be) will have been, duly
authorized by the Company and established in conformity with the
provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
14
<PAGE>
Notwithstanding the provisions of Section 2.3(a) and of the preceding
three paragraphs, if all Securities of a series are subject to a Periodic
Offering, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 2.3(a) at or prior to the time of
authentication of each Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 2.3(a), each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By:
--------------------------------
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 14.4 or 14.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be
15
<PAGE>
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 2.5 REGISTRAR AND PAYING AGENT. The Company shall maintain,
with respect to each series of Securities, an office or agency where such
Securities may be presented for registration of transfer or for exchange
("REGISTRAR") and an office or agency where such Securities may be presented
for purchase or payment ("PAYING AGENT"). The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one
or more co-registrars and one or more additional paying agents. The term Paying
Agent includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except
as otherwise provided herein, prior to or on each due date of payments in
respect of any series of Securities, the Company shall deposit with the Paying
Agent with respect to such Securities a sum of money sufficient to make such
payments when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by such Paying
Agent for the making of payments in respect of the Securities of such series and
shall notify the Trustee of any default by the Company in making any such
payment. At any time during the continuance of any such default, a Paying Agent
shall, upon the written request of the Trustee, forthwith pay to the Trustee all
money so held in trust with respect to such Securities. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent for a series
of Securities, it shall segregate the money held by it as Paying Agent with
respect to such Securities and hold it as a separate trust fund. The Company at
any time may require a Paying Agent for a series of Securities to pay all money
held by it with respect to such Securities to the Trustee and to account for any
money disbursed by it. Upon doing so, such Paying Agent shall have no further
liability for the money.
SECTION 2.7 SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and
16
<PAGE>
addresses of Holders of each series of Securities. If the Trustee is not the
Registrar for any series of Securities, the Company shall cause to be furnished
to the Trustee at least semiannually on June 1 and December 1 a listing of
Holders of such series of Securities dated within 15 days of the date on which
the list is furnished and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders of such series of
Securities.
SECTION 2.8 TRANSFER AND EXCHANGE. Upon surrender for registration of
transfer of any Security at the office or agency of the Company designated
pursuant to Section 4.5 for such purpose in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership or any exchange pursuant to Section 2.11, 3.6, 9.5 or 10.3, not
involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may
not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate Principal Amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons
17
<PAGE>
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 4.5, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate Principal Amount equal to the
Principal Amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication
18
<PAGE>
and delivery of definitive Securities of such series, will authenticate and
deliver Securities of such series in definitive form and in an aggregate
Principal Amount equal to the Principal Amount of the Security or Securities in
global form representing such series in exchange for such Security or Securities
in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If
the beneficial owners of interests in a permanent global Security are entitled
to exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate Principal Amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 2.3(a), shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; PROVIDED, HOWEVER, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and PROVIDED, FURTHER, that in connection with its original
issuance, no Bearer Security or coupon delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any person
that is not a United States Alien or to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
19
<PAGE>
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Security in global form pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Registered Securities to
the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on (a) if
Securities of the Series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (b) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS. If (a) any mutilated
Security or a Security with a mutilated coupon appertaining thereto is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a BONA FIDE purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in
20
<PAGE>
exchange for any such mutilated Security or coupon or in lieu of any such
destroyed, lost or stolen Security or coupon, or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and of like tenor and Principal Amount, bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or coupon, or to
the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; PROVIDED,
HOWEVER, that the Principal of and any interest on Bearer Securities shall,
except as otherwise provided in Section 4.5, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 2.3(a), any interest on Bearer Securities shall be
payable only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any mutilated, destroyed, lost or stolen Security, or in exchange for a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security and coupons, if any, shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities of that issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities of any series "OUTSTANDING" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "OUTSTANDING" because the Company or an
Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite Principal Amount of Outstanding
21
<PAGE>
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9). In addition, in determining whether the Holders of the
requisite Principal Amount of Outstanding Securities have given or concurred in
any request, demand, authorization, direction, notice, consent or waiver
hereunder, (i) the Principal Amount of a Discount Security that shall be deemed
to be Outstanding shall be the amount of the Principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 6.2, (ii) the Principal Amount of a
Security denominated in a foreign currency or currencies shall be the Dollar
equivalent, as determined on the date of original issuance of such Security, of
the Principal Amount (or, in the case of a Discount Security, the Dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE
purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities and any coupons thereto appertaining payable on that date, then on
and after that date such Securities shall cease to be outstanding and interest,
if any, on such Securities shall cease to accrue; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized, in
bearer form with one or more coupons or without
22
<PAGE>
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the Officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of Securities represented by a temporary global
Security (which shall be exchanged in accordance with the provisions of the
three succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.5 in a Place of
Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of the same series and of like tenor of authorized
denominations; PROVIDED, HOWEVER, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Unless otherwise specified as contemplated by Section 2.3(a), if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
permanent Securities of the same series, in aggregate Principal Amount equal to
the Principal Amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities of the same series and of like tenor without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Security, an equal aggregate Principal Amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The permanent Securities to be
delivered in exchange for any such temporary global Security shall be in
definitive bearer form or registered form, or shall be represented by a
permanent global Security, or any combination thereof, as
23
<PAGE>
specified as contemplated by Section 2.3(a), and, if any combination thereof is
so specified, as requested by the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for permanent Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 2.3(a). Unless
otherwise specified in such temporary global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary global
Security, except that a person receiving permanent Securities must bear the cost
of insurance, postage, transportation and the like in the event that such person
does not take delivery of such permanent Securities in person at the offices of
Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 2.3(a), interest payable on a temporary global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 2.3(a), for credit without further interest
on or after such Interest Payment Date to the respective accounts of the persons
who are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, any certificate specified as contemplated by Section 2.3(a).
SECTION 2.12 CANCELLATION. All Securities or coupons surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any sinking fund payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and all Registered Securities and matured
coupons so delivered shall be promptly cancelled by it. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued only
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and like tenor or the related coupons pursuant to Section 2.9. All
Bearer Securities and unmatured coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever (including
24
<PAGE>
Securities received by the Company in exchange or payment for other Securities
of the Company) and may deliver to the Trustee (or to any other person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. The Company
may not reissue, or issue new Securities to replace, Securities it has paid or
delivered to the Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted in the form of Securities for any
particular series or as permitted by this Indenture. All cancelled Securities
and coupons held by the Trustee shall be destroyed by the Trustee and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
25
<PAGE>
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities at his
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.8, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14 PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of Principal of and (except as otherwise
specified as contemplated by Section 2.3(a) and subject to Section 2.8 and
Section 2.13) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute
26
<PAGE>
owner of such Bearer Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 2.15 COMPUTATION OF INTEREST . Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on any
Securities which bear interest at a fixed rate shall be computed on the basis of
a 360-day year comprised of twelve 30-day months and (ii) interest on any
Securities which bear interest at a variable rate shall be computed on the basis
of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, within the time period set
forth below), notify the Trustee in writing of the Redemption Date, the
Principal Amount of and of any other information necessary to identify the
Securities of such series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the Principal
Amount of Registered Securities of such series of a denomination larger than the
minimum autho-
27
<PAGE>
rized denomination for Securities of that series. The Trustee
shall make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security (or portion thereof) to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date;
(5) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 14.2 need not
identify particular Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the
28
<PAGE>
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 4.5) and, unless otherwise specified as
contemplated by Section 2.3(a), only upon presentation and surrender of coupons
for such interest; and PROVIDED, FURTHER, that, unless otherwise specified as
contemplated by Section 2.3(a), installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Sections 2.8 and
2.13.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 4.5)
and, unless otherwise specified as contemplated by Section 2.3(a), only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, of all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such
29
<PAGE>
money is then held by the Company in trust and is not required for such purpose,
it shall be discharged from such trust.
SECTION 3.6 SECURITIES REDEEMED IN PART. Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and upon such surrender, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security a new Registered
Security or Securities of the same series and of like tenor, in an authorized
denomination as requested by such Holder, equal in aggregate Principal Amount to
and in exchange for the unredeemed portion of the Principal of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of each series of Securities on the dates and in the manner
provided in the Securities and any coupons appertaining thereto and, to the
extent not otherwise so provided, pursuant to this Indenture. An installment of
Principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date funds (in the currency or
currencies of payment with respect to such Securities) designated for and
sufficient to pay such installment. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payments
of Principal or interest may be made by check or by transfer to an account
maintained by the payee subject, in the case of Bearer Securities, to the
provisions of Section 4.5.
SECTION 4.2 SEC REPORTS. The Company shall file with the Trustee, within
15 days after it files such annual and quarterly reports, information, documents
and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
So long as any Guaranty is in effect, the Guarantor shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents
30
<PAGE>
and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act..
SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on September 30, 1996) an Officers'
Certificate stating whether or not the signers know of any Default including,
without limitation with respect to the Guarantor that occurred during such
period. If they do, such Officers' Certificate shall including, without
limitation with respect to the Guarantor describe the Default and its status.
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (a) in the Borough of Manhattan,
the City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, purchase or
redemption and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (b) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 4.6), and (c)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The office of the Trustee at
, New York, New York , Attention: shall be such office or
agency for all of the aforesaid purposes unless the Company shall maintain some
other office or agency for such purposes and shall give
31
<PAGE>
prompt written notice to the Trustee of the location, and any change in the
location, of such other office or agency. If at any time the Company shall fail
to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 14.2, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 4.6) at the place specified for that purpose as contemplated by
Section 2.3(a) or, if no such place is specified, at the main office of the
Trustee in London, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
No payment of Principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; PROVIDED, HOWEVER, that, if the
Securities of a series are denominated and payable in Dollars, payment of
Principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section 4.6)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such Principal, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in accordance with the requirements set forth above for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 4.6 ADDITIONAL AMOUNTS. If specified as contemplated by Section
2.3(a), the Securities of a series may provide for the payment of additional
amounts, and in such case, the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto additional amounts as provided
therein. Wherever in this Indenture there is mentioned, in any context, the
payment of the Principal of or any interest on, or in respect of, any Security
of any series or payment of any related coupon, such mention
32
<PAGE>
shall be deemed to include mention of the payment of additional amounts provided
for in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which payment of Principal is made), and at
least 10 days prior to each date of payment of Principal and any interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of Principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by the Securities of such series and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 4.7 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER DEBT. The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either PARI PASSU with the Securities
or subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
SECTION 4.8 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER GUARANTOR
DEBT. The Guarantor shall not create, incur, issue, assume, guaranty or
otherwise become directly or indirectly liable for or respect to or otherwise
permit to exist any Debt of the Guarantor that is subordinate in right of
payment to any Debt of the Guarantor unless such Debt is either PARI PASSU
with the Guarantees pursuant to subordination provisions that are at least as
favorable to the holders of the Securities as the subordination provision set
forth in this Indenture with respect to Guarantor Senior Indebtedness. This
Section 4.8 shall be applicable only as to a Series of Securities which is
guaranteed pursuant to Article XII or as provided pursuant to Section 2.3(a)
and shall terminate without action by the Company, the Trustee or the
Guarantor, if, as and when any Guaranty terminates pursuant to this Indenture.
ARTICLE V
33
<PAGE>
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY AND GUARANTOR MAY MERGE OR TRANSFER ASSETS.
Neither the Company nor, for so long as the Guaranty is in effect, the Guarantor
shall consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company or the Guarantor, as the case may be, shall
be the continuing corporation or (2) the person (if other than the Company
or the Guarantor, as the case may be) formed by such consolidation or into
which the Company or the Guarantor is merged or the person which acquires by
conveyance, transfer or lease the properties and assets of the Company or
the Guarantor substantially as an entirety (i) shall be a corporation,
partnership or trust organized and validity existing under the laws of the
United States or any state thereof or the District of Columbia and
(ii) shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all of
the obligations of the Company under the Securities and this Indenture or
all of the obligations of Guarantor under the Guaranty and this Indenture,
as the case may be;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been satisfied.
The successor person formed by such consolidation or into which the Company
or the Guarantor is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor, as the case may
be, under this Indenture with the same effect as if such successor had been
named as the Company or the Guarantor, as the case may be, herein; and
thereafter, except in the case of a lease of its properties and assets
substantially as an entirety, the Company or the Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Indenture, the
Securities, the Guaranty and coupons. Notwithstanding the foregoing, in the
event the Acquisition does not occur, the Company may consolidate with or merge
into the Guarantor and, upon such consolidation or merger, the Securities and
all obligations thereunder and under the Indenture will thereafter become the
sole obligation of the Guarantor (and will bind the Guarantor as if all
references herein to "the Company" were to
34
<PAGE>
the "Guarantor") without any action on the part of the Guarantor, the Company,
the Trustee or any other person (in such event, any Guarantees previously issued
by the Guarantor shall be of no further force or effect).
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of securities, an
"EVENT OF DEFAULT" occurs, with respect to each series of the Securities
individually, if:
(1) the Company defaults in (a) the payment of the principal of any
Security of such series at its Maturity or (b) the payment of any interest
upon any Security of such series when the same becomes due and payable and
continuance of such default for a period of 60 days;
(2) the Company or the Guarantor fails to comply with any of its
agreements in the Securities or this Indenture (other than those referred
to in clause (1) above and other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has been expressly included in this Indenture solely
for the benefit of a series of Securities other than such series) and such
failure continues for 60 days after receipt by the Company or the Guarantor
of a Notice of Default;
(3) there shall have been the entry by a court of competent jurisdiction
of (a) a decree or order for relief in respect of the Company or the
Guarantor in an involuntary case or proceeding under any applicable
Bankruptcy Law or (b) a decree or order adjudging the Company or the
Guarantor, bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or the Guarantor or of any substantial part of its
property, or ordering the wind up or liquidation of its affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days;
(4) (a) the Company or the Guarantor commences a voluntary case or
proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (b) the Company or the
Guarantor consents to the entry of a decree or order for relief in respect
of the Company or the Guarantor in an involuntary case or proceeding under
any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (c)
35
<PAGE>
the Company or the Guarantor files a petition or answer or consent seeking
reorganization or substantially comparable relief under any applicable
federal state law, (d) the Company or the Guarantor (x) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or the Guarantor or of any substantial part of its
property, (y) makes an assignment for the benefit of creditors or (z) admits
in writing its inability to pay its debts generally as they become due or
(e) the Company or the Guarantor takes any corporate action in furtherance
of any such actions in this clause (4);
(5) a Guaranty, whether pursuant to Article XII or as provided for in
Section 2.3(a), shall for any reason cease to be, or be asserted in writing
by a responsible officer of the Guarantor not be, in full force and effect,
except to the extent contemplated by the Indenture; or
(6) any other Event of Default provided with respect to Securities of
that series.
Notwithstanding the foregoing, upon the termination of any Guaranty
pursuant to Article XII, the occurence of any event set forth in clauses (2)
through (6) above with respect to the Guarantor shall not constitute an Event
of Default hereunder.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "CUSTODIAN" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above after receipt of such notice. Any
such notice must specify the Default, demand that it be remedied and state that
such notice is a "NOTICE OF DEFAULT."
SECTION 6.2 ACCELERATION. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of that series by notice to the Company and
the Trustee, may declare the Principal Amount (or, if any of the Securities of
that series are Discount Securities, such portion of the Principal Amount of
such Securities as may be specified in the terms thereof) of all the Securities
of that series to be immediately due and payable. Upon such a declaration, such
Principal (or portion thereof) shall be due and payable immediately. If an
Event of Default specified in Section 6.1(3) or (4) occurs and is continuing,
the Principal (or portion thereof) of all the Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any
36
<PAGE>
other Securityholder) may rescind an acceleration with respect to that series
and its consequences if the rescission would not conflict with any judgment or
decree and all existing Events of Default with respect to Securities of such
series have been cured or waived except nonpayment of the Principal (or portion
thereof) of Securities of such series that has become due solely as a result of
such acceleration and if all amounts due to the Trustee under Section 7.7 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3 OTHER REMEDIES. If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or coupons or does not produce any of the
Securities or coupons in the proceeding. A delay or omission by the Trustee or
any Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series and any related
coupons waive an existing Default with respect to such series and its
consequences except (1) an Event of Default described in Section 6.1(1) with
respect to such series or (2) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of the Holder of each
Outstanding Security of such series affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with
37
<PAGE>
law or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability.
SECTION 6.6 LIMITATION ON SUITS. A Holder of any Security of any series
or any related coupons may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event
of Default with respect to the Securities of that series is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security or coupon to receive payment of the
Principal of and (subject to Section 2.13) interest on such Security or payment
of such coupon on the Stated Maturity or Maturities expressed in such Security
or coupon (or, in the case of redemption, on the Redemption Date) held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected adversely without
the consent of each such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount owing with respect to
such series of Securities and the amounts provided for in Section 7.7.
38
<PAGE>
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 7.7)
and of the Holders of Securities and coupons allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities and coupons, to pay the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to the holders of Senior Indebtedness as provided for in
Article XIII;
39
<PAGE>
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities and interest evidenced by coupons in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for Principal and interest, respectively;
and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the enforcement of the payment of the Principal of or
interest on any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VII
40
<PAGE>
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
41
<PAGE>
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
or coupons and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar
or co-registrar or any other agent of the Company may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities or coupons. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities and, shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act of 1933, as amended, or in
the Indenture or the Securities or any coupons (other than its certificate of
authentication) or for the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION 7.5 NOTICE OF DEFAULTS. If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. Except in the case of a Default described in Section
6.1(1) with respect to any Security of such series or a Default in the payment
of any sinking fund installment with respect to any Security of such series, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in
42
<PAGE>
good faith determines that withholding the notice is in the interests of the
Holders of Securities of such series.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company agrees to notify the Trustee whenever
the Securities of a particular series become listed on any stock exchange and of
any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities and any coupons on all money or
property held or collected by the Trustee, except that held in trust to pay the
Principal of or interest, if any, on particular Securities or for the payment of
particular coupons.
The Company's payment obligations pursuant to this Section 7.7 shall survive
the discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
43
<PAGE>
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.8. The Holders of a majority in aggregate Principal Amount of
the Outstanding Securities of any series at the time outstanding may remove the
Trustee with respect to the Securities of such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any series).
In the case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to Holders of Securities of the particular series with respect
to which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall
44
<PAGE>
be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-Trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series does not
take office within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of such series at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of a Security
of such series may petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9). In determining whether the
Trustee has conflicting interests as defined in TIA
45
<PAGE>
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) shall be deemed incorporated herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. Except as otherwise
contemplated by Section 2.3(a), when (a) the Company delivers to the Trustee all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be, theretofore authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as provided in
Section 2.8, (ii) Securities or Securities of such series, as the case may be,
and coupons, if any, which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, (iii) coupons, if any,
appertaining to Securities or Securities of such series, as the case may be,
called for redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 3.4, and (iv) Securities or
Securities of such series, as the case may be, and coupons, if any, for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 2.4) for cancellation or (b) all Outstanding
Securities have become due and payable and the Company deposits with the Trustee
cash sufficient to pay at Stated Maturity the Principal Amount of all Principal
of and interest on Outstanding Securities or all Outstanding Securities of such
series (other than Securities replaced pursuant to Section 2.9), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.7, cease to be of further effect
as to all Outstanding Securities or all Outstanding Securities of any series, as
the case may be. The Trustee shall join in the execution of a document prepared
by the Company acknowledging satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers' Certificate and Opinion of
Counsel and at the cost and expense of the Company.
SECTION 8.2 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company on Company Request any money held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company cause to be published once
46
<PAGE>
in an Authorized Newspaper in each Place of Payment of or mail to each such
Holder notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed money then remaining wilt be returned to the Company.
After return to the Company, Holders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person.
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company, may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in Article VIII.
SECTION 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.2, the Company and the
Guarantor, if any, shall be deemed to have been discharged from their
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter "defeasance"). For this purpose,
such defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Sections 2.4, 2.5,2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8
and 8.2 of this Indenture and to have satisfied all its other obligations under
such series of Securities and this Indenture insofar as such series of
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon written request, shall execute proper instruments acknowledging the same).
Subject to compliance with this Article VIII, the Company may exercise its
option under this Section 8.4 notwithstanding the prior exercise of its option
under Section 8.5 with respect to a series of Securities.
SECTION 8.5 COVENANT DEFEASANCE. Upon the Company's exercise under
Section 8.3 of the option applicable this Section 8.5, the Company and the
Guarantor, if any, shall be release from their obligations under Sections 4.2
and 4.3 and Article V and such other provisions as may be provided as
contemplated by Section 2.3(a) with respect to Securities of a particular series
and with respect to the Defeased Securities on and after the date the conditions
set forth below are satisfied (hereinafter "covenant defeasance"), and the
Defeased Securities shall thereafter be deemed to be not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences if any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by
47
<PAGE>
reason of any reference in any such Section or Article to any other provisions
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 6.1 but, except as specified
above, the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in trust,
(i) sufficient funds in the currency or currency unit in which the Securities of
such series are denominated to pay the Principal of and interest to Stated
Maturity (or redemption) on, the Debt Securities of such series, or (ii) such
amount of direct obligations of, or obligations the principal of and interest on
which are fully guaranteed by, the government which issued the currency in which
the Securities of such series are denominated, and which are not subject to
prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the Principal of, and interest to Stated
Maturity (or redemption) on, the Debt Securities of such series;
(b) The Company shall (i) have delivered an opinion of counsel that the
Holders of the Securities of such series will not recognize income, gain or loss
for United States Federal income tax purposes as a result of such defeasance,
and will be subject to tax in the same manner as if no defeasance and discharge
or covenant defeasance, as the case may be, had occurred or (ii) in the case of
an election under Section 8.4 the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B) since
the date this Indenture was first executed, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel in the United States shall confirm that, the
holders of Outstanding Securities of that particular series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance; and
(c) The Company shall have delivered to the Trustee an opinion of counsel
to the effects that the funds deposited pursuant to Section 8.6(a) will not
be subject to the rights of the holders of Senior Indebtedness.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Company, the Guarantor
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
48
<PAGE>
(1) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series
thereof, or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to Principal, to change
or eliminate any restrictions (including restrictions relating to payment in
the United States) on the payment of Principal of or any premium or interest
on Bearer Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to
permit the issuance of Securities in uncertificated form; or
(4) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 2.1 and 2.3(a), respectively; or
(5) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
7.8; or
(6) to cure any ambiguity, defect or inconsistency; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), PROVIDED that any such addition, change or
elimination shall neither (a) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (b) modify the rights of the Holder of any
such Security with respect to such provision; or
(8) to remove the Guarantor and references to the Guaranty (as hereafter
defined) upon the occurrence of the events specified in Section 12.3 of this
Indenture;
(9) to secure the Securities; or
(10) to make any other change that does not adversely affect the rights
of any Securityholder.
49
<PAGE>
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor and the Trustee may amend
this Indenture or the Securities of any series or may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of the
Securities of such series and any related coupons under this Indenture;
PROVIDED, HOWEVER, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the Principal of, or any installment
of Principal or interest on, any such Security, or reduce the Principal
Amount thereof or the rate of interest thereon or any premium payable upon
redemption thereof or reduce the amount of Principal of any such Discount
Security that would be due and payable upon a declaration of acceleration of
maturity thereof pursuant to Section 6.2, or change the Place of Payment, or
change the coin or currency in which, any Principal of, or any installment
of interest on, any such Security is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such amendment or supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) with respect
to the Securities of such series provided for in this Indenture;
(3) make any change in the terms of the Subordination of the Securities
in a manner adverse to the Holders of any series of Outstanding Securities;
(4) make any change in the terms of any Guaranty of any series of the
Securities in a manner adverse to the rights of the holders of the
Securities of such series; or
(5) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of
50
<PAGE>
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the Company or an agent of the Company certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of such series so
51
<PAGE>
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities of that series.
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby, except
to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.3(a) for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "MANDATORY SINKING FUND
PAYMENT," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "OPTIONAL SINKING
FUND PAYMENT." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), together in the case of any Bearer Securities of such series with
the same issue date, interest rate and Stated Maturity with all unmatured
coupons appertaining thereto, and (2) may apply as a credit Securities of a
series with the same issue date, interest rate and Stated Maturity which have
been redeemed either at the election of the Company
52
<PAGE>
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of such series with the same issue date, interest
rate and Stated Maturity; PROVIDED that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 10.2 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.4
and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 11.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York or, for a series of Securities issued
as Bearer Securities, in London as the Trustee shall determine or, with the
approval of the Company, at any other place. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 14.2, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
53
<PAGE>
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or for a series of Securities issued as Bearer Securities,
in London, or in such other place as shall be determined and approved by the
Company, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 11.4 QUORUM; ACTION. The persons entitled to vote a majority in
Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 11.2(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the Holders of a majority in
Principal Amount of the Outstanding Securities of that series; PROVIDED,
HOWEVER, that, except as limited by
54
<PAGE>
the proviso to Section 9.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in Principal Amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in Principal Amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 11.7 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 11.7 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 11.2 (b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to vote with respect to the Outstanding Securities of such series
held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect to any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
55
<PAGE>
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 11.2 at which a quorum is present may be adjourned from time to time
by persons entitled to vote a majority in Principal Amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of this Article, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 7.1)
conclusive in favor of the Trustee and the Company, if made in
56
<PAGE>
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 11.6.
(b) The fact and date of the execution by any person of any such instrument
or writing, or the authority of the persons executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Registered Securities held
by the person, and the date of holding the same, shall be proved by the books of
the Registrar.
(d) The Principal Amount and serial numbers of Bearer Securities held by
any person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The Principal Amount and
serial numbers of Bearer Securities held by any person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security in accordance with this Section shall
bind every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determin-
57
<PAGE>
ing whether Holders of the requisite percentage of Outstanding Securities or
Outstanding Securities of a series, as the case may be, have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other act, and for that purpose the Outstanding Securities or
Outstanding Securities of the series, as the case may be, shall be computed as
of such record date; PROVIDED, that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless such request,
demand, authorization, direction, notice, consent, waiver or other act shall
become effective pursuant to the provisions of clause (a) of this Section 11.7
not later than six months after the record date.
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY.The provisions of this Article shall be applicable
to any issuance of a series of Securities as to which payment obligations
thereunder, to the extent specified as contemplated by Section 2.3(a), are to be
guaranteed by the Guarantor.
(a) In consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby irrevocably
and unconditionally guarantees (the "Guaranty") to each Holder of a Security of
a particular series authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns that: (x) the Principal of and interest
on the Securities will be paid in full when due, whether at Maturity or Interest
Payment Date or otherwise; (y) all other obligations of the Company to the
Holders or the Trustee under this Indenture or the Securities will be promptly
paid in full or performed, all in accordance with the terms of this Indenture
and the Securities of such series; and (z) in case of any extension of time of
payment or renewal of any Securities of such series or any of such other
obligations, they will be paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at maturity or otherwise.
Failing payment when due of any amount so guaranteed for whatever reason, the
Guarantor shall be obligated to pay the same before failure so to pay becomes an
Event of Default.
(b) The Guarantor hereby agrees that its obligations with regard to this
Guaranty shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstances that might otherwise constitute a
legal or equitable discharge or defense of a guarantor. The Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or right to require the prior disposition
of the assets of the Company to meet their obligations, protest, notice and all
58
<PAGE>
demands whatsoever and covenants that this Guaranty will not be discharged
except by complete performance of the obligations contained in the Securities
and this Indenture or otherwise in accordance with this Indenture or as
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series.
It is the intention of the Guarantor and the Company that the obligations of
the Guarantor hereunder shall be in, but not in excess of, the maximum amount
permitted by applicable law. Accordingly, if the obligations in respect of the
Guaranty would be annulled, avoided or subordinated to the creditors of the
Guarantor by a court of competent jurisdiction in a proceeding actually pending
before such court as a result of a determination both that such Guaranty was
made without fair consideration and that, at the time thereof, immediately after
giving effect thereto, or at the time that any demand is made thereupon the
Guarantor was insolvent or unable to pay its debts as they mature or left with
an unreasonably small capital, then the obligations of the Guarantor under the
Guaranty shall be reduced by such an amount, if any, that would result in the
avoidance of such annulment, avoidance or subordination; PROVIDED, HOWEVER,
that any reduction pursuant to this paragraph shall be made in the smallest
amount as is necessary to reach such result. For purposes of this paragraph,
"fair consideration," "insolvency," "unable to pay its debts as they mature,"
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY.To evidence its
Guaranty set forth in Section 12.1, the Guarantor agrees that a notation of such
Guaranty substantially in the form annexed hereto as Exhibit A or as otherwise
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series shall be endorsed on each Security authenticated and delivered
by the Trustee and that this Indenture shall be executed on behalf of such
Guarantor by two Authorized Representatives or by one Authorized Representative
with an attestation by another Authorized Representative, by manual or facsimile
signature.
The Guarantor agrees that its Guaranty set forth in Section 12.1 shall
remain in full force and effect and apply to all the Securities notwithstanding
any failure to endorse on each Security a notation of such Guaranty.
If an Authorized Representative whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security on
which a Guaranty is endorsed, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty set forth in
this Indenture on behalf of each Guarantor.
59
<PAGE>
SECTION 12.3 TERMINATION OF THE GUARANTY.Unless otherwise specified as
contemplated by Section 2.3(a) with respect to Securities of a particular
series, the Guarantor's obligations under the Guaranty and this Indenture shall
terminate immediately and automatically upon the consummation of the Acquisition
without any action on the part of the Company, the Guarantor, the Trustee or any
other person. The Guarantor intends to Guarantee the obligations of the Company
under the Securities and this Indenture only for the period that the Company is
a wholly owned subsidiary of the Guarantor. From and after the time that
Capital Cities becomes a subsidiary or an Affiliate of the Company, the Trustee
and Holders of Securities, whether then outstanding or issued thereafter, shall
look only to the Company for performance under this Indenture and the Securities
and shall have no further rights or remedies under the Guaranty or this
Article XII. From and after the time the Guaranty terminates under this
Article XII, any certificates authenticated and delivered pursuant to
Section 2.4 shall not include the form of Guaranty attached hereto as Exhibit A.
ARTICLE XIII
SUBORDINATION
SECTION 13.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XIII. The
Company covenants and agrees, and each Holder of a Security of any series by
such Holder's acceptance thereof likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article XIII, the
indebtedness represented by the Securities and the payment of the Principal
Amount, interest and such other amounts as provided for in Section 2.3(a), if
any, in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding) and
other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating the same
or evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such Debt of the Company shall be subordinated to
any other Debt of the Company;
(b) any Debt of the Company which by its terms states that such Debt of the
Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities;
60
<PAGE>
(d) any Debt of the Company to any Affiliate of the Company or Subsidiary of
the Company; and
(e) any Debt of the Company issued pursuant to that certain Indenture dated
as of among the Company, The Walt Disney Company, as Guarantor and,
as Trustee relating to subordinated debt securities (which such debt
securities shall rank junior in right of payment to the Securities).
SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon any
distribution of assets of the Company in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such,
or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling
of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, interest or such other amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities; and
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, by set-off or otherwise,
to which the Holders or the Trustee would be entitled but for the provisions
of this Article XIII, including any such payment or distribution which may
be payable or deliverable by reason of the payment of any other Debt of the
Company being subordinated to the payment of the Securities, shall be paid
by the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of, and premium, if
any, and interest on the Senior Indebtedness held or represented by each,
to the extent necessary to
61
<PAGE>
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
13.2, the Trustee or the Holder of any Security shall receive any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee as provided in Section 13.10, or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article XIII only, the words "CASH, PROPERTY OR
securities," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article XIII with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding; PROVIDED,
HOWEVER, that (i) Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article V shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company for
the purposes of this Section 13.2 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 13.3. ACCELERATION OF SECURITIES. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.2, then and
62
<PAGE>
in such event the Company shall promptly notify holders of Senior
Indebtedness of such acceleration. The Company may not pay the Securities until
120 days have passed after such acceleration occurs and may thereafter pay the
Securities if this Article XIII permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section 13.3, and if such facts then shall have
been known or thereafter shall have been made known to the Trustee (as provided
in Section 13.10) or to such Holder, as the case may be, pursuant to the terms
of this Indenture, then and in such event such payment shall be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 13.3 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.4. DEFAULT IN SENIOR INDEBTEDNESS. The Company may not make any
payment of the Principal Amount, interest or other such amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities and may not
acquire any Securities for cash or property (other than for Capital Stock of the
Company) if:
(1)a default on Senior Indebtedness occurs and is continuing that permits
holders of such Senior Indebtedness to accelerate its maturity; and
(2)the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a similar
notice received within nine months thereafter relating to the same default
on the same issue of Senior Indebtedness shall not be effective for purposes
of this Section 13.4.
The Company may resume payments on the Securities and may acquire Securities
if and when:
(a)the default is cured or waived; or
(b)120 or more days pass after the receipt by the Company of the notice
described in clause (2) above and the default is not then the subject of
judicial proceedings; and
this Article XIII otherwise permits the payment or acquisition at that time.
63
<PAGE>
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section 13.4, and if such fact then shall have been known or
thereafter shall have been made known to the Trustee as provided in Section
13.10 or such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in such event such payment shall be paid over and delivered
forthwith to the Company by or on behalf of the person holding such payment for
the benefit of the holders of the Senior Indebtedness.
The provisions of this Section 13.4 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.5. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
Article XIII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 13.2 or under the conditions described in Section
13.3 or 13.4, from making payments at any time of the Principal Amount, interest
or such other amounts as may be provided for in Section 2.3(a), if any, as the
case may be, in respect of the Securities, or (b) the application by the Trustee
or the retention by any Holder of any money deposited with it hereunder to the
payment of or on account of the Principal Amount, interest or such other amounts
as may be provided for in Section 2.3(a), if any, as the case may be, in respect
of the Securities if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 13.10, notice that such payment would
have been prohibited by the provisions of this Article XIII.
SECTION 13.6. SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XIII to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities applicable to
the Senior Indebtedness until the Principal Amount, interest or such other
amounts as provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XIII, and no payments pursuant to the provisions of this Article XIII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
64
<PAGE>
SECTION 13.7. PROVISION SOLELY TO DEFINE RELATIVE RIGHTS. The provisions
of this Article XIII are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on one hand, and the holders
of Senior Indebtedness, on the other hand. Nothing contained in this Article
XIII or elsewhere in this Indenture or in the Securities is intended to or
shall:
(a) impair, as between the Company and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Securities the Principal Amount, interest or such other
amounts as may be provided for in Section 2.3(a), if any, as the case may
be, in respect of the Securities as and when the same shall become due and
payable in accordance with the terms of the Securities and this Indenture
and which, subject to the rights under this Article XIII of the holders of
Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XIII of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.8. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XIII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 13.9. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article XIII or the
obligations hereunder of the Holders of the Securities
65
<PAGE>
to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise dispose of any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any person liable in any manner for
the collection of Senior Indebtedness and (iv) exercise or refrain from
exercising any rights against the Company or any other person.
SECTION 13.10. NOTICE TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article XIII or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof at the address specified in
Section 14.2 from the Company or a holder of Senior Indebtedness or from any
trustee or agent therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a Trust
Officer of the Trustee shall not have received, at least three Business Days
prior to the date upon which by the terms hereof any such money may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of any Security), the
notice with respect to such money provided for in this Section 13.10, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XIII, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article XIII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of
66
<PAGE>
such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets of the Company referred to in
this Article XIII, the Trustee, subject to the provisions of Section 7.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XIII.
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XIII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 14.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XIII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XIII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 13.14. ARTICLE XIII APPLICABLE TO PAYING AGENTS. The term
"Trustee" as used in this Article XIII shall (unless the context otherwise
requires) be construed as extending to and including the Paying Agent within its
meaning as fully for all intents
67
<PAGE>
and purposes as if the Paying Agent were named in this Article XIII in addition
to or in place of the Trustee; provided, however, that Sections 13.10 and 13.12
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
SECTION 13.15. SUBORDINATION OF GUARANTY. Any Guaranty of the Securities,
whether provided by Article XIII or otherwise, shall be subordinated to
Guarantor Senior Indebtedness to the extent and in the manner that the
Securities are subordinated to Senior Indebtedness of the Company.
"GUARANTOR SENIOR INDEBTEDNESS" means the principal of (and premium, if
any) and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Guarantor against the
bankruptcy or any other insolvency estate of the Guarantor in such proceeding)
and other amounts due on or in connection with any Debt of the Guarantor
incurred, assumed or guaranteed by the Guarantor, whether outstanding on the
date of the Indenture or thereafter incurred, assumed or guaranteed and all
renewals, extensions and refundings of any such Debt of the Guarantor; provided,
however, that the following will not constitute Guarantor Senior Indebtedness:
(a) any Debt of the Guarantor as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Debt of the Guarantor shall be subordinated
to any other Debt of the Guarantor;
(b) any Debt of the Guarantor which by its terms states that such Debt of
the Guarantor shall not be senior in right of payment to the Guarantees;
(c) Debt of the Guarantor in respect of the Guarantees;
(d) any Debt of the Guarantor to any Affiliate of the Guarantor or
Subsidiary of the Guarantor; and
(e) any debt of the Guarantor issued pursuant to that certain Indenture
dated as of , among the Company, The Walt Disney Company, as Guarantor and
as trustee, relating to subordinated debt securities (which such Debt
of the Company shall rank junior in right of payment to the Securities.
. ARTICLE XIV
MISCELLANEOUS
68
<PAGE>
SECTION 14.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 14.2 NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
DC Holdco, Inc.
500 South Buena Vista Street
Burbank, CA 91521
Attention: Legal Department
if to the Guarantor:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Legal Department
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Registered Securities shall
be mailed to such Securityholder at the Securityholder's address as it appears
on the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed. Notice shall be sufficiently given to
Holders of Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city
69
<PAGE>
or cities as may be specified in such Securities on a Business Day at least
twice, the first such publication to be not earlier than the earliest date, and
not later than the latest date, prescribed for the giving of such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company mails a notice or communication to the Holders of Securities
of a particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
acceptance of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication
SECTION 14.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect
70
<PAGE>
to their rights under this Indenture or the Securities. The Company and the
Trustee, the Registrar or the Paying Agent with respect to a particular series
of Securities, and anyone else, shall have the protection of TIA Section 312(c).
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 14.6 SEPARABILITY CLAUSE. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 14.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. With respect to
the Securities of a particular series, the Trustee with respect to such series
of Securities may make reasonable rules for action by or a meeting of Holders of
such series of Securities. With respect to the Securities of a particular
series, the Registrar and the Paying Agent with respect to such series of
Securities may make reasonable rules for their functions.
71
<PAGE>
SECTION 14.8 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or Principal need not be made at such Place of Payment, or
such other action need not be taken, on such date, but the action shall be taken
on the next succeeding day that is not a Legal Holiday at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or such other date and to the extent
applicable no Original Issue Discount or interest, if any, shall accrue for the
intervening period.
SECTION 14.9 GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 14.10 NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company or the Guarantor shall not have any
liability for any obligations of the Company or the Guarantor under the
Securities, the Guarantees or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder of such Security shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 14.11 SUCCESSORS. All agreements of the Company and the Guarantor
in this Indenture and the Securities and the Guarantor shall bind its respective
successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 14.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 14.13 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities or Guarantees, express or implied, shall give to any person, other
than the parties hereto and their successors hereunder and the Holders of
Securities, any benefits or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 14.14 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
72
<PAGE>
DC HOLDCO, INC.
By:
---------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
, as Trustee
By:
---------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
THE WALT DISNEY COMPANY
as Guarantor
By:
---------------------------------
Name:
Title:
73
<PAGE>
Attest:
------------------------------
Name:
Title:
74
<PAGE>
EXHIBIT A
FORM OF GUARANTY
For value received, The Walt Disney Company, a Delaware corporation, hereby
fully and unconditionally guarantees, on a subordinated basis to the extent set
forth in the Indenture, to the Holder of the Security upon which this Guaranty
is endorsed the due and punctual payment, as set forth in the Indenture pursuant
to which such Security and this Guaranty were issued, of the Principal of and
interest on such Security when and as the same shall become due and payable for
any reason according to the terms of such Security and Article XII of the
Indenture. The Guaranty of the Security upon which this Guaranty is endorsed
will terminate automatically upon the occurrence of certain events as provided
in Article XII of the Indenture, including without limitation the consummation
of the acquisition of Capital Cities/ABC, Inc. by The Walt Disney Company. The
Guaranty of the Security upon which this Guaranty is endorsed will not become
effective until the Trustee signs the certificate of authentication on such
Security.
THE WALT DISNEY COMPANY
By:
------------------------------
Attest:
--------------------------
75
<PAGE>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DC HOLDCO, INC.
THE WALT DISNEY COMPANY,
AS GUARANTOR
SUBORDINATED DEBT SECURITIES
----------------------------
INDENTURE
DATED AS OF
----------------------------
TRUSTEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE(1)
TIA INDENTURE
SECTION SECTION
------- ---------
310 (a)(1)......................................................... 7.8; 7.10
(a)(2).............................................................. 7.10
(a)(3)............................................................. N.A.
(a)(4)............................................................. N.A.
(a)(5)............................................................. 7.10
(b)............................................................ 7.8; 7.10
(c)................................................................ N.A.
311 (a)................................................................ 7.11
(b)................................................................ 7.11
(c)................................................................ N.A.
312 (a)................................................................ 2.7
(b)................................................................ 14.3
(c)................................................................ 14.3
313 (a)................................................................ 7.6
(b)................................................................ 7.6
(c)............................................................ 7.6; 14.2
(d)................................................................ 7.6
314 (a)............................................................ 4.2; 14.2
(b)................................................................ N.A.
(c)(1)............................................................. 14.4
(c)(2)............................................................. 14.4
(c)(3)............................................................. N.A.
(d)................................................................ N.A.
(e)................................................................ 14.5
(f)................................................................ 4.3
315 (a)................................................................ 7.1
(b)............................................................ 7.5; 14.2
315 (c)................................................................ 7.1
(d)................................................................ 7.1
(e)................................................................ 6.11
316 (a)(1)(a).......................................................... 6.5
(a)(1)(b).......................................................... 6.4
(a)(2)............................................................. N.A.
(b)................................................................ 6.7
(c)................................................................ N.A.
-----------------------
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TIA INDENTURE
SECTION SECTION
------- ---------
317 (a)(1)............................................................. 6.8
(a)(2)............................................................. 6.9
(b)................................................................ 2.6
318 (a)................................................................ 14.1
<PAGE>
TABLE OF CONTENTS(2)
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS................................................. 1
SECTION 1.2 OTHER DEFINITIONS........................................... 6
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT........... 7
SECTION 1.4 RULES OF CONSTRUCTION....................................... 7
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY............................................. 8
SECTION 2.2 SECURITIES IN GLOBAL FORM.................................. 8
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS............................. 9
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING............. 12
SECTION 2.5 REGISTRAR AND PAYING AGENT................................. 16
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST......... 16
SECTION 2.7 SECURITYHOLDER LISTS....................................... 16
SECTION 2.8 TRANSFER AND EXCHANGE...................................... 17
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS......................... 20
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION..................................................... 21
SECTION 2.11 TEMPORARY SECURITIES....................................... 22
SECTION 2.12 CANCELLATION............................................... 24
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............. 25
SECTION 2.14 PERSONS DEEMED OWNERS...................................... 26
SECTION 2.15 COMPUTATION OF INTEREST ................................... 27
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE........................ 27
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED..................... 27
SECTION 3.3 NOTICE OF REDEMPTION....................................... 28
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION............................. 28
---------------------
(2) Note: This Table of Contents shall not, for any reason, be deemed to be
part of the Indenture.
i
<PAGE>
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE................................ 29
SECTION 3.6 SECURITIES REDEEMED IN PART................................ 30
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES...................................... 30
SECTION 4.2 SEC REPORTS................................................ 30
SECTION 4.3 COMPLIANCE CERTIFICATE..................................... 31
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS............................... 31
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY............................ 31
SECTION 4.6 ADDITIONAL AMOUNTS......................................... 32
SECTION 4.7 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER
DEBT....................................................... 33
SECTION 4.8 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER
GUARANTOR DEBT............................................. 33
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS.................. 33
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.......................................... 35
SECTION 6.2 ACCELERATION............................................... 36
SECTION 6.3 OTHER REMEDIES............................................. 37
SECTION 6.4 WAIVER OF PAST DEFAULTS.................................... 37
SECTION 6.5 CONTROL BY MAJORITY........................................ 37
SECTION 6.6 LIMITATION ON SUITS........................................ 38
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT....................... 38
SECTION 6.8 COLLECTION SUIT BY TRUSTEE................................. 38
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM........................... 39
SECTION 6.10 PRIORITIES................................................. 39
SECTION 6.11 UNDERTAKING FOR COSTS...................................... 40
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS.................... 40
ARTICLE VII
ii
<PAGE>
PAGE
----
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.......................................... 41
SECTION 7.2 RIGHTS OF TRUSTEE.......................................... 42
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC.......................... 42
SECTION 7.4 TRUSTEE'S DISCLAIMER....................................... 42
SECTION 7.5 NOTICE OF DEFAULTS......................................... 42
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.............................. 43
SECTION 7.7 COMPENSATION AND INDEMNITY................................. 43
SECTION 7.8 REPLACEMENT OF TRUSTEE..................................... 44
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER................................ 45
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.............................. 45
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......... 46
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES...................... 46
SECTION 8.2 REPAYMENT TO THE COMPANY.................................. 46
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE........ 47
SECTION 8.4 DEFEASANCE AND DISCHARGE.................................. 47
SECTION 8.5 COVENANT DEFEASANCE....................................... 47
SECTION 8.6 CONDITIONS TO DEFEASANCE AND COVENANT DEFEASANCE.......... 48
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........ 48
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS........... 50
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT....................... 51
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND
ACTIONS................................................... 51
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES..................... 51
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES................... 52
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES......................... 52
iii
<PAGE>
PAGE
----
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE.................................. 52
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES................................................ 52
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND................. 53
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED................. 53
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS........................ 53
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS...................... 54
SECTION 11.4 QUORUM; ACTION............................................ 54
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS................................. 55
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS........... 56
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY.............................. 56
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY.................................................. 58
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY.................... 59
SECTION 12.3 TERMINATION OF THE GUARANTY............................... 60
ARTICLE XIII
SUBORDINATION
SECTION 13.1. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS............. 60
SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC............ 61
SECTION 13.3. ACCELERATION OF SECURITIES................................ 62
SECTION 13.4. DEFAULT IN SENIOR INDEBTEDNESS............................ 63
SECTION 13.5. PAYMENT PERMITTED IF NO DEFAULT........................... 64
SECTION 13.6. SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS...... 64
iv
<PAGE>
PAGE
----
SECTION 13.7. PROVISION SOLELY TO DEFINE RELATIVE RIGHTS............... 64
SECTION 13.8. TRUSTEE TO EFFECTUATE SUBORDINATION...................... 65
SECTION 13.9. NO WAIVER OF SUBORDINATION PROVISIONS.................... 65
SECTION 13.10. NOTICE TO TRUSTEE........................................ 66
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT........................................ 66
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS............................................. 67
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS......................... 67
SECTION 13.14. ARTICLE XIII APPLICABLE TO PAYING AGENTS................. 67
SECTION 13.15 SUBORDINATION OF GUARANTY................................ 68
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 TRUST INDENTURE ACT CONTROLS............................. 68
SECTION 14.2 NOTICES.................................................. 68
SECTION 14.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.............. 70
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT....... 70
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............ 71
SECTION 14.6 SEPARABILITY CLAUSE...................................... 71
SECTION 14.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR............. 71
SECTION 14.8 LEGAL HOLIDAYS........................................... 71
SECTION 14.9 GOVERNING LAW............................................ 72
SECTION 14.10 NO RECOURSE AGAINST OTHERS............................... 72
SECTION 14.11 SUCCESSORS............................................... 72
SECTION 14.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS................. 72
SECTION 14.13 BENEFITS OF INDENTURE.................................... 73
SECTION 14.14 MULTIPLE ORIGINALS....................................... 73
EXHIBIT A
FORM OF GUARANTY 75
v
<PAGE>
INDENTURE dated as of , by and among DC Holdco, Inc., a Delaware
corporation ("COMPANY"), The Walt Disney Company, a Delaware corporation, as
guarantor (the "Guarantor"), and , as trustee ("TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES") to be issued in one or more series as in this Indenture
provided.
The Company is a wholly owned subsidiary of the Guarantor.
The Guarantor has entered into an Amended and Restated Agreement and Plan
of Reorganization dated as of July 31, 1995, (the "Reorganization Agreement")
whereby with Capital Cities/ABC, Inc., a New York corporation ("Capital
Cities") will become a subsidiary of the Company (the "Acquisition"). The
Acquisition may be accomplished pursuant to the Reorganization Agreement other
instruments effecting the business combination between the Guarantor and Capital
Cities.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of the Holders of the Securities or each series
thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or, at
the option of the Company, in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or
<PAGE>
holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different Authorized Newspapers
meeting the foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is payable to the
bearer.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any committee of such board authorized with respect to any matter to
exercise the powers of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or m the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CASH" means such coin or currency of the United States as at any time
of payment is legal tender for the payment of public and private debts.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres SA.
"COMPANY" means the party named as the "COMPANY" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company or the Guarantor, as the case may be, by its
Chairman of the Board, a Vice Chairman, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee or, with respect to Sections 2.4, 2.8,
2.11 and 7.2, any other employee of the Company or the Guarantor, as the case
may be, named in an Officers' Certificate delivered to the Trustee.
2
<PAGE>
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or
include such successor.
"DEBT" means with respect to any person at any date, without duplication
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to leases which are required to be capitalized under generally accepted
accounting principles consistently applied and (v) all Debt of others for the
payment of which such person is responsible or liable as obligor or guarantor.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the Principal Amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"EURO-CLEAR" means the operator of the Euro-clear System.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GUARANTY" has the meaning set forth in Article XII.
"HOLDER" or "SECURITYHOLDER," when used with respect to any Security,
means, in the case of a Registered Security, a person in whose name a Security
is registered on the Registrar's books and, in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"INTEREST," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
3
<PAGE>
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on
which the Principal of such Security or an installment of Principal or, in the
case of a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 14.4 and 14.5, signed in the name of the
Company or the Guarantor, as the case may be by its Chairman of the Board, a
Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 14.4 and 14.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, the
Guarantor or the Trustee.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or more
of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on the Securities of that series are
payable as specified as contemplated by Section 2.3(a).
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under
4
<PAGE>
Section 2.9 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"REDEMPTION DATE" or "redemption date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"REDEMPTION PRICE" or "redemption price," when used with respect to
any Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered on
the books of the Registrar.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITYHOLDER" or "HOLDER," when used with respect to any Security,
means in the case of a Registered Security, a person in whose name a Security is
registered on the Registrar's books and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 2.13.
"STATED MATURITY," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which an amount
5
<PAGE>
equal to the Principal of such Security or an installment of Principal thereof
or interest there on is due and payable.
"SUBSIDIARY" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) of such person (ii) such person and one or more Subsidiaries or (iii) one or
more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"TRUSTEE" means the party named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"UNITED STATES" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
"UNITED STATES ALIEN" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"BANKRUPTCY LAW" 6.1
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.11
"GUARANTOR SENIOR INDEBTEDNESS" 13.15
"LEGAL HOLIDAY" 14.8
"NOTICE OF DEFAULT " 6.1
"OUTSTANDING" 2.10
6
<PAGE>
"PAYING AGENT" 2.5
"REGISTRAR" 2.5
"SENIOR INDEBTEDNESS" 13.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
in the United States as in effect from time to time;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE II
7
<PAGE>
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially such form (including global form) as shall be
established by delivery to the Trustee of an Officers' Certificate or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities
or coupons as evidenced by their execution of the Securities or coupons. The
Officers' Certificate so establishing the form of Security or coupons, if any,
of any series shall be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 2.4 for the authentication and
delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 2.3(a), Bearer
Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, PROVIDED, that such method is permitted by
the rules of any securities exchange on which such Securities may be listed, all
as determined by the Officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount
of any increase or decrease in the amount of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the person or persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.4 or 2.11
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall
8
<PAGE>
be in writing but need not comply with Section 14.4 or 14.5 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 14.4 or 14.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS.
(a) The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company (and, if any covenants,
agreements or Events of Default relating to the Guarantor, or any provisions
of Article XII or any Guaranty, are effected thereby, of the Guarantor), or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or
10.3 and except for any Securities which, pursuant to Section 2.4, are
deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities
of the series may be represented initially by a Security in temporary or
permanent global form and, if so, the initial Depositary with respect to
any such temporary or permanent global Security, and if other than as
provided in Section 2.8 or Section 2.11, as applicable, whether and the
circumstances under which beneficial owners of interests in any such
temporary or permanent global Security may exchange such interests for
9
<PAGE>
Securities of such series and of like tenor of any authorized form and
denomination;
(4) the person to whom any interest on any Registered Security of
the series shall be payable, if other than the person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, and the person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which (including any
certification requirement and other terms and conditions under which), any
interest payable on a temporary or permanent global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities of
the series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, and any provisions for the remarketing of such Securities;
10
<PAGE>
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies, in
which payment of the Principal of and any interest on the Securities of
the series shall be payable if other than the currency of the United
States, and if so, whether the Securities of the series may be satisfied
and discharged other than as provided in Article VIII;
(12) if the amount of payments of principal of and any interest on
the Securities of the series is to be determined with reference to an
index, formula or other method, or based on a coin or currency other than
that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined and the calculation agent, if any, with
respect thereto;
(13) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a
United States Alien (including any modification in the definition of such
term), in respect of any tax, assessment or governmental charge withheld
or deducted, under what circumstances and with what procedures and
documentation the Company will pay such additional amounts, whether such
additional amounts will be treated as interest or Principal pursuant to
this Indenture, and whether the Company will have the option to redeem
such Securities rather than pay additional amounts (and the terms of any
such option);
(15) if other than as defined in Section 1.1, the meaning of
"BUSINESS DAY" when used with respect to any Securities of the series;
(16) if and the terms and conditions upon which the Securities of
the series may or must be converted into securities of the Company or
exchanged for securities of the Company or another enterprise;
(17) if and the terms and conditions upon which the obligations of
the Company under the Securities of the series are guaranteed in a manner
other than as described in Article XII;
11
<PAGE>
(18) any terms applicable to Original Issue Discount, if any, (as
that term is defined in the Internal Revenue Code of 1986 and the
Regulations thereunder) including the rate or rates at which such Original
Issue Discount, if any, shall accrue;
(19) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security
of such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Registered Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, one of its
12
<PAGE>
Vice Chairmen, its President or one of its Vice Presidents, or the Treasurer or
any Assistant Treasurer, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
with respect to Securities of a series subject to a Periodic Offering, (a) such
Company Order may be delivered by the Company to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b)
the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate Principal Amount not exceeding
the aggregate Principal Amount established for such series, pursuant to a
Company Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the rate or rates of
interest, if any, the Stated Maturity or Maturities, the original issue date or
dates, the redemption provisions, if any, and any other terms of Securities of
such series shall be determined by a Company Order or pursuant to such
procedures and (d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company, or the Company's duly authorized agent or agents
designated in an Officers' Certificate, which oral instructions shall be
promptly confirmed in writing; and PROVIDED, FURTHER, that, in connection with
its original issuance, no Bearer Security or coupon shall be mailed or otherwise
delivered to any person who is not a United States Alien or to any location in
the United States. Except as permitted by Section 2.9, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Sections 2.1 and 2.3(a), in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
13
<PAGE>
(a) that the form and terms of such Securities and any coupons have been
duly authorized by the Company and established in conformity with the provisions
of this Indenture; and
(b) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of
such Securities (when established in accordance with such procedures as
may be specified from time to time in a Company Order, all as contemplated
by and in accordance with a Board Resolution or an Officers' Certificate
pursuant to Section 2.3(a), as the case may be) will have been, duly
authorized by the Company and established in conformity with the
provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
14
<PAGE>
Notwithstanding the provisions of Section 2.3(a) and of the preceding
three paragraphs, if all Securities of a series are subject to a Periodic
Offering, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 2.3(a) at or prior to the time of
authentication of each Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 2.3(a), each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By:
----------------------------
Authorized Officer
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 14.4 or 14.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be
15
<PAGE>
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 2.5 REGISTRAR AND PAYING AGENT. The Company shall maintain,
with respect to each series of Securities, an office or agency where such
Securities may be presented for registration of transfer or for exchange
("REGISTRAR") and an office or agency where such Securities may be presented
for purchase or payment ("PAYING AGENT"). The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one
or more co-registrars and one or more additional paying agents. The term Paying
Agent includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except
as otherwise provided herein, prior to or on each due date of payments in
respect of any series of Securities, the Company shall deposit with the Paying
Agent with respect to such Securities a sum of money sufficient to make such
payments when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by such Paying
Agent for the making of payments in respect of the Securities of such series and
shall notify the Trustee of any default by the Company in making any such
payment. At any time during the continuance of any such default, a Paying Agent
shall, upon the written request of the Trustee, forthwith pay to the Trustee all
money so held in trust with respect to such Securities. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent for a series
of Securities, it shall segregate the money held by it as Paying Agent with
respect to such Securities and hold it as a separate trust fund. The Company at
any time may require a Paying Agent for a series of Securities to pay all money
held by it with respect to such Securities to the Trustee and to account for any
money disbursed by it. Upon doing so, such Paying Agent shall have no further
liability for the money.
SECTION 2.7 SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and
16
<PAGE>
addresses of Holders of each series of Securities. If the Trustee is not the
Registrar for any series of Securities, the Company shall cause to be furnished
to the Trustee at least semiannually on June 1 and December 1 a listing of
Holders of such series of Securities dated within 15 days of the date on which
the list is furnished and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders of such series of
Securities.
SECTION 2.8 TRANSFER AND EXCHANGE. Upon surrender for registration of
transfer of any Security at the office or agency of the Company designated
pursuant to Section 4.5 for such purpose in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange (other than any exchange of
a temporary Security for a definitive Security not involving any change in
ownership or any exchange pursuant to Section 2.11, 3.6, 9.5 or 10.3, not
involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate Principal Amount and tenor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may
not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate Principal Amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons
17
<PAGE>
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 4.5, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate Principal Amount equal to the
Principal Amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication
18
<PAGE>
and delivery of definitive Securities of such series, will authenticate and
deliver Securities of such series in definitive form and in an aggregate
Principal Amount equal to the Principal Amount of the Security or Securities in
global form representing such series in exchange for such Security or Securities
in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If
the beneficial owners of interests in a permanent global Security are entitled
to exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate Principal Amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 2.3(a), shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; PROVIDED, HOWEVER, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and PROVIDED, FURTHER, that in connection with its original
issuance, no Bearer Security or coupon delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any person
that is not a United States Alien or to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
19
<PAGE>
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Security in global form pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Registered Securities to
the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on (a) if
Securities of the Series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (b) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS. If (a) any mutilated
Security or a Security with a mutilated coupon appertaining thereto is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a BONA FIDE purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in
20
<PAGE>
exchange for any such mutilated Security or coupon or in lieu of any such
destroyed, lost or stolen Security or coupon, or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and of like tenor and Principal Amount, bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or coupon, or to
the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; PROVIDED,
HOWEVER, that the Principal of and any interest on Bearer Securities shall,
except as otherwise provided in Section 4.5, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 2.3(a), any interest on Bearer Securities shall be
payable only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any mutilated, destroyed, lost or stolen Security, or in exchange for a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security and coupons, if any, shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities of that issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities of any series "OUTSTANDING" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "OUTSTANDING" because the Company or an
Affiliate thereof holds the Security; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite Principal Amount of Outstanding
21
<PAGE>
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9). In addition, in determining whether the Holders of the
requisite Principal Amount of Outstanding Securities have given or concurred in
any request, demand, authorization, direction, notice, consent or waiver
hereunder, (i) the Principal Amount of a Discount Security that shall be deemed
to be Outstanding shall be the amount of the Principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 6.2, (ii) the Principal Amount of a
Security denominated in a foreign currency or currencies shall be the Dollar
equivalent, as determined on the date of original issuance of such Security, of
the Principal Amount (or, in the case of a Discount Security, the Dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE
purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities and any coupons thereto appertaining payable on that date, then on
and after that date such Securities shall cease to be outstanding and interest,
if any, on such Securities shall cease to accrue; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized, in
bearer form with one or more coupons or without
22
<PAGE>
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the Officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of Securities represented by a temporary global
Security (which shall be exchanged in accordance with the provisions of the
three succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.5 in a Place of
Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of the same series and of like tenor of authorized
denominations; PROVIDED, HOWEVER, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Unless otherwise specified as contemplated by Section 2.3(a), if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
permanent Securities of the same series, in aggregate Principal Amount equal to
the Principal Amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities of the same series and of like tenor without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Security, an equal aggregate Principal Amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The permanent Securities to be
delivered in exchange for any such temporary global Security shall be in
definitive bearer form or registered form, or shall be represented by a
permanent global Security, or any combination thereof, as
23
<PAGE>
specified as contemplated by Section 2.3(a), and, if any combination thereof is
so specified, as requested by the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for permanent Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 2.3(a). Unless
otherwise specified in such temporary global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary global
Security, except that a person receiving permanent Securities must bear the cost
of insurance, postage, transportation and the like in the event that such person
does not take delivery of such permanent Securities in person at the offices of
Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 2.3(a), interest payable on a temporary global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 2.3(a), for credit without further interest
on or after such Interest Payment Date to the respective accounts of the persons
who are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, any certificate specified as contemplated by Section 2.3(a).
SECTION 2.12 CANCELLATION. All Securities or coupons surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any sinking fund payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and all Registered Securities and matured
coupons so delivered shall be promptly cancelled by it. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued only
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and like tenor or the related coupons pursuant to Section 2.9. All
Bearer Securities and unmatured coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever (including
24
<PAGE>
Securities received by the Company in exchange or payment for other Securities
of the Company) and may deliver to the Trustee (or to any other person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. The Company
may not reissue, or issue new Securities to replace, Securities it has paid or
delivered to the Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted in the form of Securities for any
particular series or as permitted by this Indenture. All cancelled Securities
and coupons held by the Trustee shall be destroyed by the Trustee and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
25
<PAGE>
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities at his
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.8, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14 PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of Principal of and (except as otherwise
specified as contemplated by Section 2.3(a) and subject to Section 2.8 and
Section 2.13) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute
26
<PAGE>
owner of such Bearer Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 2.15 COMPUTATION OF INTEREST . Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on any
Securities which bear interest at a fixed rate shall be computed on the basis of
a 360-day year comprised of twelve 30-day months and (ii) interest on any
Securities which bear interest at a variable rate shall be computed on the basis
of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all
the Securities of any series, the Company shall, within the period specified
below, notify the Trustee in writing of the Redemption Date, the Principal
Amount of and of any other information necessary to identify the Securities of
such series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the Principal
Amount of Registered Securities of such series of a denomination larger than the
minimum autho-
27
<PAGE>
rized denomination for Securities of that series. The Trustee shall make the
selection not more than 60 days before the Redemption Date from Outstanding
Securities of such series not previously called for redemption. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly in writing of the Securities to be redeemed and, in the case of
any portions of Securities to be redeemed, the principal amount thereof to be
redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security (or portion thereof) to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date;
(5) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 14.2 need not
identify particular Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the
28
<PAGE>
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 4.5) and, unless otherwise specified as
contemplated by Section 2.3(a), only upon presentation and surrender of coupons
for such interest; and PROVIDED, FURTHER, that, unless otherwise specified as
contemplated by Section 2.3(a), installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Sections 2.8 and
2.13.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 4.5)
and, unless otherwise specified as contemplated by Section 2.3(a), only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, of all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such
29
<PAGE>
money is then held by the Company in trust and is not required for such purpose,
it shall be discharged from such trust.
SECTION 3.6 SECURITIES REDEEMED IN PART. Any Registered Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and upon such surrender, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security a new Registered
Security or Securities of the same series and of like tenor, in an authorized
denomination as requested by such Holder, equal in aggregate Principal Amount to
and in exchange for the unredeemed portion of the Principal of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of each series of Securities on the dates and in the manner
provided in the Securities and any coupons appertaining thereto and, to the
extent not otherwise so provided, pursuant to this Indenture. An installment of
Principal of or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date funds (in the currency or
currencies of payment with respect to such Securities) designated for and
sufficient to pay such installment. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payments
of Principal or interest may be made by check or by transfer to an account
maintained by the payee subject, in the case of Bearer Securities, to the
provisions of Section 4.5.
SECTION 4.2 SEC REPORTS. The Company shall file with the Trustee, within
15 days after it files such annual and quarterly reports, information, documents
and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
So long as any Guaranty is in effect, the Guarantor shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents
30
<PAGE>
and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act..
SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on September 30, 1996) an Officers'
Certificate stating whether or not the signers know of any Default (including,
without limitation, with respect to the Guarantor)that occurred during such
period. If they do, such Officers' Certificate shall describe the Default and
its status.
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain (a) in the Borough of Manhattan,
the City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, purchase or
redemption and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (b) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series pursuant to Section 4.6), and (c)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The office of the Trustee at
, New York, New York , Attention: shall be such office or
agency for all of the aforesaid purposes unless the Company shall maintain some
other office or agency for such purposes and shall give
31
<PAGE>
prompt written notice to the Trustee of the location, and any change in the
location, of such other office or agency. If at any time the Company shall fail
to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 14.2, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 4.6) at the place specified for that purpose as contemplated by
Section 2.3(a) or, if no such place is specified, at the main office of the
Trustee in London, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
No payment of Principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; PROVIDED, HOWEVER, that, if the
Securities of a series are denominated and payable in Dollars, payment of
Principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section 4.6)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such Principal, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in accordance with the requirements set forth above for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 4.6 ADDITIONAL AMOUNTS. If specified as contemplated by Section
2.3(a), the Securities of a series may provide for the payment of additional
amounts, and in such case, the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto additional amounts as provided
therein. Wherever in this Indenture there is mentioned, in any context, the
payment of the Principal of or any interest on, or in respect of, any Security
of any series or payment of any related coupon, such mention
32
<PAGE>
shall be deemed to include mention of the payment of additional amounts provided
for in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which payment of Principal is made), and at
least 10 days prior to each date of payment of Principal and any interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of Principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by the Securities of such series and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 4.7 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER DEBT. The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either PARI PASSU with the Securities
or subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
SECTION 4.8 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER GUARANTOR
DEBT. The Guarantor shall not create, incur, issue, assume, quaranty or
otherwise become directly or indirectly liable for or with respect to or
otherwise permit to exist any Debt of the Guarantor that is subordinate in
right of payment to any Debt of the Guarantor unless such debt is either PARI
PASSU with the Guarantees or is subordinate in right of payment to the
Guarantees pursuant to subordination provisions that are at least as
favorable to the holders of the Securities as the subordination provision set
forth in this indenture with respect to Guarantor Senior Indebtedness. This
section 4.8 shall be applicable only as to a series of Securities which is
quaranteed pursuant to Article XII or as provided pursuant to Section 2-3(a)
and shall terminate without action by the Company, the Trustee or the
Guarantor if, as and when any Guaranty terminates pursuant to this Indenture.
ARTICLE V
33
<PAGE>
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY AND GUARANTOR MAY MERGE OR TRANSFER ASSETS.
Neither the Company nor, for so long as the Guaranty is in effect, the Guarantor
shall consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company or the Guarantor, as the case may be, shall
be the continuing corporation or (2) the person (if other than the Company
or the Guarantor, as the case may be) formed by such consolidation or into
which the Company or the Guarantor is merged or the person which acquires by
conveyance, transfer or lease the properties and assets of the Company or
the Guarantor substantially as an entirety (i) shall be a corporation,
partnership or trust organized and validity existing under the laws of the
United States or any state thereof or the District of Columbia and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of the
obligations of the Company under the Securities and this Indenture or all of
the obligations of Guarantor under the Guaranty and this Indenture, as the
case may be;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been satisfied.
The successor person formed by such consolidation or into which the Company
or the Guarantor is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor, as the case may
be, under this Indenture with the same effect as if such successor had been
named as the Company or the Guarantor, as the case may be, herein; and
thereafter, except in the case of a lease of its properties and assets
substantially as an entirety, the Company or the Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Indenture, the
Securities, the Guaranty and coupons. Notwithstanding the foregoing, in the
event the Acquisition does not occur, the Company may consolidate with or merge
into the Guarantor and, upon such consolidation or merger, the Securities and
all obligations thereunder and under the Indenture will thereafter become the
sole obligation of the Guarantor (and will bind the Guarantor as if all
references herein to "the Company" were to
34
<PAGE>
the "Guarantor") without any action on the part of the Guarantor, the Company,
the Trustee or any other person (in such event, any Guarantees previously issued
by the Guarantor shall be of no further force or effect).
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of securities, an
"EVENT OF DEFAULT" occurs, with respect to each series of the Securities
individually, if:
(1) the Company defaults in (a) the payment of the principal of any
Security of such series at its Maturity or (b) the payment of any interest
upon any Security of such series when the same becomes due and payable and
continuance of such default for a period of 60 days;
(2) the Company or the Guarantor fails to comply with any of its
agreements in the Securities or this Indenture (other than those referred
to in clause (1) above and other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than such series) and such
failure continues for 60 days after receipt by the Company or the
Guarantor of a Notice of Default;
(3) there shall have been the entry by a court of competent jurisdiction
of (a) a decree or order for relief in respect of the Company or the
Guarantor in an involuntary case or proceeding under any applicable
Bankruptcy Law or (b) a decree or order adjudging the Company or the
Guarantor, bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or the Guarantor or of any substantial part of its
property, or ordering the wind up or liquidation of its affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days;
(4) (a) the Company or the Guarantor commences a voluntary case or
proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (b) the Company or the
Guarantor consents to the entry of a decree or order for relief in respect
of the Company or the Guarantor in an involuntary case or proceeding under
any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (c)
35
<PAGE>
the Company or the Guarantor files a petition or answer or consent seeking
reorganization or substantially comparable relief under any applicable
federal state law, (d) the Company or the Guarantor (x) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or the Guarantor or of any substantial part of its
property, (y) makes an assignment for the benefit of creditors or (z) admits
in writing its inability to pay its debts generally as they become due or
(e) the Company or the Guarantor takes any corporate action in furtherance
of any such actions in this clause (4);
(5) a Guaranty, whether pursuant to Article XII or as provided for in
Section 2.3(a), shall for any reason cease to be, or be asserted in writing
by a responsible officer of the Guarantor not be, in full force and effect,
except to the extent contemplated by the Indenture; or
(6) any other Event of Default provided with respect to Securities of
that series.
Notwithstanding the foregoing, upon the termination of any Guaranty
pursuant to Article XII, the ocurrence of any event forth in clauses (2)
through (6) above with respect to the Guarantor shall not constitute an Event
of Default hereunder.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "CUSTODIAN" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above after receipt of such notice. Any
such notice must specify the Default, demand that it be remedied and state that
such notice is a "NOTICE OF DEFAULT."
SECTION 6.2 ACCELERATION. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of that series by notice to the Company and
the Trustee, may declare the Principal Amount (or, if any of the Securities of
that series are Discount Securities, such portion of the Principal Amount of
such Securities as may be specified in the terms thereof) of all the Securities
of that series to be immediately due and payable. Upon such a declaration, such
Principal (or portion thereof) shall be due and payable immediately. If an
Event of Default specified in Section 6.1(3) or (4) occurs and is continuing,
the Principal (or portion thereof) of all the Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any
36
<PAGE>
other Securityholder) may rescind an acceleration with respect to that series
and its consequences if the rescission would not conflict with any judgment or
decree and all existing Events of Default with respect to Securities of such
series have been cured or waived except nonpayment of the Principal (or portion
thereof) of Securities of such series that has become due solely as a result of
such acceleration and if all amounts due to the Trustee under Section 7.7 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3 OTHER REMEDIES. If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or coupons or does not produce any of the
Securities or coupons in the proceeding. A delay or omission by the Trustee or
any Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series and any related
coupons waive an existing Default with respect to such series and its
consequences except (1) an Event of Default described in Section 6.1(1) with
respect to such series or (2) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of the Holder of each
Outstanding Security of such series affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with
37
<PAGE>
law or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability.
SECTION 6.6 LIMITATION ON SUITS. A Holder of any Security of any series
or any related coupons may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event
of Default with respect to the Securities of that series is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security or coupon to receive payment of the
Principal of and (subject to Section 2.13) interest on such Security or payment
of such coupon on the Stated Maturity or Maturities expressed in such Security
or coupon (or, in the case of redemption, on the Redemption Date) held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected adversely without
the consent of each such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount owing with respect to
such series of Securities and the amounts provided for in Section 7.7.
38
<PAGE>
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 7.7)
and of the Holders of Securities and coupons allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities and coupons, to pay the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness to authorize or consent to or accept or adopt
on behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to the holders of Senior Indebtedness as provided in Article XIII;
39
<PAGE>
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities and interest evidenced by coupons in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for Principal and interest, respectively;
and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the enforcement of the payment of the Principal of or
interest on any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VII
40
<PAGE>
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
41
<PAGE>
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
or coupons and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar
or co-registrar or any other agent of the Company may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities or coupons. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities and, shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act of 1933, as amended, or in
the Indenture or the Securities or any coupons (other than its certificate of
authentication) or for the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION 7.5 NOTICE OF DEFAULTS. If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. Except in the case of a Default described in Section
6.1(1) with respect to any Security of such series or a Default in the payment
of any sinking fund installment with respect to any Security of such series, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in
42
<PAGE>
good faith determines that withholding the notice is in the interests of the
Holders of Securities of such series.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company agrees to notify the Trustee whenever
the Securities of a particular series become listed on any stock exchange and of
any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities and any coupons on all money or
property held or collected by the Trustee, except that held in trust to pay the
Principal of or interest, if any, on particular Securities or for the payment of
particular coupons.
The Company's payment obligations pursuant to this Section 7.7 shall survive
the discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
43
<PAGE>
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; PROVIDED, HOWEVER, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.8. The Holders of a majority in aggregate Principal Amount of
the Outstanding Securities of any series at the time outstanding may remove the
Trustee with respect to the Securities of such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any series).
In the case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to Holders of Securities of the particular series with respect
to which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall
44
<PAGE>
be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-Trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series does not
take office within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of such series at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of a Security
of such series may petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9). In determining whether the
Trustee has conflicting interests as defined in TIA
45
<PAGE>
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) shall be deemed incorporated herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. Except as otherwise
contemplated by Section 2.3(a), when (a) the Company delivers to the Trustee all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be, theretofore authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as provided in
Section 2.8, (ii) Securities or Securities of such series, as the case may be,
and coupons, if any, which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, (iii) coupons, if any,
appertaining to Securities or Securities of such series, as the case may be,
called for redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 3.4, and (iv) Securities or
Securities of such series, as the case may be, and coupons, if any, for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 2.4) for cancellation or (b) all Outstanding
Securities have become due and payable and the Company deposits with the Trustee
cash sufficient to pay at Stated Maturity the Principal Amount of all Principal
of and interest on Outstanding Securities or all Outstanding Securities of such
series (other than Securities replaced pursuant to Section 2.9), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.7, cease to be of further effect
as to all Outstanding Securities or all Outstanding Securities of any series, as
the case may be. The Trustee shall join in the execution of a document prepared
by the Company acknowledging satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers' Certificate and Opinion of
Counsel and at the cost and expense of the Company.
SECTION 8.2 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company on Company Request any money held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company cause to be published once
46
<PAGE>
in an Authorized Newspaper in each Place of Payment of or mail to each such
Holder notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed money then remaining wilt be returned to the Company.
After return to the Company, Holders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person.
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company, may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in Article VIII.
SECTION 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.2, the Company and the
Guarantor, if any, shall be deemed to have been discharged from their
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter "defeasance"). For this purpose,
such defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Sections 2.4, 2.5,2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8
and 8.2 of this Indenture and to have satisfied all its other obligations under
such series of Securities and this Indenture insofar as such series of
Securities are concerned (and the Trustee, at the expense of the Company, and,
upon written request, shall execute proper instruments acknowledging the same).
Subject to compliance with this Article VIII, the Company may exercise its
option under this Section 8.4 notwithstanding the prior exercise of its option
under Section 8.5 with respect to a series of Securities.
SECTION 8.5 COVENANT DEFEASANCE. Upon the Company's exercise under
Section 8.3 of the option applicable this Section 8.5, the Company and the
Guarantor, if any, shall be release from their obligations under Sections 4.2
and 4.3 and Article V and such other provisions as may be provided as
contemplated by Section 2.3(a) with respect to Securities of a particular series
and with respect to the Defeased Securities on and after the date the conditions
set forth below are satisfied (hereinafter "covenant defeasance"), and the
Defeased Securities shall thereafter be deemed to be not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences if any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by
47
<PAGE>
reason of any reference in any such Section or Article to any other provisions
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 6.1 but, except as specified
above, the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in trust,
(i) sufficient funds in the currency or currency unit in which the Securities of
such series are denominated to pay the Principal of and interest to Stated
Maturity (or redemption) on, the Debt Securities of such series, or (ii) such
amount of direct obligations of, or obligations the principal of and interest on
which are fully guaranteed by, the government which issued the currency in which
the Securities of such series are denominated, and which are not subject to
prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the Principal of, and interest to Stated
Maturity (or redemption) on, the Debt Securities of such series;
(b) The Company shall (i) have delivered an opinion of counsel that the
Holders of the Securities of such series will not recognize income, gain or loss
for United States Federal income tax purposes as a result of such defeasance,
and will be subject to tax in the same manner as if no defeasance and discharge
or covenant defeasance, as the case may be, had occurred or (ii) in the case of
an election under Section 8.4 the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (a) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (b) since
the date this Indenture was first executed, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel in the United States shall confirm that, the
holders of Outstanding Securities of that particular series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance; and
(c) The Company shall have delivered to the Trustee an opinion of
counsel to the effect that the funds deposited pursuant to Section 8.6(a)
will not be subject to any rights of the holders of Senior Indebtedness.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Company, the
Guarantor and the Trustee, at any time and from time to time, may enter into one
or more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
48
<PAGE>
(1) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series
thereof, or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to Principal, to change
or eliminate any restrictions (including restrictions relating to payment in
the United States) on the payment of Principal of or any premium or interest
on Bearer Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to
permit the issuance of Securities in uncertificated form; or
(4) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 2.1 and 2.3(a), respectively; or
(5) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
7.8; or
(6) to cure any ambiguity, defect or inconsistency; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), PROVIDED that any such addition, change or
elimination shall neither (a) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (b) modify the rights of the Holder of any
such Security with respect to such provision; or
(8) to remove the Guarantor and references to the Guaranty (as hereafter
defined) upon the occurrence of the events specified in Section 12.3 of this
Indenture;
(9) to secure the Securities; or
(10) to make any other change that does not adversely affect the rights
of any Securityholder.
49
<PAGE>
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor and the Trustee may amend
this Indenture or the Securities of any series or may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of the Securities of
such series and any related coupons under this Indenture; PROVIDED, HOWEVER,
that no such amendment or supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the Principal of, or any installment
of Principal or interest on, any such Security, or reduce the Principal
Amount thereof or the rate of interest thereon or any premium payable upon
redemption thereof or reduce the amount of Principal of any such Discount
Security that would be due and payable upon a declaration of acceleration of
maturity thereof pursuant to Section 6.2, or change the Place of Payment, or
change the coin or currency in which, any Principal of, or any installment
of interest on, any such Security is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such amendment or supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) with respect
to the Securities of such series provided for in this Indenture;
(3) make any change in the terms of the Subordination of the Securities
in a manner adverse to the holders of any series of outstanding Securities;
(4) make any change in the terms of any Guaranty of any series of the
Securities in a manner adverse to the rights of the holders of the
Securities of such series; or
(5) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of
50
<PAGE>
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the Company or an agent of the Company certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of such series so
51
<PAGE>
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities of that series.
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby, except
to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.3(a) for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "MANDATORY SINKING FUND
PAYMENT," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "OPTIONAL SINKING
FUND PAYMENT." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), together in the case of any Bearer Securities of such series with
the same issue date, interest rate and Stated Maturity with all unmatured
coupons appertaining thereto, and (2) may apply as a credit Securities of a
series with the same issue date, interest rate and Stated Maturity which have
been redeemed either at the election of the Company
52
<PAGE>
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of such series with the same issue date, interest
rate and Stated Maturity; PROVIDED that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 10.2 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 3.3. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.4
and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 11.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York or, for a series of Securities issued
as Bearer Securities, in London as the Trustee shall determine or, with the
approval of the Company, at any other place. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 14.2, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
53
<PAGE>
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or for a series of Securities issued as Bearer Securities,
in London, or in such other place as shall be determined and approved by the
Company, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 11.4 QUORUM; ACTION. The persons entitled to vote a majority in
Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 11.2(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the Holders of a majority in
Principal Amount of the Outstanding Securities of that series; PROVIDED,
HOWEVER, that, except as limited by
54
<PAGE>
the proviso to Section 9.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in Principal Amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in Principal Amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 11.7 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 11.7 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 11.2 (b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to vote with respect to the Outstanding Securities of such series
held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect to any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
55
<PAGE>
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 11.2 at which a quorum is present may be adjourned from time to time
by persons entitled to vote a majority in Principal Amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of this Article, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 7.1)
conclusive in favor of the Trustee and the Company, if made in
56
<PAGE>
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 11.6.
(b) The fact and date of the execution by any person of any such instrument
or writing, or the authority of the persons executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Registered Securities held
by the person, and the date of holding the same, shall be proved by the books of
the Registrar.
(d) The Principal Amount and serial numbers of Bearer Securities held by
any person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The Principal Amount and
serial numbers of Bearer Securities held by any person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security in accordance with this Section shall
bind every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determin-
57
<PAGE>
ing whether Holders of the requisite percentage of Outstanding Securities or
Outstanding Securities of a series, as the case maybe, have authorized or agreed
or consented to such request, demand, authorization, direction, notice, consent,
waiver or other act, and for that purpose the Outstanding Securities or
Outstanding Securities of the series, as the case may be, shall be computed as
of such record date; PROVIDED, that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless such request,
demand, authorization, direction, notice, consent, waiver or other act shall
become effective pursuant to the provisions of clause (a) of this Section 11.7
not later than six months after the record date.
ARTICLE XII
GUARANTY
SECTION 12.1 GUARANTY.The provisions of this Article shall be applicable
to any issuance of a series of Securities as to which payment obligations
thereunder, to the extent specified as contemplated by Section 2.3(a), are to be
guaranteed by the Guarantor.
(a) In consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby irrevocably
and unconditionally guarantees (the "Guaranty") to each Holder of a Security of
a particular series authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns that: (x) the Principal of and interest
on the Securities will be paid in full when due, whether at Maturity or Interest
Payment Date or otherwise; (y) all other obligations of the Company to the
Holders or the Trustee under this Indenture or the Securities will be promptly
paid in full or performed, all in accordance with the terms of this Indenture
and the Securities of such series; and (z) in case of any extension of time of
payment or renewal of any Securities of such series or any of such other
obligations, they will be paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at maturity or otherwise.
Failing payment when due of any amount so guaranteed for whatever reason, the
Guarantor shall be obligated to pay the same before failure so to pay becomes an
Event of Default.
(b) The Guarantor hereby agrees that its obligations with regard to this
Guaranty shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstances that might otherwise constitute a
legal or equitable discharge or defense of a guarantor. The Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or right to require the prior disposition
of the assets of the Company to meet their obligations, protest, notice and all
58
<PAGE>
demands whatsoever and covenants that this Guaranty will not be discharged
except by complete performance of the obligations contained in the Securities
and this Indenture or otherwise in accordance with this Indenture or as
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series.
It is the intention of the Guarantor and the Company that the obligations of
the Guarantor hereunder shall be in, but not in excess of, the maximum amount
permitted by applicable law. Accordingly, if the obligations in respect of the
Guaranty would be annulled, avoided or subordinated to the creditors of the
Guarantor by a court of competent jurisdiction in a proceeding actually pending
before such court as a result of a determination both that such Guaranty was
made without fair consideration and that, at the time thereof, immediately after
giving effect thereto, or at the time that any demand is made thereupon the
Guarantor was insolvent or unable to pay its debts as they mature or left with
an unreasonably small capital, then the obligations of the Guarantor under the
Guaranty shall be reduced by such an amount, if any, that would result in the
avoidance of such annulment, avoidance or subordination; PROVIDED, HOWEVER,
that any reduction pursuant to this paragraph shall be made in the smallest
amount as is necessary to reach such result. For purposes of this paragraph,
"fair consideration," "insolvency," "unable to pay its debts as they mature,"
"unreasonably small capital" and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with applicable
law.
SECTION 12.2 EXECUTION AND DELIVERY OF THE GUARANTY.To evidence its
Guaranty set forth in Section 12.1, the Guarantor agrees that a notation of such
Guaranty substantially in the form annexed hereto as Exhibit A or as otherwise
specified as contemplated by Section 2.3(a) with respect to Securities of a
particular series shall be endorsed on each Security authenticated and delivered
by the Trustee and that this Indenture shall be executed on behalf of such
Guarantor by two Authorized Representatives or by one Authorized Representative
with an attestation by another Authorized Representative, by manual or facsimile
signature.
The Guarantor agrees that its Guaranty set forth in Section 12.1 shall
remain in full force and effect and apply to all the Securities notwithstanding
any failure to endorse on each Security a notation of such Guaranty.
If an Authorized Representative whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security on
which a Guaranty is endorsed, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty set forth in
this Indenture on behalf of each Guarantor.
59
<PAGE>
SECTION 12.3 TERMINATION OF THE GUARANTY. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to Securities of a particular
series, the Guarantor's obligations under the Guaranty and this Indenture shall
terminate immediately and automatically upon the consummation of the
Acquisition. The Guarantor intends to Guarantee the obligations of the Company
under the Securities and this Indenture only for the period that the Company is
a wholly owned subsidiary of the Guarantor. From and after the time that
Capital Cities becomes a subsidiary or an Affiliate of the Company, the Trustee
and Holders of Securities, whether then outstanding or issued thereafter, shall
look only to the Company for performance under this Indenture and the Securities
and shall have no further rights or remedies under the Guaranty or this Article
XII. From and after the time the Guaranty terminates under this Article XII,
any certificates authenticated and delivered pursuant to Sector 2.4 shall not
include the form of quaranty attached hereto as Exhibit A.
ARTICLE XIII
SUBORDINATION
SECTION 13.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XIII. The
Company covenants and agrees, and each Holder of a Security of any series by
such Holder's acceptance thereof likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article XIII, the
indebtedness represented by the Securities and the payment of the Principal
Amount, interest and such other amounts as provided for in Section 2.3(a), if
any, in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding) and
other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a)any Debt of the Company as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Debt of the Company shall be subordinated to
any other Debt of the Company, unless such Debt of the Company expressly
provides that such Debt of the Company shall be senior in right of payment
to the Securities;
(b) any Debt of the Company which by its terms states that such Debt of
the Company shall not be senior in right of payment to the Securities;
60
<PAGE>
(c) Debt of the Company in respect of the Securities; and
(d) any Debt of the Company to any Affiliate of the Company or a
Subsidiary of the Company.
SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon any
distribution of assets of the Company in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such,
or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling
of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, interest or such other amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities; and
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, by set-off or otherwise,
to which the Holders or the Trustee would be entitled but for the provisions
of this Article XIII, including any such payment or distribution which may
be payable or deliverable by reason of the payment of any other Debt of the
Company being subordinated to the payment of the Securities, shall be paid
by the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of, and premium, if
any, and interest on the Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
61
<PAGE>
In the event that, notwithstanding the foregoing provisions of this Section
13.2, the Trustee or the Holder of any Security shall receive any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee as provided in Section 13.10, or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article XIII only, the words "CASH, PROPERTY OR
SECURITIES," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article XIII with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding; PROVIDED,
HOWEVER, that (i) Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article V shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company for
the purposes of this Section 13.2 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 13.3. ACCELERATION OF SECURITIES. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.2, then and in such event the Company shall promptly notify holders of
Senior Indebtedness of such acceleration. The Company may not pay the Securities
until 120 days have passed after such acceleration occurs and may thereafter pay
the Securities if this Article XIII permits the payment at that time.
62
<PAGE>
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section 13.3, and if such facts then shall have
been known or thereafter shall have been made known to the Trustee (as provided
in Section 13.10) or to such Holder, as the case may be, pursuant to the terms
of this Indenture, then and in such event such payment shall be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 13.3 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.4. DEFAULT IN SENIOR INDEBTEDNESS. The Company may not make any
payment of the Principal Amount, interest or other such amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities and may not
acquire any Securities for cash or property (other than for Capital Stock of the
Company) if:
(1)a default on Senior Indebtedness occurs and is continuing that permits
holders of such Senior Indebtedness to accelerate its maturity; and
(2)the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a similar
notice received within nine months thereafter relating to the same default
on the same issue of Senior Indebtedness shall not be effective for purposes
of this Section 13.4.
The Company may resume payments on the Securities and may acquire Securities
if and when:
(A)the default is cured or waived; or
(B)120 or more days pass after the receipt by the Company of the notice
described in clause (2) above and the default is not then the subject of
judicial proceedings; and
this Article XIII otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section 13.4, and if such fact then shall have been known or
thereafter shall have been made known to the Trustee as provided in Section
13.10 or such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in such event such
63
<PAGE>
payment shall be paid over and delivered forthwith to the Company by or on
behalf of the person holding such payment for the benefit of the holders of the
Senior Indebtedness.
The provisions of this Section 13.4 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.5. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
Article XIII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 13.2 or under the conditions described in Section
13.3 or 13.4, from making payments at any time of the Principal Amount, interest
or such other amounts as may be provided for in Section 2.3(a), if any, as the
case may be, in respect of the Securities, or (b) the application by the Trustee
or the retention by any Holder of any money deposited with it hereunder to the
payment of or on account of the Principal Amount, interest or such other amounts
as may be provided for in Section 2.3(a), if any, as the case may be, in respect
of the Securities if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 13.10, notice that such payment would
have been prohibited by the provisions of this Article XIII.
SECTION 13.6. SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XIII to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities applicable to
the Senior Indebtedness until the Principal Amount, interest or such other
amounts as provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XIII, and no payments pursuant to the provisions of this Article XIII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 13.7. PROVISION SOLELY TO DEFINE RELATIVE RIGHTS. The provisions
of this Article XIII are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on one hand, and the holders
of Senior Indebtedness, on the other hand. Nothing contained in this Article
XIII or elsewhere in this Indenture or in the Securities is intended to or
shall:
64
<PAGE>
(a) impair, as between the Company and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Securities the Principal Amount, interest or such other
amounts as may be provided for in Section 2.3(a), if any, as the case may
be, in respect of the Securities as and when the same shall become due and
payable in accordance with the terms of the Securities and this Indenture
and which, subject to the rights under this Article XIII of the holders of
Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XIII of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.8. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XIII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 13.9. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article XIII or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release
65
<PAGE>
any person liable in any manner for the collection of Senior Indebtedness and
(iv) exercise or refrain from exercising any rights against the Company or any
other person.
SECTION 13.10. NOTICE TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article XIII or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof at the address specified in
Section 14.2 from the Company or a holder of Senior Indebtedness or from any
trustee or agent therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a Trust
Officer of the Trustee shall not have received, at least three Business Days
prior to the date upon which by the terms hereof any such money may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of any Security), the
notice with respect to such money provided for in this Section 13.10, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XIII, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article XIII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article XIII, the Trustee, subject to the provisions of Section 7.1, and
the Holders of the
66
<PAGE>
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIII.
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XIII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 14.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XIII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XIII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 13.14. ARTICLE XIII APPLICABLE TO PAYING AGENTS. The term
"Trustee" as used in this Article XIII shall (unless the context otherwise
requires) be construed as extending to and including the Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article XIII in addition to or in place of the Trustee; provided,
however, that Sections 13.10 and 13.12 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
67
<PAGE>
SECTION 13.15. SUBORDINATION OF GUARANTY. Any Guaranty of the Securities,
whether provided by Article XIII or otherwise, shall be subordinated to
Guarantor Senior Indebtedness to the extent and in the manner that the
Securities are subordinated to Senior Indebtedness of the Company.
"GUARANTOR SENIOR INDEBTEDNESS" means the principal of (and premium, if
any) and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Guarantor against the
bankruptcy or any other insolvency estate of the Guarantor in such proceeding)
and other amounts due on or in connection with any Debt of the Guarantor
incurred, assumed or guaranteed by the Guarantor, whether outstanding on the
date of the Indenture or thereafter incurred, assumed or guaranteed and all
renewals, extensions and refundings of any such Debt of the Guarantor; provided,
however, that the following will not constitute Guarantor Senior Indebtedness:
(a) any Debt of the Guarantor as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Debt of the Guarantor shall be subordinated
to any other Debt of the Guarantor, unless such Debt of the Guarantor
expressly provides that such Debt of the Guarantor shall be senior in right
of payment to the Guarantees;
(b) any Debt of the Guarantor which by its terms states that such Debt of
the Guarantor shall not be senior in right of payment to the Guarantees;
(c) Debt of the Guarantor in respect of the Guarantees; and
(d) any Debt of the Guarantor to any Affiliate of the Guarantor or
Subsidiary of the Guarantor.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 14.2 NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
68
<PAGE>
if to the Company:
DC Holdco, Inc.
500 South Buena Vista Street
Burbank, CA 91521
Attention: Legal Department
if to the Guarantor:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Legal Department
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Registered Securities shall
be mailed to such Securityholder at the Securityholder's address as it appears
on the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed. Notice shall be sufficiently given to
Holders of Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day at least twice, the first such publication to be
not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders
69
<PAGE>
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company mails a notice or communication to the Holders of Securities
of a particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
acceptance of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication
SECTION 14.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company and the Trustee, the Registrar or the Paying Agent with
respect to a particular series of Securities, and anyone else, shall have the
protection of TIA Section 312(c).
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
70
<PAGE>
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 14.6 SEPARABILITY CLAUSE. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 14.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. With respect to
the Securities of a particular series, the Trustee with respect to such series
of Securities may make reasonable rules for action by or a meeting of Holders of
such series of Securities. With respect to the Securities of a particular
series, the Registrar and the Paying Agent with respect to such series of
Securities may make reasonable rules for their functions.
SECTION 14.8 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or Principal need not be made at such Place of Payment, or
such
71
<PAGE>
other action need not be taken, on such date, but the action shall be taken on
the next succeeding day that is not a Legal Holiday at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or such other date and to the extent
applicable no Original Issue Discount or interest, if any, shall accrue for the
intervening period.
SECTION 14.9 GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE
GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 14.10 NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company or the Guarantor shall not have any
liability for any obligations of the Company or the Guarantor under the
Securities, the Guarantees or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder of such Security shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 14.11 SUCCESSORS. All agreements of the Company and the Guarantor
in this Indenture and the Securities and the Guarantor shall bind its respective
successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 14.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 14.13 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, the Guarantees express or implied, shall give to any person, other
than the parties hereto and their successors hereunder and the Holders of
Securities, any benefits or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 14.14 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
72
<PAGE>
DC HOLDCO, INC.
By:
---------------------------------
Name:
Title:
Attest:
-------------------------------------
Name:
Title:
, as Trustee
By
-----------------------------------
Name:
Title:
Attest:
---------------------------------------
Name:
Title:
THE WALT DISNEY COMPANY
as Guarantor
By:
-----------------------------
Name:
Title:
73
<PAGE>
Attest:
--------------------------------------
Name:
Title:
74
<PAGE>
EXHIBIT A
FORM OF GUARANTY
For value received, The Walt Disney Company, a Delaware corporation, hereby
fully and unconditionally guarantees, on a subordinated basis to the extent set
forth in the Indenture, to the Holder of the Security upon which this Guaranty
is endorsed the due and punctual payment, as set forth in the Indenture pursuant
to which such Security and this Guaranty were issued, of the Principal of and
interest on such Security when and as the same shall become due and payable for
any reason according to the terms of such Security and Article XII of the
Indenture. The Guaranty of the Security upon which this Guaranty is endorsed
will terminate automatically upon the occurrence of certain events as provided
in Article XII of the Indenture, including without limitation the consummation
of the acquisition of Capital Cities/ABC, Inc. by The Walt Disney Company. The
Guaranty of the Security upon which this Guaranty is endorsed will not become
effective until the Trustee signs the certificate of authentication on such
Security.
THE WALT DISNEY COMPANY
By:
-----------------------------------
Attest:
-------------------------------
75
<PAGE>
Exhibit 4.6
-------------------------------------------------------------------------------
DC HOLDCO, INC.
, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
-----------------
DEPOSIT AGREEMENT
-----------------
Dated as of
-------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 FORM AND TRANSFER OF RECEIPTS. . . . . . . . . . . . . . . . . . . 2
SECTION 2.2 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT
THEREOF. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 REGISTRATION OF TRANSFER OF RECEIPTS . . . . . . . . . . . . . . . 4
SECTION 2.4 SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF RECEIPTS AND
WITHDRAWAL OF STOCK. . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.5 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
EXCHANGE OF RECEIPTS . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.6 LOST RECEIPTS, ETC.. . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS . . . . . . . 6
SECTION 2.8 REDEMPTION OF STOCK. . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. . . . . . . . . 8
SECTION 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES . . . . . . . . . . 8
SECTION 3.3 WARRANTY AS TO STOCK . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 CASH DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, RIGHTS PREFERENCES OR PRIVILEGES. . 9
SECTION 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES . . . . . . . . . .10
i
<PAGE>
SECTION 4.4 NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR HOLDERS OF
RECEIPTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 4.5 VOTING RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 4.6 CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC.. . . . . . . . . . . . . . . . . . . .12
SECTION 4.7 DELIVERY OF REPORTS. . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 4.6 LIST OF RECEIPT HOLDERS. . . . . . . . . . . . . . . . . . . . . .12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR . . . . . . . . . . . . . . . . . . . . .13
SECTION 5.2 PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY . . . . . . .14
SECTION 5.3 OBLIGATION OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
DEPOSITARY. . . . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 5.5 CORPORATE NOTICES AND REPORTS. . . . . . . . . . . . . . . . . . .17
SECTION 5.6 INDEMNIFICATION BY THE COMPANY . . . . . . . . . . . . . . . . . .17
SECTION 5.7 CHARGES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 5.8 TAX COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
SECTION 6.2 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . .19
SECTION 7.2 EXCLUSIVE BENEFIT OF PARTIES . . . . . . . . . . . . . . . . . . .19
SECTION 7.3 INVALIDITY OF PROVISIONS . . . . . . . . . . . . . . . . . . . . .19
SECTION 7.4 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ii
<PAGE>
SECTION 7.5 APPOINTMENT OF REGISTRAR . . . . . . . . . . . . . . . . . . . . .20
SECTION 7.6 HOLDERS OF RECEIPTS ARE PARTIES. . . . . . . . . . . . . . . . . .20
SECTION 7.7 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 7.8 INSPECTION OF DEPOSIT AGREEMENT. . . . . . . . . . . . . . . . . .20
SECTION 7.9 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
FORM OF DEPOSITARY SHARES
FORM OF FACE RECEIPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
FORM OF REVERSE OF RECEIPT . . . . . . . . . . . . . . . . . . . . . . . . . A-3
iii
<PAGE>
DEPOSIT AGREEMENT, dated as of , among DC HOLDCO, INC., a
Delaware corporation, (the "Company"), __________, a ___________ trust company
(the "Depositary"), and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series Preferred Stock of
the Company with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designation filed with the
Secretary of State of the State of Delaware establishing the Stock as a series
of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean ______________, and any successor as Deposi-
tary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.1 and shall include the Registrar if such Registrar is not
the Depositary.
<PAGE>
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary receipt business shall
be administered.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of Receipts
as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's Series Preferred
Stock, $ par value per share, with a liquidation preference of $ per
share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders, with appropriate
insertions, modifications and omissions, as hereinafter provided, if and to the
extent required by any securities exchange on which the Receipts are listed.
Pending the preparation of definitive Receipts or if definitive Receipts are not
required by any securities exchange on which the Receipts are listed, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.2, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at the
2
<PAGE>
Depositary's Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge to the
holder therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Agreement, and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; PROVIDED, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by a manual signa-
ture of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed in accordance with the
foregoing sentence. The Depositary shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt, which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; PROVIDED, HOWEVER, that until transfer of a Receipt shall be regis-
tered on the books of the Depositary as provided in Section 2.3, the Depositary
may, notwithstanding any notice to the contrary, treat the record holder thereof
at such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
3
<PAGE>
SECTION 2.2 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT
THEREOF. Subject to the terms and conditions of this Deposit Agreement, the
Company or any holder of Stock may from time to time deposit shares of Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the whole number of
Depositary Shares representing, in the aggregate, the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
SECTION 2.3 REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.4 SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the
4
<PAGE>
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; PROVIDED,
HOWEVER, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or upon his order, a new Receipt
evidencing such excess number of Depositary Shares, PROVIDED, HOWEVER, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Delivery of the Stock and money and other property being withdrawn may be made
by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holders shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts surren-
dered by such holder for withdrawal of such shares of Stock be properly endorsed
in blank or accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
5
<PAGE>
SECTION 2.5 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.2 and 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit Agreement
or (iii) with the approval of the Company, for any other reason.
SECTION 2.6 LOST RECEIPTS, ETC. In case any receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof, (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it and (iii) the payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.7 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so cancelled.
SECTION 2.8 REDEMPTION OF STOCK. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary not less than
60 days' notice of the date of such proposed redemption or exchange of Stock and
of the number of such shares held by the Depositary to be so redeemed and the
6
<PAGE>
applicable redemption price, as set forth in the Certificate, which notice shall
be accompanied by a certificate from the Company stating that such redemption of
Stock is in accordance with the provisions of the Certificate. On the date of
such redemption, provided that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of the Stock to be redeemed,
plus an amount equal to any accrued and unpaid dividends thereon to the date
fixed for redemption, in accordance with the provisions of the Certificate, the
Depositary shall redeem the number of Depositary Shares representing such Stock.
The Depositary shall mail notice of the Company's redemption of Stock and the
proposed simultaneous redemption of the number of Depositary Shares representing
the Stock to be redeemed by first-class mail, postage prepaid, not less than 30
and not more than 60 days prior to the date fixed for redemption of such Stock
and Depositary Shares (the "Redemption Date") to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed, at the address of
such holders as they appear on the records of the Depositary; but neither
failure to mail any such notice of redemption of Depositary Shares to one or
more such holders nor any defect in any notice of redemption of Depositary
Shares to one or more such holders shall affect the sufficiency of the
proceedings for redemption as to the other holders. The Company will provide
the Depositary with the information necessary for the Depositary to prepare such
notice and each such notice shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; (iii) the redemption price; (iv)
the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by the Depositary by lot or by any other substantially
equivalent method, in each case, as determined by the Depositary in its sole
discretion.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption) (i) dividends on the shares of Stock so called for redemption
shall cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
the same fraction of the redemption price per share paid with respect to the
shares of Stock
7
<PAGE>
as the fraction each Depositary Share represents of a share of Stock plus the
same fraction of all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid. Any funds deposited by
the Company with the Depositary for any Depositary Shares that the holders
thereof fail to redeem will be returned to the Company after a period of two
years from the date such funds are so deposited.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper or otherwise reasonably request. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal or
conversion of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
SECTION 3.2 PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the
8
<PAGE>
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 WARRANTY AS TO STOCK. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive
the deposit of the Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of such dividend or
distribution as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
PROVIDED, HOWEVER, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash distribution
in respect of the Stock an amount on account of taxes or as otherwise required
by law, regulation or court process, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. In
the event that the calculation of any such cash dividend or other cash
distribution to be paid to any record holder on the aggregate number of
Depositary Receipts held by such holder results in an amount which is a fraction
of a cent, the amount the Depositary shall distribute to such record holder
shall be rounded to the next highest whole cent; and upon request of the
Depositary, the Company shall pay the additional amount to the Depositary for
distribution.
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems such distribution
not to be feasible, the Depositary may, with the approval of the Company, adopt
such method as
9
<PAGE>
it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 in the case of a distribution received in
cash.
SECTION 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; PROVIDED,
HOWEVER, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights, prefer-
ences or privileges available to holders of Receipts by the issue of warrants or
otherwise, or (ii) if and to the extent so instructed by holders of Receipts who
do not desire to execute such rights, preferences or privileges, then the
Depositary, in its discretion (with approval of the Company, in any case where
the Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places and
upon such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed by the Depositary to the record
holders of Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such registration
statement shall have become effective, or that the offering and sale of such
securities to such holders are exempt
10
<PAGE>
from registration under the provisions of the Securities Act and the Company
shall have provided to the Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company will use its reasonable best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.
SECTION 4.4 NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR HOLDERS
OF RECEIPTS. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.5 VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the relevant record date, the Depositary
shall use its best efforts to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all reasonable action which may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will not vote (but, at its discretion, may appear at any meeting
with
11
<PAGE>
respect to such Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.6 CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification of
the Stock, or upon any recapitalization, reorganization, merger or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in the fraction of an interest in one share
of Stock represented by one Depositary Share as may be necessary ( as certified
by the Company) fully to reflect the effects of such change in par value or
liquidation preference, split-up, combination or other reclassification of
Stock, or of such recapitalization, reorganization, merger or consolidation and
(ii) treat any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited securities
so received in exchange for or upon conversion or in respect of such Stock. In
any such case, the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par value or liquidation preference, split-
up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation to surrender such Re-
ceipts to the Depositary with instructions to convert, exchange or surrender the
Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts would have been converted or for which
such Stock would have been exchanged or surrendered had such Receipt been
surrendered immediately prior to the effective date of such transaction.
SECTION 4.7 DELIVERY OF REPORTS. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
SECTION 4.8 LIST OF RECEIPT HOLDERS. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of the
most recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts. The Company shall be entitled to
receive such list twice annually without charge.
12
<PAGE>
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during normal
business hours shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on one or more
national securities exchanges, the Depositary will appoint a Registrar
(acceptable to the Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of any such
exchange) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Receipts, such
Depositary Shares or such Stock are listed on one or more other stock exchanges,
the Depositary will, at the request and at the expense of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock as
may be required by law or applicable securities exchange regulation.
The Depositary may from time to time appoint Depositary's Agents to
act in any respect for the Depositary for the purposes of this Deposit Agreement
and may at any time appoint additional Depositary's Agents and vary or terminate
the appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
13
<PAGE>
SECTION 5.2 PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary
nor any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Certificate of Incorporation or by reason of any act of
God or war or other circumstance beyond the reasonable control of the relevant
party, the Depositary, the Depositary's Agent, the Registrar or the Company
shall be prevented, delayed or forbidden from, or subjected to any penalty on
account of, doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, the Registrar or the Company incur liability to any holder
of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which the terms of this Deposit Agreement
shall provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement except, in the case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the gross negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
SECTION 5.3 OBLIGATION OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement or any Receipt to holders of Receipts
other than for its gross negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such infor-
mation. The Depositary, any Depositary's Agent, the Registrar and the Company
may each rely and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
14
<PAGE>
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company and hold it harmless from any loss, liability or
expense (including the reasonable costs and expenses of defending itself) which
may arise out of acts performed or omitted by the Depositary, including when
such Depositary acts as Registrar, or the Depositary's Agents in connection with
this Agreement due to its or their negligence, willful misconduct or bad faith.
The indemnification obligations of the Depositary set forth in this Section 5.3
shall survive any termination of this Agreement and any succession of any
Depositary.
The Depositary, its parent, affiliates or subsidiaries, the
Depositary's Agents, and the Registrar may own, buy, sell and deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary, parent,
affiliate or subsidiary or Depositary's Agent or Registrar hereunder. The
Depositary may also act as trustee, transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
nor the Registrar, acting as the Depositary's Agent or Registrar, as the case
may be, shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary, any Depositary's Agent and the
Registrar are acting only in a ministerial capacity as Depositary or Registrar
for the Stock.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any representation or
has any responsibility as to the validity of the registration statement pursuant
to which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares or the Receipts (except for its counter-signatures
thereon) or any instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity or genuineness of any
Stock at any time deposited with the Depositary hereunder or of the Depositary
Shares, as to the validity or sufficiency of this Deposit Agreement, as to the
value
15
<PAGE>
of the Depositary Shares or as to any right, title or interest of the record
holders of Receipts in and to the Depositary Shares. The Depositary shall not
be accountable for the use or application by the Company of the Depositary
Shares or the Receipts or the proceeds thereof.
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
16
<PAGE>
SECTION 5.5 CORPORATE NOTICES AND REPORTS. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION 5.6 INDEMNIFICATION BY THE COMPANY. The Company shall indem-
nify the Depositary, any Depositary's Agent and the Registrar against, and hold
each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Deposit Agreement and the Receipts
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary or Depositary's Agent.
SECTION 5.7 CHARGES AND EXPENSES. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all reasonable charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares, and any redemption or exchange of the
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges
and expenses to the Company at such intervals as the Company and the Depositary
may agree.
SECTION 5.8 TAX COMPLIANCE. The Depositary, on its own behalf and on
behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of
17
<PAGE>
rights under the Depositary Receipts or the Depositary Shares. Such compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.3 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment (other
than any change in the fees of any Depositary or Registrar, which shall go into
effect not sooner than three months after notice thereof to the holders of the
Receipts) which shall materially adversely alter the rights of the holders of
Receipts shall be effective unless such amendment shall have been approved by
the holders of at least a majority of the Depositary Shares then outstanding.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to be bound by
the Deposit Agreement as amended thereby. Notwithstanding the foregoing, in no
event may any amendment impair the right of any holder of any Depositary Shares,
upon surrender of the Receipts evidencing such Depositary Shares and subject to
any conditions specified in this Deposit Agreement, to receive shares of Stock
and any money or other property represented thereby, except in order to comply
with mandatory provisions of applicable law.
SECTION 6.2 TERMINATION. This Deposit Agreement may be terminated by
the Company at any time upon not less than 60 days prior written notice to the
Depositary, in which case, on a date that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to holders of Depositary Shares, upon surrender of the Receipts evidencing such
Depositary Shares, such number of whole or fractional shares of Stock as are
represented by such Depositary Shares. This Deposit Agreement will
automatically terminate after (i) all outstanding Depositary Shares have been
redeemed pursuant to Section 2.8 or
18
<PAGE>
(ii) there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Receipts pursuant to Sections 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, the Registrar and any Depositary's Agent under
Sections 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.2 EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3 INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 NOTICES. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at
DC Holdco, Inc.
500 South Buena Vista Street
Burbank, California 91521
Attention: Legal Department
Facsimile No.: (818)
or at any other address of which the Company shall have notified the Depositary
in writing.
19
<PAGE>
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at:
Attention:
Facsimile No.:
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited for mailing by first class mail, postage
prepaid. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5 APPOINTMENT OF REGISTRAR. The Company hereby also
appoints the Depositary as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointments.
SECTION 7.6 HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.7 GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCOR-
20
<PAGE>
DANCE WITH, THE LAWS APPLICABLE TO CONTRACTS MADE IN AND TO BE PERFORMED IN THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 7.8 INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agent and
shall be open to inspection during business hours at the Depositary's Office or
respective offices of the Depositary's Agent, if any, by any holder of a
Receipt.
SECTION 7.9 HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
21
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
DC HOLDCO, INC.
Attested by
------------------------------- By
-------------------------------------
Attested by
------------------------------- By
-------------------------------------
22
<PAGE>
ANNEX A
TEMPORARY RECEIPT EXCHANGEABLE FOR DEFINITIVE CERTIFICATE FOR
ENGRAVED RECEIPT WHEN READY FOR DELIVERY
DEPOSITARY SHARES
TRANSFERABLE
DEPOSITARY RECEIPT
This Certificate is
transferable in
New York, New York
CUSIP
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH
DEPOSITARY SHARE REPRESENTING A INTEREST
IN ONE SHARE OF % PREFERRED STOCK
DC HOLDCO, INC.
A CORPORATION INCORPORATED UNDER THE
LAWS OF THE STATE OF DELAWARE
, as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of DEPOSITARY SHARES
----------------------------
("Depositary Shares"), each Depositary Share representing a interest in
one share of Series Preferred Stock, par value $ per share (the "Stock"), of DC
Holdco, Inc., a Delaware corporation (the "Corporation"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of (the "Deposit Agreement"), between the Corporation
and the Depositary. By accepting this Depositary Receipt, the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions of the
Deposit Agreement. This Depositary receipt shall not be valid or obligatory for
any purpose or be entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual signature of a duly
authorized officer or,
A-1
<PAGE>
if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by a duly authorized officer thereof.
Dated:
Countersigned
Depositary and Registrar
By
Authorized Officer
A-2
<PAGE>
DC HOLDCO, INC.
DC HOLDCO, INC. WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR SUMMARY OF THE
CERTIFICATE OF INCORPORATION, AS AMENDED, INCLUDING THE CERTIFICATE OF
DESIGNATION ESTABLISHING THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIFIED RIGHTS OF THE SERIES PREFERRED
STOCK AND THE CERTIFICATE OF DESIGNATION OF EACH OTHER CLASS OF PREFERRED STOCK
OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCE AND/OR RIGHTS.
ANY SUCH REQUEST SHOULD BE ADDRESSED TO DC HOLDCO, INC., 500 SOUTH BUENA VISTA
STREET, BURBANK, CALIFORNIA 91521, ATTENTION: INVESTOR RELATIONS.
_________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Depositary Receipt, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ______ Custodian ______
(Cust) (Minor)
under Uniform Gifts to
Minors Act ____________
(State)
UNIF TRAN MIN ACT - ________ Custodian (until age ___)
(Cust)
________ under Uniform Transfers
(Minor)
to Minors Act__________________
(State)
Additional abbreviations may also be
used though not in the above list.
A-3
<PAGE>
For value received, ____________________ hereby sell(s), assign(s) and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________
______________________________________________________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________ Depositary Shares represented by the within
Depositary Receipt, and do(es) hereby irrevocably constitute and appoint
________________________ Attorney to transfer the said Depositary Shares
on the books of the within named Depositary with full power of substitution in
the premises.
Dated ____________________ Signature:
________________________________
NOTICE: The signature to this as-
signment must correspond with the name
as written upon the face of this
Depositary Receipt in every particular,
without alteration or enlargement or any
change whatever.
SIGNATURE GUARANTEED
____________________________________
A-4
<PAGE>
EXHIBIT 12.1
THE WALT DISNEY COMPANY
RATIO OF EARNINGS TO FIXED CHARGES
NINE MONTHS ENDED JUNE 30, 1995 AND 1994
FIVE YEARS ENDED SEPTEMBER 30, 1994
(IN MILLIONS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
JUNE 30, YEAR ENDED SEPTEMBER 30,
---------------------- ----------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS
Income from continuing operations before
income taxes and cumulative effect of
accounting changes........................ $ 1,712.0 $ 1,371.4 $ 1,703.1 $ 1,074.0 $ 1,301.8 $ 1,018.5 $ 1,324.7
Plus
Equity in (earnings) loss of Euro Disney... 74.6 52.8 110.4 258.4 66.1 (23.6) --
Euro Disney dividends...................... -- 9.5 -- -- --
Interest expense and amortization of debt
discounts and premiums on all
indebtedness.............................. 168.0 116.9 119.9 157.7 126.8 105.0 43.1
Imputed interest on operating leases....... 51.6 41.2 57.2 59.0 49.5 45.4 37.8
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total Earnings............................... $ 2,006.2 $ 1,582.3 $ 1,990.6 $ 1,558.6 $ 1,544.2 $ 1,145.3 $ 1,405.6
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
FIXED CHARGES
Interest expense and amortization of debt
discounts and premiums on all
indebtedness.............................. $ 168.0 $ 116.9 $ 119.9 $ 157.7 $ 126.8 $ 105.0 $ 43.1
Capitalized interest....................... 29.9 29.3 38.6 19.4 25.3 37.4 47.6
Imputed interest on operating leases....... 51.6 41.2 57.2 59.0 49.5 45.4 37.8
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total Fixed Charges.......................... $ 249.5 $ 187.4 $ 215.7 $ 236.1 $ 201.6 $ 187.8 $ 128.5
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
RATIO OF EARNINGS TO FIXED CHARGES........... 8x 8x 9x 7x 8x 6x 11x
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
November 21, 1994 appearing on page 25 of The Walt Disney Company's Annual
Report on Form 10-K for the year ended September 30, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Los Angeles, California
September 15, 1995
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) dated September 20, 1995 and related
Prospectus of The Walt Disney Company and DC Holdco, Inc. and to the
incorporation by reference therein of our reports dated February 28, 1995 with
respect to the consolidated financial statements and schedule of Capital
Cities/ABC, Inc. included in its Annual Report and Form 10-K for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
September 15, 1995
