<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED):
March 7, 1996
------------------------
THE WALT DISNEY COMPANY
DISNEY ENTERPRISES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
DELAWARE
(State or Jurisdiction of Incorporation)
<TABLE>
<S> <C>
1-11605 95-4545390
1-4083 95-0684440
(Commission File Number) (IRS Employer Identification No.)
</TABLE>
<TABLE>
<S> <C>
500 SOUTH BUENA VISTA STREET, BURBANK, CALIFORNIA 91521
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
(818) 560-1000
(Registrant's Telephone Number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 5. OTHER EVENTS
Exhibits are filed herewith in connection with the Registration Statement on
Form S-3 (No. 33-62777) of The Walt Disney Company (which, in connection with
the acquisition (the "Acquisition") of Capital Cities/ABC, Inc., was renamed
"Disney Enterprises, Inc.") and DC Holdco, Inc. (which, in connection with the
Acquisition, was renamed "The Walt Disney Company"), relating to an aggregate of
$5,000,000,000 of debt securities, preferred stock and warrants.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) 1.1(a) Underwriting Agreement, dated March 22, 1996, among The Walt
Disney Company ("Disney") and the Underwriters named therein.
1.1(b) Distribution Agreement, dated March 7, 1996, among Disney and the
Agents named therein.
4.1(a) Indenture, dated as of March 7, 1996, between Disney and Citibank,
N.A., a national banking association, as trustee (the
"Indenture").
4.1(b) Officers' Certificate establishing each of Disney's 6 3/8% Senior
Notes due March 30, 2001 and 6 3/4% Senior Notes due March 30,
2006 as a series of securities under the Indenture.
4.1(c) Form of 6 3/8% Senior Note due March 30, 2001 (included in Exhibit
4.1(b)).
4.1(d) Form of 6 3/4% Senior Note due March 30, 2006 (included in Exhibit
4.1(b)).
4.1(e) Officers' Certificate establishing Medium-Term Notes as a series
of securities under the Indenture.
4.1(f) Form of Medium-Term Note (Discount) (included in Exhibit 4.1(e)).
4.1(g) Form of Medium-Term Note (Fixed Rate) (included in Exhibit
4.1(e)).
4.1(h) Form of Medium-Term Note (Floating Rate) (included in Exhibit
4.1(e)).
4.1(i) Form of Medium-Term Note (Zero Coupon) (included in Exhibit
4.1(e)).
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each of
the Registrants has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE WALT DISNEY COMPANY
Date: April 5, 1996 By: /s/ DAVID K. THOMPSON
--------------------------------------
David K. Thompson
Senior Vice President -- Assistant
General Counsel
DISNEY ENTERPRISES, INC.
Date: April 5, 1996 By: /s/ DAVID K. THOMPSON
--------------------------------------
David K. Thompson
Senior Vice President -- Assistant
General Counsel
3
<PAGE>
Exhibit 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
March 22, 1996
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Dear Sirs:
We (the "Representatives") are acting on behalf of the underwriters
(including ourselves) named below (such underwriters being herein called the
"Underwriters"), and we understand that The Walt Disney Company, a Delaware
corporation (the "Company"), proposes to issue and sell U.S. $1,300,000,000
aggregate principal amount of its 6-3/8% Senior Notes due March 30, 2001 (the
"Five-Year Notes") at an initial offering price of 100.000% and U.S.
$1,300,000,000 aggregate principal amount of its 6-3/4% Senior Notes due
March 30, 2006 (the "Ten-Year Notes") at an initial offering price of 99.855%
(the Five-Year Notes and the Ten-Year Notes collectively referred to hereinafter
as 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 (i) principal amount of the Five-Year
Notes set forth below opposite their names at a purchase price of 99.650% of the
principal amount thereof plus accrued interest, if any, from March 27, 1996 and
(ii) principal amount of the Ten-Year Notes set forth opposite their names at a
purchase price of 99.355% of the principal amount thereof plus accrued interest,
if any, from March 27, 1996:
<PAGE>
<TABLE>
<CAPTION>
Principal Amount of
Name Five-Year Notes
---- --------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith $423,500,000
Incorporated
CS First Boston Corporation 423,500,000
Bear, Stearns & Co. Inc. 65,000,000
Deutsche Bank AG London 65,000,000
Goldman, Sachs & Co. 65,000,000
J.P. Morgan Securities Ltd. 65,000,000
Morgan Stanley & Co. International Limited 65,000,000
Swiss Bank Corporation 65,000,000
ABN AMRO Bank N.V. 9,000,000
Banque Paribas 9,000,000
Barclays de Zoete Wedd Limited 9,000,000
Citicorp Securities, Inc. 9,000,000
Nikko Europe Plc 9,000,000
Nomura International plc 9,000,000
UBS Securities LLC 9,000,000
--------------
$1,300,000,000
</TABLE>
<TABLE>
<CAPTION>
Principal Amount of
Name Ten-Year Notes
---- --------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith $423,500,000
Incorporated
CS First Boston Corporation 423,500,000
Bear, Stearns & Co. Inc. 78,000,000
Goldman, Sachs & Co. 78,000,000
Lehman Brothers International (Europe) 78,000,000
J.P. Morgan Securities Ltd. 78,000,000
Morgan Stanley & Co. International Limited 78,000,000
Bankers Trust International PLC 9,000,000
BA Securities, Inc. 9,000,000
Citicorp Securities, Inc. 9,000,000
Donaldson, Lufkin & Jenrette Securities 9,000,000
Corporation
PaineWebber Incorporated 9,000,000
Salomon Brothers Inc 9,000,000
Smith Barney Inc. 9,000,000
--------------
$1,300,000,000
</TABLE>
The Underwriters will pay for the Debt Securities upon delivery thereof to
The Depository Trust Company or its designated custodian at 10:00 a.m. (New York
time) on March 27, 1996, or at such other time, not later than 11:30 a.m. (New
York time) on March 27,
2
<PAGE>
1996, as shall be designated by the Representatives. 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
March 7, 1996 as supplemented by the Prospectus Supplement dated March 22, 1996,
including the following:
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<PAGE>
TERMS OF DEBT SECURITIES:
A. THE FIVE-YEAR NOTES
Title: U.S. $1,300,000,000 6-3/8% Senior Notes due
March 30, 2001
Aggregate Principal Amount: U.S. $1,300,000,000
Initial Offering Price: 100.000%
Purchase Price: 99.650%
Currency of Payment: United States Dollars
Ratings of debt
securities included in the
Registration Statement: A - Standard & Poor's Ratings Services
A2 - Moody's Investors Service
A - Duff and Phelps
Maturity Date: March 30, 2001
Interest Rate: 6-3/8%
Redemption Provisions: As set forth in the Prospectus Supplement
under "Description of the Notes - Redemption
for Tax Purposes".
Interest Payment Dates: March 30 and September 30 commencing
September 30, 1996 (interest accrues from
March 27, 1996).
Regular Record Dates: March 15 and September 15
Form and Denominations: Global Note registered in the name of Cede &
Co., as the nominee of The Depository Trust
Company ("DTC"). Beneficial interests in
such Global Note will be in denominations of
U.S. $1,000 and integral multiples thereof.
Ranking: The Five-Year Notes will constitute a
separate series of senior unsecured debt
obligations of the Company issued under the
Senior Debt Securities Indenture, dated as of
March 7, 1996 (the "Indenture"), by and among
the Company, as issuer, and Citibank, N.A.,
as trustee (the "Trustee") and will rank PARI
PASSU with all other senior unsecured
indebtedness of the Company from time to time
outstanding.
Listing: Luxembourg Stock Exchange. The Company shall
exercise its best efforts to have the Notes
approved for listing on the Luxembourg Stock
Exchange as soon as practicable.
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<PAGE>
B. THE TEN-YEAR NOTES
Title: U.S. $1,300,000,000 6-3/4% Senior Notes due
March 30, 2006
Aggregate Principal Amount: U.S. $1,300,000,000
Initial Offering Price: 99.855%
Purchase Price: 99.355%
Currency of Payment: United States Dollars
Ratings of debt
securities included in the
Registration Statement: A - Standard & Poor's Rating Services
A2 - Moody's Investors Service
A - Duff and Phelps
Maturity Date: March 30, 2006
Interest Rate: 6-3/4%
Redemption Provisions: As set forth in the Prospectus Supplement
under "Description of the Notes - Redemption
for Tax Purposes".
Interest Payment Dates: March 30 and September 30 commencing
September 30, 1996 (interest accrues from
March 27, 1996).
Regular Record Dates: March 15 and September 15
Form and Denominations: Global Note registered in the name of Cede &
Co., as the nominee of DTC. Beneficial
interests in such Global Note will be in
denominations of U.S. $1,000 and integral
multiples thereof.
Ranking: The Ten-Year Notes will constitute a separate
series of senior unsecured debt obligations
of the Company issued under the Indenture and
will rank PARI PASSU with all other senior
unsecured indebtedness of the Company from
time to time outstanding.
Listing: Luxembourg Stock Exchange. The Company shall
exercise its best efforts to have the Notes
approved for listing on the Luxembourg Stock
Exchange as soon as practicable.
C. OTHER GENERAL PROVISIONS
CONDITIONS TO CLOSING. Section 5 of the Standard Provisions (Debt
Securities) shall be amended by adding a new paragraph (i) immediately after
Section 5(h) to read as follows:
(i) LUXEMBOURG STOCK EXCHANGE. The Company shall exercise its best
efforts to have the Notes approved for listing on the Luxembourg Stock
Exchange as soon as practicable.
OFFICERS' CERTIFICATE: Section 5(d) of the Standard Provisions (Debt
Securities) is amended by adding the following as the last sentence of such
Section:
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<PAGE>
As used in this Section 5(d), the term "Prospectus" means the
Prospectus (as defined herein) in the form first used to confirm sales
of the Debt Securities.
COVENANTS OF THE COMPANY. Section 6 of the Standard Provisions (Debt
Securities) is amended by adding the following new paragraph (h):
(h) RESTRICTION ON SALE OF SECURITIES. Between the date of the
Underwriting Agreement and the Closing Date or such other date specified in
such Underwriting Agreement, the Company will not, without the prior
written consent of the Representatives, directly or indirectly, issue,
sell, offer to sell, grant any option for the sale of, or otherwise dispose
of, any of its debt securities, other than issuances of the Company's
commercial paper, debt securities denominated in currencies other than
United States dollars and debt securities with maturities equal to or
greater than 20 years.
TERMINATION: Section 11 of the Standard Provisions (Debt Securities) is
amended as follows:
(a) By deleting the words "United States" in Clause (ii) thereof and
inserting the words "North America, Europe or Asia" in their stead.
(b) Adding the following as the last sentence of such Section: "As used
in this Section 11, the term "Prospectus" means the Prospectus (as
defined herein) in the form first used to confirm sales of the Debt
Securities."
Notices: Notices to the Underwriters shall be directed to the
Representatives c/o CS First Boston Corporation, Park Avenue Plaza, 55 East 52nd
Street, New York, New York 10055 attention of Joseph Fashano and c/o Merrill
Lynch, Pierce, Fenner & Smith Incorporated at World Financial Center, North
Tower, New York, New York 10281-1201, attention of Nancy L. Kennan, Vice
President; and notices to the Company shall be directed to it at 500 South Buena
Vista Street, Burbank, California 91521, attention of Mark D. Rozells, Vice
President and Assistant Treasurer, with copies to the attention of the Company's
Legal Department and to Skadden, Arps, Slate, Meagher & Flom at 300 South Grand
Avenue, Suite 3400, Los Angeles, California 90071, attention of Thomas C.
Janson, Jr.
Except as otherwise noted above, all provisions contained in the document
entitled The Walt Disney Company Underwriting Agreement Standard Provisions
(Debt Securities) dated March 22, 1996, 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.
6
<PAGE>
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CS FIRST BOSTON CORPORATION
acting severally on behalf of themselves and
the Underwriters named herein
BY: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ MATHEW M. PENDO
-------------------------------
Name: Mathew M. Pendo
Title: Director
BY: CS First Boston Corporation
By: /s/ MARK S. MARON
-------------------------------
Name: Mark S. Maron
Title: Managing Director
Accepted:
THE WALT DISNEY COMPANY
By: /s/ MARK D. ROZELLS
-------------------------------
Name: Mark D. Rozells
Title: Vice President & Assistant Treasurer
7
<PAGE>
THE WALT DISNEY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
March 22, 1996
From time to time, The Walt Disney Company, 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 "1933 Act"), and/or a term sheet or an
abbreviated term sheet (each, a "Term Sheet"), pursuant to Rule 434 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), specifically relating to the Debt Securities. 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 at the time the Registration Statement was declared
effective by the Commission. The term Prospectus means the Basic Prospectus
together with the final Prospectus Supplement relating to the offering of the
Debt Securities, each in the form furnished to the Underwriters by the Company
for use in connection with the offering of the Debt Securities, as from time to
time amended or supplemented in accordance with the 1933 Act, except that if any
revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering of the Debt
Securities which differs from the prospectus or prospectus supplement on file at
the Commission (whether or not such revised prospectus or prospectus supplement
is required to be filed by the Company pursuant to Rule 424 under the 1933 Act
Regulations), the term "Prospectus" shall refer to the prospectus and prospectus
supplement, as so revised, from and after the time it is first provided to the
Underwriters for such use; provided, however, that if the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, then all references to the Prospectus
shall be deemed to refer to the final or preliminary prospectus and the Term
Sheet relating to the Debt Securities in the form furnished to the Underwriters
by the Company in reliance upon Rule 434 of the 1933 Act Regulations (in which
case, all references in this Agreement to the date of the Prospectus shall mean
the date of such Term Sheet). The term preliminary prospectus means a
preliminary prospectus supplement specifically relating to the Debt Securities
together with the Basic Prospectus. 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
or deemed to be incorporated by reference therein pursuant to Item 12 of
1
<PAGE>
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 Enterprises, Inc., a Delaware corporation ("Disney"), or Capital
Cities/ABC, Inc. ("Capital Cities") with the Commission under the Securities
Exchange Act of 1934, as amended (the "1934 Act") after the date hereof, and so
incorporated by reference or deemed to be incorporated therein (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 Debt Securities
shall not be deemed to have supplemented the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the 1933
Act. The Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. In
addition, the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act").
(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 and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. At the date of the
Underwriting Agreement and at the Closing Date, the Prospectus and any
amendments and supplements thereto did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company elects to rely upon Rule 434 of
the 1933 Act Regulations, the Company will comply with the requirements of
Rule 434. Notwithstanding the foregoing, 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) 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 termination of the offering of the Debt
Securities, will, when they are filed with the Commission, comply in all
material respects with the requirements
2
<PAGE>
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 Closing Date 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.
(d) This Agreement, the Indenture and the Debt Securities have been duly
authorized by the Company and conform in all material respects to the
descriptions thereof in the Prospectus.
(e) The Indenture (assuming due execution and delivery thereof by the
Trustee) is, and the Debt Securities (when executed by the Company 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, enforceable against the Company 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 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 (when
executed by the Company 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).
(f) The Company is a validly existing corporation in good standing under
the laws of Delaware. The Company 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 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 its subsidiaries considered as one enterprise.
(g) 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 and its
subsidiaries, considered as one enterprise.
(h) The Company is not in violation of its Certificate of Incorporation or
Bylaws. The execution and delivery of this Agreement by the Company, the
issuance and sale of the Debt Securities and the performance by the Company
of its obligations under this
3
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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, (B) any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party or by which it may be bound, or to which any
of the properties or assets of the Company 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 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.
(i) To the best of the Company'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 historical
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
Capital Cities and their respective 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. The selected financial data and the
summary historical financial information of Disney and Capital Cities
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements of Disney and Capital Cities incorporated by reference in the
Registration Statement and the Prospectus. The unaudited pro forma
combined condensed financial statements (Disney/Capital Cities Combined
Company), together with the related notes and any supporting schedules
included in the Registration Statement and the Prospectus, present fairly
the information shown therein and have been compiled on a basis
substantially consistent with the audited financial statements of Disney
and Capital Cities incorporated by reference in the Registration Statement
and the Prospectus; the assumptions on which such unaudited pro forma
combined condensed financial statements have been prepared are reasonable
and such unaudited pro forma combined condensed financial statements have
been prepared, and the pro forma adjustments set forth therein have been
applied, in accordance with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations (including, without limitation,
Regulations S-X promulgated by the Commission), and such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements.
(j) Each of Disney, Capital Cities and Walt Disney World Co., a Delaware
corporation (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 conducted and as described in the Prospectus; and each of the
Significant Subsidiaries is duly qualified as a foreign corporation to
transact business and
4
<PAGE>
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 and its subsidiaries, considered as
one enterprise.
(k) The Company 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.
Any certificate signed by any officer of the Company and delivered to any
Underwriter or to counsel for the Underwriters in connection with the offering
of the Debt Securities shall be deemed a representation and warranty by the
Company to such Underwriter as to the matters covered thereby on the date of
such certificate.
2. PUBLIC OFFERING. The Company is advised by the Representatives 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 Representatives' judgment is advisable. The terms of the public offering of
the Debt Securities have been provided by the Representatives 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
Representatives for the respective accounts of the several Underwriters of the
Debt Securities, registered in such names and in such denominations as the
Representatives 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. The Notes
may be represented by one or more global notes which may be deposited with a
custodian for, and registered in the name of, The Depository Trust Company or
its nominee.
4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the printing and delivery to the Underwriters of this Agreement,
any Underwriting Agreement, any Agreement among Underwriters, the Indenture and
such other documents as may be required in connection with the offering,
purchase, sale and delivery of the Debt Securities, (iii) the preparation,
issuance and delivery of the Debt Securities and any certificates for the Debt
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Debt Securities under state securities
laws or the applicable laws of any foreign jurisdiction in which the Debt
Securities are offered in accordance with the provisions of Section 6(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey and any Legal Investment Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the Prospectus and
any amendments or supplements thereto, (vii) the fees
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charged by nationally recognized statistical rating organizations for the rating
of the Debt Securities, and (viii) the fees and expenses incurred with respect
to the listing of the Debt Securities on any securities exchange.
5. 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 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 has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement and the
Indenture, 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.
(iv) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
to the extent that (x) enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and
(y) the waiver contained in Section 6.12 of the Indenture may be
deemed unenforceable.
(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) The Debt Securities, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters, will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
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(vii) The Registration Statement has become effective under the 1933
Act and the Indenture has been qualified under the 1939 Act, and such
counsel has been advised by the Commission that no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the best of such counsel's knowledge, no proceedings
for that purpose have been instituted or are pending or threatened by
the Commission.
(viii) The execution and delivery of this Agreement and the Indenture
by the Company, the issuance and sale of the Debt Securities and the
fulfillment of this Agreement and the Indenture by the Company 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, (B) any statute, law or
regulation to which the Company or any of its 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 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 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 excluded therefrom or (iii) the Form T-1.
(x) The statements in the Prospectus under the caption
"Description of the Debt Securities," "Description of the Notes" and
"Certain United States Federal Tax Considerations To United States
Aliens", insofar as they purport to summarize certain provisions of
documents specifically referred to therein, are in all material
respects accurate summaries of such provisions and to the extent that
such statements constitute matters of law, summaries of legal matters,
legal proceedings or legal conclusions have been reviewed by such
counsel and are accurate and complete in all material respects.
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 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
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<PAGE>
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 accountants of
the Company, representatives of the Underwriters and counsel for the
Underwriters, at which 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 made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to
such counsel's attention that have led them to believe that the
Registration Statement (excluding the Incorporated Documents) at the time
such Registration Statement became effective, 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 that the Prospectus (excluding the Incorporated Documents) as of the
date of the Underwriting Agreement and as of the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except that such counsel need express no opinion or belief with respect to
(i) the Incorporated Documents, (ii) the financial statements, schedules
and other financial data included or incorporated by reference in, or
excluded from, the Registration Statement or the Prospectus or (iii) the
exhibits to the Registration Statement, including 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 at least a vice president 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 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 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, the Company 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
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<PAGE>
passage of time or otherwise) under, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company is a party or by which it may be bound, or to which any of the
property or assets of the Company 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 no facts have come to such
counsel's attention that have led him to believe that the Registration
Statement (including the Incorporated Documents) at the time such
Registration Statement became effective, 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 that
the Prospectus (including the Incorporated Documents) as of the date of the
Underwriting Agreement and as of the Closing Date contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that such
counsel need express no opinion or belief with respect to the financial
statements, schedules and other financial data included or incorporated by
reference in, or excluded from, 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. 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 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 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.
(e) COMFORT LETTERS. At the time of the execution of the Underwriting
Agreement, the Underwriters shall have received letters from the Company's
and, to the extent that financial information of Capital Cities is included
or incorporated by reference in the Registration Statement, Capital Cities'
independent certified public accountants, dated as
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<PAGE>
of the date of the Underwriting Agreement and in form and substance
reasonably satisfactory to the Underwriters.
(f) BRING-DOWN COMFORT LETTERS. On the Closing Date, the Underwriters
shall have received letters from the Company's and, to the extent that
financial information of Capital Cities is included or incorporated by
reference in the Registration Statement, Capital Cities' independent
certified public accountants dated as of the Closing Date, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section 5, except that the specified date referred
to shall be a date not more than five business days prior to the Closing
Date.
(g) RATINGS. At the Closing Date, the debt securities included in the
Registration Statement shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission
for purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as
specified in the Underwriting Agreement, and the Company shall have
delivered to the Representatives a letter, dated as of such date, from each
such rating organization, or other evidence satisfactory to the
Representatives, confirming that the Debt Securities have such ratings.
(h) 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 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by
the Representatives by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party
to any other party, except that (i) the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters and
(ii) the covenants set forth in Section 6(f) hereof, the indemnity and
contribution agreement set forth in Sections 7, 8, 9 and 10 hereof and the
provisions of Section 18 hereof shall remain in effect.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Representatives
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 supplement relating solely to an offering of
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 Securities), (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
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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. During the period from the date
of the Underwriting Agreement to and including the Closing Date, at or
prior to the filing thereof, the Company will give the Representatives
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 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 a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representatives or counsel to
the Underwriters shall reasonably object, unless, in the judgment of the
Company or its counsel, such amendment or supplement or other document is
necessary to comply with law.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The Company
will deliver to the Underwriters one copy 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) and the preliminary prospectus as the Representatives may
reasonably request. The Company will furnish to the Underwriters as many
copies of the Prospectus (as amended or supplemented) as the
Representatives 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 REGISTRATION STATEMENT AND PROSPECTUS -- MATERIAL
CHANGES. So long as the Underwriters are required to deliver a Prospectus
in connection with sales of 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 Regulations, prompt notice shall be given, and
confirmed in writing, to the Representatives, and the Company will prepare
and file as soon as practicable such amendment or supplement to the
Registration Statement or Prospectus as may be necessary to correct such
misstatement or omission or to make the Registration Statement or the
Prospectus comply with such requirements and the Company will furnish to
the Underwriters, without charge, such number of copies of such amendment
or supplement as the Underwriters may reasonably request. The filing of
any such amendment or supplement shall not constitute a waiver of any of
the conditions set forth in Section (5) hereof or of Section 11 (i).
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(e) COMPLIANCE WITH 1934 ACT. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will 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, the Company's proxy statements pursuant to Section 14(a)
of the 1934 Act.
(f) EARNINGS STATEMENT. The Company will make generally available to its
security holders, as soon as practicable but in any event not later than 15
months after the 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 or (iii) the Company'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 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 in the United States as
the Representatives 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 Representatives 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.
7. INDEMNIFICATION OF THE UNDERWRITERS. The Company 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 or Section 20 of
the 1934 Act as follows:
(a) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in Section 9
hereof, the reasonable fees and disbursements of counsel chosen by the
Underwriters), 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 any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or arises out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in 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 Section 9
hereof, 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
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<PAGE>
statement or omission, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Company; and
(c) against any and all expense whatsoever (including, subject to the
limitations set forth in Section 9 hereof, 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 deliver
such Prospectus, as so amended or supplemented, if required to be delivered
by such Underwriter 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 the 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 Section 8.
8. INDEMNIFICATION OF THE COMPANY. Each Underwriter severally (and not
jointly) agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of Section 7
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives expressly for use
in the Registration Statement or the Prospectus.
9. 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 pursuant to Section 7, such Underwriter or
controlling person shall promptly notify the Company in writing, and the Company
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, (B) the Company 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, and
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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 (in which case, if such
Underwriter or such controlling person notifies the Company in writing that it
selects to employ separate counsel at the expense of the Company, the Company
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 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
Representatives 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,
any of the Company's directors or officers, or any person controlling the
Company, with respect to which indemnity may be sought against any Underwriter
pursuant to Section 8, such Underwriter shall have the rights and duties given
to the Company by this Section 9, and the Company, the Company's directors and
officers and any such controlling person shall have the rights and duties given
to the Underwriters by this Section 9.
10. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Sections 7 and
8 hereof is for any reason held to be unenforceable with respect to the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters 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 on the one hand and the Underwriters on the other hand from the
offering of the 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 9
hereof or pursuant to the last sentence of this Section 10, then the Company and
the Underwriters shall contribute to such aggregate losses, liabilities, claims,
damages and expenses incurred by the Company and the Underwriters, as incurred,
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
on the other hand 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
on the one hand and the Underwriters on the other hand in connection with the
offering of the Debt Securities shall be deemed to be in the same proportion as
the total net proceeds from the sale of the Debt Securities received by the
Company (before deducting expenses) bear to the total commissions or other
compensation or remuneration received by the Underwriters 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 the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the provisions of this Section 10, 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 it 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
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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 10, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. Any party entitled to contribution pursuant to the
first sentence of this Section 10, 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 10, 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 10; PROVIDED,
HOWEVER, that such notice need not be given if such party entitled to
contribution hereunder has previously given notice pursuant to Section 9 hereof
with respect to the same action, suit or proceeding.
11. 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 or Prospectus, any material adverse change in the
consolidated financial condition or earnings of the Company 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 Representatives,
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 has
been suspended (other than pursuant to a request by the Company with respect to
an announcement by the Company 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 and its
subsidiaries, considered as one enterprise), the effect of which is such as to
make it, in the reasonable judgment of the Representatives, 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 or its Significant Subsidiaries as
of the date of the 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 or its Significant Subsidiaries on what is commonly
termed a "watch list" with negative implications.
In the event of any such termination, no party will have any liability to
any other party hereto, except that (i) the covenants set forth in Section 6(f)
hereof, the indemnity and contribution agreement set forth in Sections 7, 8, 9
and 10 hereof and the provisions of Section 18 hereof shall remain in effect and
(ii) if the Underwriting Agreement is terminated by the Underwriters in
accordance with the provisions of Section 11(i) hereof, the Company shall
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reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
12. 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 Representatives 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
Representatives 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 Representative or the Company shall have the right to
postpone the Closing Date but in no event for longer then 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.
13. SELLING AND OTHER RESTRICTIONS. (a) Each Underwriter, on behalf of
itself and each of its affiliates that participates in the initial distribution
of the Debt Securities, severally represents to and agrees with the Company
that:
(i) (a) it has not offered or sold and will not offer or sell any
of the Debt Securities to persons in the United Kingdom (the "U.K.")
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public
in the U.K. within the meaning of the Public Offers of Securities
Regulation 1995; (b) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Debt Securities in, from or
otherwise involving the U.K.; and (c) it has only issued or passed on,
and will only issue or pass on, in the U.K. any document received by
it in connection with the issue of the Debt Securities to a person who
is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisement) (Exemptions) Order 1995 or is a person
to whom the document may otherwise lawfully be issued or passed on.
(ii) it will not offer or sell any Debt Securities directly or
indirectly in Japan or to or for the benefit of any Japanese person or
to others, for re-offering or re-sale directly or indirectly in Japan
or to any Japanese person except under circumstances which will result
in compliance with all applicable laws, regulations and guidelines
promulgated by the relevant governmental and regulatory authorities in
effect at the relevant time. For purposes of this subparagraph (ii),
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"Japanese person" shall mean any person resident in Japan, including
any corporation or other entity organized under the laws of Japan.
(iii) it has not distributed and will not distribute the preliminary
prospectus or the Prospectus in Hong Kong other than to persons whose
business involves the acquisition, disposal or holding of securities,
whether as principal or as agent, unless such Underwriter is a person
permitted to do so under the securities laws of Hong Kong.
(b) In addition to the provisions of subparagraph (a)(i), (ii) and (iii)
of this Section 13, each Underwriter severally represents to and agrees
with the Company that it has not offered, sold or delivered and that it
will not offer, sell or deliver, directly or indirectly, any of the Debt
Securities or distribute the Prospectus, any preliminary prospectus or any
other material relating to the Debt Securities, in or from any jurisdiction
except under circumstances that will, to the best of its knowledge and
belief, result in compliance with the applicable laws and regulations
thereof and which will not impose any obligations on the Company except as
contained in this Agreement.
(c) Without prejudice to the other provisions of this Section 13 and
except for registration under the 1933 Act and compliance with the 1933 Act
Regulations and the qualification of the Debt Securities for offer and sale
under the applicable securities laws of such jurisdictions within the
United States as the Representatives may designate pursuant to Section
6(g), the Company shall not have any responsibility for, and each
Underwriter severally agrees with the Company that each such Underwriter
and its respective affiliates will obtain, any consent, approval or
authorization required by them for the subscription, offer, sale or
delivery by them of any of the Debt Securities under the laws and
regulations in force in any jurisdiction to which they are subject or in or
from which they make such subscription, offer, sale or delivery of any of
the Debt Securities.
14. 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.
15. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Company and the Underwriters 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 Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and 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 Debt Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
16. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling
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person, or by or on behalf of the Company, and shall survive delivery of and
payment for the Debt Securities.
17. 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 were upon the same instrument.
18. 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.
19. 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.
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THE WALT DISNEY COMPANY
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
March 7, 1996
Bear, Stearns & Co. Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Lehman Brothers,
Lehman Brothers Inc.
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Dear Ladies and Gentlemen:
The Walt Disney Company, a Delaware corporation (the "Company"),
confirms its agreement with each of Bear, Stearns & Co. Inc., CS First Boston
Corporation, Goldman, Sachs & Co., J.P. Morgan Securities Inc., Lehman Brothers,
Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co. Incorporated (each an "Agent" and
collectively, the "Agents") with respect to the issue and
<PAGE>
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 March 7, 1996,
between the Company and Citibank, N.A., as trustee (the "Trustee"). As of the
date hereof, the Company has authorized the issuance and sale of up to U.S.
$3,000,000,000 aggregate initial offering price (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 at the time
of issuance) of Notes directly or through the Agents pursuant to the terms of
this Agreement. Such Notes are in addition to other Medium Term Notes of the
Company outstanding at the date hereof. It is understood, however, that the
Company may from time to time authorize the issuance of additional Notes and
that, at the option of the Company, such Notes may be distributed through or
sold to the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchasers, and (as may from time to time be agreed
to by the Company and one or more Agents) to such Agent or Agents as principal
for resale to purchasers.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-62777) for the
registration of debt securities and other securities, including the Notes, under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission and
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement (and any further
registration statements that may be filed by the Company for the purpose of
registering additional Notes and which the Company and the Agents agree is to be
covered by this Agreement) and the prospectus constituting a part thereof,
together with any 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 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively, except that, if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes 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. The term "Prospectus" shall also include any term sheet or
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abbreviated term sheet as these terms are used in Rule 434 of the 1933 Act
Regulations (each a "Terms Sheet"). In addition, 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 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 or prospectus supplement or any Term
Sheets prepared or filed with respect to an offering pursuant to the
Registration Statement 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 represents and
warrants to each Agent as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of Notes (whether 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:
(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.
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(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 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 and any
applicable Terms Agreement have been duly authorized by the Company 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 (when executed by the Company 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, enforceable against the Company 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 (when executed by the
Company 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).
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(v) The Company is a validly existing corporation in good
standing under the laws of its state of incorporation. The Company 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 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 its subsidiaries, considered as one enterprise.
(vi) Each of Disney Enterprises, Inc., Capital Cities/ABC,
Inc. and Walt Disney World Co. (collectively, the "Significant Subsidiaries") is
a validly existing corporation in good standing under the laws of its state of
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 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 and its subsidiaries, considered as one
enterprise.
(vii) 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 its subsidiaries, considered
as one enterprise.
(viii) The Company is not in violation of its Certificate of
Incorporation or Bylaws. The execution and delivery of this Agreement by the
Company, the issuance and sale of the Notes and the performance by the Company
of its 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, (B) subject to the Company's 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 is a party or by which it may be
bound, or to which any of the properties or assets of the
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Company is subject, which breach or default would, singly or in the aggregate,
have a material adverse effect on the consolidated financial condition or
earnings of the Company 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 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 by the Company, the Company by such
acceptance or delivery, as the case may be, shall be deemed to represent and
warrant to the Agents that, both immediately before and immediately after giving
effect to such acceptance or delivery, the Company 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.
(ix) To the best of the Company'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 historical 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 and its subsidiaries at the respective
dates and for the respective periods to which they apply. Such historical
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied, except as set forth in the
Registration Statement and Prospectus. The unaudited pro forma combined
condensed financial statements (Disney/Capital Cities/Combined Company),
together with the related notes and any supporting schedules incorporated by
reference in the Registration Statement and the Prospectus, present fairly the
information shown therein and have been compiled on a basis substantially
consistent with the audited financial statements of Disney and Capital Cities
incorporated by reference in the Registration Statement and the Prospectus; the
assumptions on which such unaudited pro forma combined condensed financial
statements have been prepared are reasonable; and such unaudited pro forma
combined condensed financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
(including, without limitation, Regulations S-X promulgated by the Commission),
and such pro forma
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<PAGE>
adjustments have been properly applied to the historical amounts in the
compilation of such statements.
(x) The Company 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 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 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. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf and to any person, to sell Notes through others
(provided that any other agent will execute an agreement with the Company which
contains substantially the same terms and conditions contained herein), and to
designate and select additional agents to become party to this Agreement, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting offers to purchase the Notes from the Company by others
and (ii) agrees that whenever the Company determines to sell Notes directly to
an Agent as principal for resale to others, it will enter into a Terms Agreement
relating to such sale in accordance with the provisions of Section 2(b) hereof.
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 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 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
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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, as an 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. 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 Company, 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 third 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
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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 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.
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.
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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 debt 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 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
interest 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 debt securities other than the Notes), whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish
the Agents with copies of any such amendment or supplement or other documents
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
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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 1934 ACT; ACCOUNTANTS' CONSENTS. 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 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.
f. EARNINGS STATEMENTS. The Company 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
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prior to the date of such acceptance and (iii) the date of the Company'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 (and, at the option of the Company, Rule 158 of the 1933
Act Regulations). Nothing in this Section 3(f) shall require the Company 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 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. 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 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 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
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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;
(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 Gibson, Dunn
& Crutcher (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 Gibson,
Dunn & Crutcher (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
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(x) Reasonable fees and disbursements in connection with
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
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 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 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 has full corporate power and corporate
authority to enter into and perform its obligations under this
Agreement and the Indenture, 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.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms, except to the extent that (x) enforcement thereof 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 enforcement is considered in a
proceeding in equity or at law) and (y) counsel may
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state that no opinion is expressed with respect to the
enforceability or effect of the waiver contained in Section 6.12 of
the Indenture.
(v) No Governmental Approval 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) The Notes, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the purchasers thereof in accordance with the terms of the
Distribution Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except that (x)
the enforcement thereof 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 enforceability is considered in a proceeding in equity or at
law) and (y) counsel may state that no opinion is expressed with
respect to the enforceability or effect of the waiver contained in
Section 6.12 of the Indenture.
(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.
(viii) The execution and delivery of this Agreement and the
Indenture by the Company, the issuance and sale of the Notes and the
fulfillment of this Agreement and the Indenture by the Company 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, (B) any Applicable Laws or
(C) any judgment, decree or order, known to such counsel, of any
court or Governmental Authority entered in any proceeding to which
the Company was or is now a party or by which it is bound; provided,
that such counsel may state that no
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opinion is expressed as to the securities or Blue Sky laws of the
various jurisdictions in which the Notes are to be offered.
(ix) The Registration Statement, as of its effective date,
and the Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1933 Act and the Rules and Regulations
promulgated thereunder, except that in each case (A) such counsel
need not express an opinion as to (i) the Incorporated Documents,
(ii) the financial statements, schedules and other financial data
included or incorporated by reference therein or excluded therefrom
or (iii) the exhibits to the Registration Statement, including the
Form T-1 and (B) such counsel need not assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statement and the Prospectus except as
specifically set forth in paragraph (x) below.
(x) The statements in the Prospectus under the captions
"Description of the Debt Securities" and "Description of the Notes,"
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 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),(vi) and (viii), 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 rendering the opinion set forth in paragraph (v) and clause (B)
and (C) of paragraph (viii) above, the term "Applicable Laws" shall mean the
Delaware General Corporation Law and those laws, rules and regulations of the
States of California and New York and of the United States of America which, in
our experience, are normally applicable to transactions of the type contemplated
by this Agreement, the term "Governmental Authority" shall mean any California,
New York, Delaware or federal executive, legislative, judicial, administrative
or regulatory body and the term "Governmental Approval" shall mean any consent,
approval, license, authorization or validation of, or filing,
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<PAGE>
recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
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 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, other than to the extent covered by paragraph (x) above, 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 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 therein
or excluded therefrom or (iii) the exhibits to the Registration Statement,
including the Form T-1.
b. OPINION OF COUNSEL EMPLOYED BY 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 at least a Vice President 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 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
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condition or earnings of the Company 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, the Company 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
is a party or by which it may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject.
(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,
schedules and other financial data included or incorporated by
reference therein or excluded therefrom.
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 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
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by reference therein or excluded therefrom or the exhibits to the Registration
Statement, including the Form T-1.
c. OPINION OF AGENTS' COUNSEL. On the date hereof, the Agents
shall have received an opinion from Gibson, Dunn & Crutcher, counsel to the
Agents, dated as of the date hereof and in form and substance satisfactory to
the Agents.
d. OFFICER'S CERTIFICATE. 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, (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
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 date hereof and at each Settlement
Date with respect to any Terms Agreement, there has not been, since the date of
the most recent consolidated financial statements 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.
e. COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from the Company's independent certified public accountants,
dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements and supporting schedule(s) of the Company and its
subsidiaries audited and reported upon by them and incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
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1933 Act and the 1933 Act Regulations with respect to registration
statements on Form S-3 and the 1934 Act and the published rules and
regulations thereunder.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim consolidated financial statements of the Company, a reading
of the minute books of the Company since the end of the most recent
fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company
and certain of its subsidiaries responsible for financial and
accounting matters with respect to the latest available interim
unaudited consolidated financial statements of the Company, and such
other inquiries and procedures as may be specified in such letter,
and on the basis of such inquiries and procedures nothing came to
their attention that caused them to believe that: (A) the latest
available unaudited consolidated financial statements of the Company
were not fairly presented in conformity with generally accepted
accounting principles in the United States applied on a basis
substantially consistent with that of the audited financial
statements incorporated by reference therein, or (B) at a specified
date not more than five days prior to the date of such letter, there
was any change in the outstanding capital stock of the Company or
any increase in consolidated long-term debt of the Company or any
decrease in the stockholders' equity of the Company, in each case as
compared with the amounts shown on the most recent consolidated
balance sheet of the Company incorporated by reference in the
Registration Statement and Prospectus or, during the period from the
date of such balance sheet to a specified date not more than five
days prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues or net income of the Company, except in each
such case as set forth in or contemplated by the Registration
Statement and Prospectus or except for such exceptions enumerated in
such letter as shall have been agreed to by the Agents and the
Company.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain
financial information which is included or incorporated by reference
in the Registration Statement and Prospectus, which
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would normally be covered under auditing procedures and which are
specified by the Agents, and have found such financial information
to be in agreement with the relevant accounting, financial and other
records of the Company identified in such letter.
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 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 Notes are
authorized for sale pursuant to this Agreement and unless the sale of 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
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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 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 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
22
<PAGE>
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; PROVIDED, HOWEVER,
that (i) in the case of any such amendment or supplement that relates to 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 Notes which are to be indexed or linked to any foreign currency, composite
currency, commodity, equity index or similar index and (ii) if reasonably
requested by the Agents, the counsel delivering such opinion shall expand the
opinion rendered pursuant to Section 5(a)(i) to include any other subsidiary of
the Company that, as a result of actions or events occurring after the date of
this Agreement is of substantially similar materiality to the Company, on a
consolidated basis, as each of the Significant Subsidiaries are as of the date
of this Agreement. 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 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
23
<PAGE>
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.
SECTION 7. INDEMNIFICATION
a. INDEMNIFICATION OF THE AGENTS. The Company 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
(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 threatened, or any
claim whatsoever, based upon any such untrue
24
<PAGE>
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. Each Agent agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 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 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 pursuant to this Section 7, such Agent or
controlling person shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including 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
25
<PAGE>
the Company, (B) the Company 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, 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 (in which case, if such Agent or such controlling person notifies
the Company in writing that it elects to employ separate counsel at the expense
of the Company, the Company 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 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, any of the Company's directors or officers, or any person
controlling the Company, 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 by subsection (c)(i) of this Section 7, and the
Company, the Company'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
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 and each
Agent 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 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 and
each Agent shall contribute to such aggregate losses, liabilities, claims,
damages and expenses
26
<PAGE>
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 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 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 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 aggregate
principal amount of the Notes that are the subject of such proceeding.
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 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, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
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
27
<PAGE>
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 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 as defined in Section 15 of the 1933 Act of any Agent, or
by or on behalf of the Company, 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
such termination to each other party hereto or (y) at any time upon notice to
the Company if the Company 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 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 has been suspended
(other than pursuant to a request by the Company with respect to an announcement
by the Company 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
28
<PAGE>
financial condition or earnings of the Company 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.
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:
29
<PAGE>
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Tim McCann
Associate Director Capital Markets, 4th Floor
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
35th Floor
New York, New York 10055
Attention: Joseph D. Fashano
New Issue Processing
Goldman, Sachs & Co.
85 Broad Street
18th Floor
New York, New York 10004
Attention: Registration Department
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: MTN Desk, 3rd Floor
Lehman Brothers,
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: MTN Department, 9th Floor
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
and
30
<PAGE>
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10038
Attention: Michael Fusco
Financing Manager
Financing Services Group
with a copy to:
1251 Avenue of the Americas
39th Floor
New York, New York 10020
Attention: Manager, Credit Department
Notices to the Company shall be directed to it at:
500 South Buena Vista Street
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 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 LAWS
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.
31
<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,
THE WALT DISNEY COMPANY
By /s/ RICHARD D. NANULA
---------------------------------------------
Name: Richard D. Nanula
Title: Senior Executive Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BEAR, STEARNS & CO. INC.
By /s/ TIMOTHY A. O'NEILL
-------------------------
Name: Timothy A. O'Neill
Title: Senior Managing Director
CS FIRST BOSTON CORPORATION
By /s/ MARTHA D. BAILEY
-------------------------
Name: Martha D. Bailey
Title: Vice President
GOLDMAN, SACHS & CO.
By /s/ GOLDMAN, SACHS & CO.
--------------------------
Name:
Title:
<PAGE>
J.P. MORGAN SECURITIES INC.
By /s/ RAYMOND SCHMITT
-------------------------
Name: Raymond Schmitt
Title: Vice President
LEHMAN BROTHERS INC.
By /s/
-------------------------
Name:
Title:
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ SCOTT PRIMROSE
-------------------------
Name: Scott Primrose
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By /s/
-------------------------
Name:
Title:
<PAGE>
EXHIBIT A
Commission
TERM(1) RATE(2)
- ------- -------
More than 9 months but less than 1 year...................0.125%
From 1 year but less than 18 months.......................0.150
From 18 months but less than 2 years......................0.200
From 2 years but less than 3 years........................0.250
From 3 years but less than 4 years........................0.350
From 4 years but less than 5 years........................0.450
From 5 years but less than 6 years........................0.500
From 6 years but less than 7 years........................0.550
From 7 years but less than 10 years.......................0.600
From 10 years but less than 15 years......................0.625
From 15 years but less than 20 years......................0.700
From 20 years but less than 30 years......................0.750
From 30 years...................To be determined by the Company
and the relevant Agent(s)
- --------------------------
(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.
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.
<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:
<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(3) 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).
- ---------------------
(3) The following generally will not be required in connection with a sale of
less than $50,000,000 aggregate principal amount of Notes.
<PAGE>
Appendix I
FORM OF OFFICER'S CERTIFICATE
THE WALT DISNEY COMPANY
I, [Name], [Title] of The Walt Disney Company, a Delaware corporation
(the "Company"), pursuant to Section 5(d) of the Distribution Agreement, dated
________, 1996 (the "Distribution Agreement"), between the Company and each of
(i) Bear, Stearns & Co. Inc., (ii) CS First Boston Corporation, (iii) Goldman,
Sachs & Co., (iv) J.P. Morgan Securities Inc., (v) Lehman Brothers, Lehman
Brothers Inc., (vi) Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and (vii) Morgan Stanley & Co. Incorporated (collectively, the
"Agents"), relating to the offering from time to time by the Company directly or
through the Agents of up to $3,000,000,000 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 its subsidiaries, considered as one enterprise.
2. The representations and warranties of the Company 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 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.
<PAGE>
IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of
_________, 1996.
By:__________________________
Name:
Title:
<PAGE>
Appendix II
FORM OF RELIANCE LETTER OF COUNSEL
__________, 19__
Bear, Stearns & Co. Inc.
CS First Boston Corporation
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Lehman Brothers,
Lehman Brothers Inc.
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Re: THE WALT DISNEY COMPANY MEDIUM-TERM NOTES
-----------------------------------------
Dear Sirs:
[We] [I] have delivered an opinion to you dated _________, 19__ as
counsel to The Walt Disney Company (the "Company"), pursuant to Section
[5(a)][5(b)] of the Distribution Agreement, dated as of ___________, 1996 (the
"Distribution Agreement"), between the Company and Bear, Stearns & Co. Inc., CS
First Boston Corporation, Goldman, Sachs & Co., J.P. Morgan Securities Inc.,
Lehman Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. Incorporated. 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,
<PAGE>
THE WALT DISNEY COMPANY
MEDIUM TERM NOTES
ADMINISTRATIVE PROCEDURES
_______________
March 7, 1996
The administrative procedures and specific terms of the offering of
Medium-Term Notes (the "Notes") on a continuing basis by The Walt Disney Company
(the "Issuer") pursuant to the Distribution Agreement, dated March 7, 1996 (as
amended, modified or supplemented from time to time, the "Distribution
Agreement"), between the Issuer and each of Bear, Stearns & Co. Inc., CS First
Boston Corporation, Goldman, Sachs & Co., J.P. Morgan Securities Inc., Lehman
Brothers, Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co. Incorporated (each an
"Agent" and collectively, the "Agents") are explained below. In the
Distribution Agreement, the Agents have agreed to act as agents of the Issuer to
solicit offers to purchase the Notes. Each Agent, as principal, may purchase
Notes for its own account pursuant to the terms and settlement details of a
terms agreement entered into between the Issuer and such Agent, as contemplated
by the Distribution Agreement. In the Distribution Agreement, the Issuer
reserves the right to sell Notes directly on its own behalf and to or through
others.
Each Note will be issued under an indenture between the Issuer and
Citibank, N.A., as trustee (the "Trustee"), dated as of March 7, 1996 (the
"Indenture"), relating to senior debt securities of the Issuer. Notes will bear
interest at either fixed rates ("Fixed Rate Notes") or floating rates ("Floating
Rate Notes"). Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Owners of beneficial
interests in a Global Security will be entitled to physical delivery of
Certificated Notes equal in principal amount to their respective beneficial
interests only under certain limited circumstances.
The Trustee will act as Paying Agent for the payment of principal of
and interest on the Notes and will perform, as Paying Agent, unless otherwise
specified in the Notes, the Indenture or herein, the other duties specified
herein. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof. Any
administrative responsibilities, document control and record-keeping functions
to be performed by the Issuer will be performed by its Treasury Department. To
the extent that the procedures set forth herein conflict with any provision of
the Notes (which, in the case of Book-Entry Notes shall be the related Global
Security), the Indenture or the Distribution Agreement, the relevant provisions
of
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the Notes, the Indenture or the Distribution Agreement shall be controlling.
Unless otherwise defined herein, terms defined in the Indenture, the Officers'
Certificate establishing the Notes pursuant to Section 2.3(a) of the Indenture
or the Notes shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Issuer and the Trustee to DTC dated March 1,1996, and a Medium-Term
Note Certificate Agreement between the Trustee and DTC, dated October 31, 1988,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
ISSUANCE: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Issuer will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$200,000,000 principal amount of all such Notes that
have the same Stated Maturity and Final Maturity,
Earliest Redemption Date, Redemption Price and other
redemption provisions, if any, Interest Payment Dates,
Regular Record Dates, Interest Payment Period, original
issue discount, if any, and, additionally, in the case
of Fixed Rate Notes, interest rate and, in the case of
Floating Rate Notes, Initial Interest Rate, Base Rate or
Rates, Index Maturity, Interest Reset Period, Interest
Reset Dates, Spread or Spread Multiplier, if any,
Minimum Interest Rate, if any, and Maximum Interest
Rate, if any (collectively, the "Terms"). Each Global
Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security
will bear interest from the later of the Original Issue
Date specified therein or from the most recent Interest
Payment Date with respect to such Global Security (or
Predecessor Security) to which interest has been paid or
duly provided for (such later date being herein referred
to as a "Global Interest Accrual Date"). Book-Entry
Notes may only be denominated and payable in U.S.
dollars. No Global Security will represent any
Certificated Note.
IDENTIFICATION NUMBERS: The Issuer has arranged with the CUSIP Service Bureau
of Standard & Poor's
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Corporation (the "CUSIP Service Bureau") for the
reservation of a series of CUSIP numbers (including
tranche numbers), which series consists of approximately
900 CUSIP numbers (of which 900 remained unassigned as
of the date hereof) and relates to Global Securities
representing the Book-Entry Notes. The Issuer has
obtained from the CUSIP Service Bureau a written list of
such series of reserved CUSIP numbers and has delivered
to the Trustee and DTC such written list of such CUSIP
numbers. The Trustee will assign CUSIP numbers to
Global Securities as described under Settlement
Procedure "B" below. DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Trustee has assigned to Global Securities. At any time
when fewer than 100 of the reserved CUSIP numbers of a
series remain unassigned to Global Securities, the
Trustee, if it deems necessary, will reserve additional
CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Trustee shall deliver a
list of such additional CUSIP numbers to the Issuer and
DTC.
REGISTRATION: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the register of
Securities maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC (with
respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record
in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records
of such Participants or through the separate records of
such Participants and one or more indirect participants
in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of
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beneficial transferors and transferees of such Note.
EXCHANGES: At the request of the Issuer, the Trustee shall deliver
to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the CUSIP
numbers of two or more Outstanding Global Securities
that represent Book-Entry Notes having the same Terms
and for which interest has been paid to the same date,
(ii) a date, occurring at least 30 days after such
written notice is delivered and at least 30 days before
the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Issuer, to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating that,
as of such exchange date, the CUSIP numbers of the
Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will
exchange such Global Securities for a single Global
Security bearing the new CUSIP number, and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau customary
procedures, be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Securities
to be exchanged exceed $200,000,000 in aggregate
principal amount, one Global Security will be
authenticated and issued to represent each $200,000,000
of principal amount of the exchanged Global Securities
and an additional Global Security will be authenticated
and issued to represent any remaining principal amount
of such Global Securities (see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature on a date nine months
or more after the settlement date for such Note.
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NOTICE OF REDEMPTION
DATES: In the case of a full redemption of all Book-Entry Notes
represented by a single Global Security, the Trustee
will notify DTC, not more than 60 but not less than 30
days prior to the Redemption Date with respect to such
Global Security, of the CUSIP number of such Global
Security, the Redemption Date and the Redemption Price.
In the case of a redemption of less than all Book-Entry
Notes represented by a single Global Security, the
Trustee will notify DTC not more than 2 Business Days
before 60 days, but not less than 2 Business Days before
30 days, prior to the Redemption Date with respect to
such Global Security, of the CUSIP number of such Global
Security, the Redemption Date and the Redemption Price.
DENOMINATIONS: Book-Entry Notes will be sold in denominations of $1,000
and any amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be issued in
denominations of $1,000 and any amount in excess thereof
that is an integral multiple of $1,000, up to a maximum
denomination of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each $200,000,000
principal amount of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
INTEREST: GENERAL. Interest on each Book-Entry Note will accrue
from the Global Interest Accrual Date with respect to
the Global Security representing such Note and will be
paid on the Interest Payment Dates of the Global
Security representing such Book-Entry Note. In the case
of a Global Security originally issued between a Regular
Record Date and the related Interest Payment Date or on
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date immediately
following the next Regular Record Date. Each payment of
interest on a Global Security will include interest
accrued to but excluding the Interest
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Payment Date or Maturity. See "Calculation of Interest"
below. Interest payable at the Maturity of a Book-Entry
Note will be payable to the Person to whom the principal
of such Note is payable. Standard & Poor's Corporation
will use the information received in the pending deposit
message described under Settlement Procedure "C" below
in order to include the amount of any interest payable
and certain other information regarding any Global
Security in the appropriate weekly supplement to the
Corporate Registered Bond Interest Record published by
Standard & Poor's Corporation.
REGULAR RECORD DATES. Except as otherwise provided
with respect to any Book-Entry Note as specified in the
related Global Security, the Regular Record Date with
respect to Fixed Rate Book-Entry Notes shall be the
January 15 or July 15, as the case may be, next
preceding the applicable Interest Payment Date. Except
as otherwise provided with respect to any Book-Entry
Note as specified in the related Global Security, the
Regular Record Date with respect to any Interest Payment
Date for Floating Rate Book-Entry Notes shall be the
fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Except as otherwise
provided with respect to any Book-Entry Note as
specified in the related Global Security, interest
payments on Fixed Rate Book-Entry Notes will be made
semiannually on February 1 and August 1 of each year and
at Maturity, subject to the exceptions specified in
"Payments of Principal and Interest" below.
FLOATING RATE BOOK-ENTRY NOTES. Except as otherwise
provided with respect to any Book-Entry Note as
specified in the related Global Security, interest
payments will be made on Floating Rate Book-Entry Notes
monthly, quarterly, semiannually or annually of each
year, as specified in the related Global Security, and
at Stated Maturity. Except as otherwise provided with
respect to any Book-Entry Note as specified in the
related Global Security, subject to the exceptions
specified in "Payments of Principal and Interest" below,
interest will be payable, in the case of Floating Rate
Book-Entry Notes which pay interest (i)
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<PAGE>
monthly, on the third Wednesday of each month; (ii)
quarterly, on the third Wednesday of each March, June,
September and December of each year, (iii) semiannually,
on the third Wednesday of each of the two months
specified in the Global Security representing the
applicable Book-Entry Note; and (iv) annually, on the
third Wednesday of the month specified in the Global
Security representing the applicable Book-Entry Note.
NOTICE OF INTEREST PAYMENT AND REGULAR RECORD DATES.
On the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Issuer and DTC a written list of Regular Record Dates
and Interest Payment Dates (to the extent then
determinable by the Trustee) that will occur with
respect to each Global Security during the six-month
period beginning on such first Business Day. Promptly
after each Interest Determination Date for Floating Rate
Notes, the calculation agent (the "Calculation Agent")
will notify Standard & Poor's Corporation of the
interest rates determined on such Interest Determination
Date.
CALCULATION OF
INTEREST: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined as set
forth in the Global Security representing the applicable
Floating Rate Book-Entry Notes. Interest will be
calculated in the case of (a) Commercial Paper Rate
Notes, LIBOR Notes, CD Rate Notes, Federal Funds Rate
Notes and Prime Rate Notes, on the basis of the actual
number of days in the interest period and a 360-day
year; and (b) Treasury Rate Notes and CMT Rate Notes, on
the basis of the actual number of days in the interest
period and the actual number of days in the year.
PAYMENTS OF PRINCIPAL
AND INTEREST PAYMENTS OF INTEREST ONLY. Promptly after each
Regular Record Date, the Trustee will deliver to the
Issuer and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each Global
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Security on the following Interest Payment Date (other
than an Interest Payment Date coinciding with Stated
Maturity) and the total of such amounts. DTC will check
the amount payable on each Global Security on such
Interest Payment Date as shown in the appropriate weekly
supplements to the Corporate Registered Bond Interest
Record published by Standard & Poor's Corporation. On
such Interest Payment Date, the Issuer will pay to the
Trustee the total amount of interest due on such
Interest Payment Date (other than at Stated Maturity),
and the Trustee will pay such amount to DTC at the times
and in the manner set forth below under "Manner of
Payment."
If any Interest Payment Date for a Fixed Rate Book-Entry
Note is scheduled to occur on a day that is not a
Business Day with respect to such Fixed Rate Book-Entry
Note, the payment due on such Interest Payment Date will
be made on the following day that is a Business Day with
respect to such Fixed Rate Book-Entry Note, and no
interest shall accrue on the amount payable on such
Interest Payment Date for the period from and after such
Interest Payment Date to such following day that is a
Business Day.
If any Interest Payment Date for a Floating Rate
Book-Entry Note is scheduled to occur on a day that is
not a Business Day with respect to such Floating Rate
Book-Entry Note, such interest Payment Date will be the
following day that is a Business Day with respect to
such Floating Rate Book-Entry Note, except that in the
case of a Floating Rate Book-Entry Note that is a LIBOR
Note (or a Floating Rate Book-Entry Note for which LIBOR
is the applicable Base Rate), if such Business Day is in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding day that
is a Business Day.
PAYMENTS AT MATURITY. On or about the first Business
Day of each month, the Trustee will deliver to the
Issuer and DTC a written list of principal and interest
to be paid on each Global Security maturing either at
Stated Maturity or on a Redemption Date occurring in the
following month (to the extent then determinable by the
Trustee). The Issuer, the Trustee and DTC will confirm
the amounts of such principal and interest payments with
8
<PAGE>
respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global
Security. The Issuer will pay to Citibank, N.A., as the
Paying Agent, the principal amount of such Global
Security, together with interest due at such Maturity.
Citibank, N.A. will pay such amounts to DTC at the times
and in the manner set forth under "Manner of Payment"
below. If any Maturity of a Global Security
representing Book-Entry Notes is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such
Maturity. Promptly after payment to DTC of the
principal and interest due at the Stated Maturity of
such Global Security, the Trustee will cancel such
Global Security in accordance with the terms of the
Indenture, deliver to the Issuer an appropriate debit
advice and a certificate of destruction relating to all
such cancelled Global Securities. On the first Business
Day of each month, the Trustee will deliver to the
Issuer by facsimile transmission a written statement,
indicating the total principal amount of Outstanding
Global Securities for which it serves as trustee as of
the immediately preceding Business Day.
MANNER OF PAYMENT. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at Maturity shall be debited from an
account of the Issuer maintained at the Trustee with
funds available for immediate use in the amount required
for such payment. The Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in a
form previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each
payment of interest and principal due on a Global
Security on such date. On each Interest Payment Date,
interest payments shall be made to DTC in same day funds
in accordance with existing arrangements between the
Trustee and DTC. Thereafter on each such date, DTC will
pay, in accordance with its SDFS operating procedures
then in effect, such amounts in funds available for
immediate use to the respective Participants in whose
names the Book-Entry Notes represented by such Global
Securities are
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recorded in the book-entry system maintained by DTC.
Neither the Issuer (either as Issuer or as Paying Agent)
nor the Trustee shall have any responsibility or
liability for the payment by DTC to such Participants of
the principal of and interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC
or other Person responsible for forwarding payments and
materials directly to the beneficial owner of such Note.
ACCEPTANCE AND
REJECTION OF OFFERS: The Issuer has the sole right to accept offers to
purchase Book-Entry Notes and may reject any such offer
in whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase
Book-Entry Notes received by it in whole or in part.
Each Agent will advise the Issuer promptly by telephone
or by facsimile transmission of all offers to purchase
Book-Entry Notes received by such Agent, other than
those rejected by it.
SETTLEMENT: The receipt by the Issuer of immediately available funds
in payment for a Book-Entry Note and the authentication
and issuance of the Global Security representing such
Note shall constitute "settlement" with respect to such
Note. Each offer accepted by the Issuer will be settled
on the third Business Day (or, if acceptance by the
Issuer occurs after 4:30 p.m., New York time, on the
fourth Business Day) following acceptance of such offer
pursuant to the timetable for settlement set forth
below, unless the Issuer and the purchaser agree to
settlement on another day which shall be no earlier than
the Business Day following acceptance of such offer.
SETTLEMENT PROCEDURES: In the event of a purchase of Book-Entry Notes by one or
more of the Agents, as principal, appropriate settlement
details, if different from those set forth below, will
be set forth in an applicable Terms Agreement to be
entered into between such Agent or Agents and the Issuer
pursuant to the Distribution Agreement. Settlement
Procedures with regard to each Book-Entry
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Note sold by the Issuer through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Issuer by facsimile
transmission or orally (if confirmed within 24
hours by written telecommunication) of the
following settlement information:
1. Principal amount.
2. Stated Maturity.
3. If such Note is a Fixed Rate Note, the
interest rate. If such Note is a Floating
Rate Note, the following:
a. Base Rate or Base Rates;
b. Initial Interest Rate;
c. Spread or Spread Multiplier, if any;
d. Interest Reset Dates;
e. Interest Reset Period;
f. Interest Payment Dates;
g. Index Maturity;
h. Interest Payment Period;
i. Calculation Agent (if other than
Citibank, N.A.);
j. Maximum Interest Rate, if any;
k. Minimum Interest Rate, if any;
l. Interest Determination Dates; and
m. Index Currency, if applicable.
4. Earliest Redemption Date, Redemption Price
and other redemption provisions, if any.
5. Settlement date.
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6. Original Issue Price.
7. Original issue discount, if any.
8. Agent's commission, determined as provided in
Section 2 of the Distribution Agreement
between the Issuer and such Agent.
9. Additional terms or provisions of such Note,
if any.
10. Net Proceeds to the Issuer.
11. Commission.
12. Discount.
13. Initial Maturity Date (for Renewable Notes).
14. Final Maturity Date (for Renewable Notes).
B. The Issuer will advise the Trustee by telephone
(confirmed in writing signed by an authorized
person at any time on the same date) or facsimile
transmission signed by an authorized person of the
information set forth in Settlement Procedure "A"
above and the name of such Agent.
C. The Trustee will assign a CUSIP number to the
Global Security representing such Note. The
Trustee will notify the Issuer and the Agent of
such CUSIP number by telephone as soon as
practicable.
D. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, such Agent, and Standard & Poor's
Corporation.
1. The information set forth in Settlement
Procedure "A" above.
2. Numbers of the participant accounts
maintained by DTC on behalf of the Trustee
and the Agent.
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3. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
4. Initial Interest Payment Date for such Note,
Regular Record Date and amount of interest
payable on such Interest Payment Date.
5. Interest Payment Period.
6. CUSIP number of the Global Security
representing such Note.
7. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
E. The Issuer will deliver to the Trustee a
pre-printed Global Security to represent such
Note, in a form that has been approved by the
Issuer, the Agents and the Trustee.
F. The Trustee will complete and authenticate the
Global Security representing such Note.
G. DTC will credit such Note to the Trustee's
participant account at DTC.
H. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such
Note to such Agent's participant account and (ii)
debit such Agent's settlement account and credit
the Trustee's settlement account for an amount
equal to the price of such Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty by
the Trustee to DTC that (i) the Global Security
representing such Book-Entry Note has been issued
and authenticated and (ii) the Trustee is holding
such Global Security pursuant to the Medium-Term
Note Certificate Agreement between the Trustee and
DTC.
I. Such Agent will enter an SDFS deliver order
through DTC's Participant
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Terminal System instructing DTC (i) to debit such
Note to such Agent's participant account and
credit such Note to the participant accounts of
the Participants with respect to such Note and
(ii) to debit the settlement accounts of such
Participants and credit the settlement account of
such Agent for any amount equal to the price of
such Note.
J. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" above will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
K. The Trustee will credit to an account of the
Issuer maintained at the Trustee funds available
for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure
"G" above.
L. The Trustee will retain the Global Security
representing such Note and will send a photocopy
thereof to the Issuer by first-class mail. The
Trustee will send to the Issuer, at the request of
the Issuer, a written statement setting forth (i)
the principal amount of Notes Outstanding under
the Indenture as of the date of such report, (ii)
a brief description of any sales of which the
Issuer has advised the Trustee but which have not
yet been settled and (iii) a description of
issuances and retirements of, payment on and other
activity relating to the Notes during the related
month.
M. Such Agent will confirm the purchase of such Note
to the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institution delivery system or by mailing a
written confirmation to such purchaser.
SETTLEMENT PROCEDURES
TIMETABLE: For orders of Book-Entry Notes solicited by an Agent, as
agent, and accepted by the Issuer for settlement on the
first Business
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Day after the sale date, Settlement Procedure "A"
through "L" above shall be completed as soon as possible
but not later than the respective times (New York City
time) set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A . . . . . . . 11:00 a.m. on the sale date
B . . . . . . . 12:00 noon on the sale date
C . . . . . . . 2:00 p.m. on the sale date
D . . . . . . . 3:00 p.m. on the sale date
E . . . . . . . 9:00 a.m. on settlement date
F . . . . . . . 10:00 a.m. on settlement date
G-I . . . . . . 2:00 p.m. on settlement date
J-M . . . . . . 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedure "A" shall be
completed as soon as practicable but no later than 11:00
a.m. on the first Business Day after the sale date and
Settlement Procedures "B" and "C" shall be completed as
soon as practicable but no later than 12:00 noon and
2:00 p.m., respectively, on the first Business Day after
the sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no later than
12:00 noon and 2:00 p.m., respectively, on the second
Business Day before the settlement date. Settlement
Procedures "D" through "L" shall be completed as soon as
possible thereafter but not later than the respective
times (New York City time) set forth in the preceding
table, except that Settlement Procedures "I" through "L"
are subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
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FAILURE TO SETTLE: If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "G," the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that
the Trustee's participant account contains a principal
amount of the Global Security representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Security, the Trustee will mark such Global
Security "cancelled," make appropriate entries in the
Trustee's records and send such cancelled Global
Security to the Issuer. The CUSIP number assigned to
such Global Security shall, in accordance with CUSIP
Service Bureau customary procedures, be cancelled and
not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the Trustee will exchange the Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes for which such withdrawal
message has been processed and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the applicable Participants with respect
to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants and, in
turn, the Agent for such Note, may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "H" and "G," respectively. Thereafter, the
Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
If such failure shall have occurred for any reason other
than default by the applicable Agent in the performance
of its obligations hereunder or under the Distribution
16
<PAGE>
Agreement, the Issuer will pay to such Agent an amount
equal to the interest earned by the Issuer with respect
to such funds during the period when the funds were
credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
such actions as it deems appropriate in accordance with
its SDFS operating procedures then in effect in order to
reverse the orders entered into DTC's Participant
Terminal System pursuant to Settlement Procedures "H"
and "G," respectively. In the event of a failure to
settle with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Security, the Trustee will provide, in accordance with
Settlement Procedures "D" and "E," for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
PROCEDURE FOR POSTINGS: The Issuer will periodically contact one or more Agents
for recommended interest rates, coupons or spreads
("postings") with respect to Notes being offered. When
the Issuer has determined or changed its postings with
respect to Notes being offered, it will promptly advise
the Agents. At such times as the Issuer is not posting,
the Agents will not solicit firm offers but may record
"indications of interest" only.
PRICING SUPPLEMENTS: Within five Business Days after any sale of Notes, the
Issuer will file or transmit for filing with the
Securities and Exchange Commission (the "Commission"),
in compliance with Rule 424(b)(3) of the rules and
regulations of the Commission promulgated under the
Securities Act of 1933, as amended, a copy of a pricing
supplement to the Prospectus (as defined in the
Distribution Agreement) relating to such Notes that
reflects the applicable interest rates and other terms
(the "Pricing Supplement") and will deliver a copy of
such Pricing Supplement to each of the Agents and to the
Trustee.
SUSPENSION OF
SOLICITATION,
AMENDMENT OR
17
<PAGE>
SUPPLEMENT: The Issuer may instruct the Agents to suspend
solicitation of offers to purchase Book-Entry Notes at
any time. Upon receipt of such instructions, each Agent
will as soon as possible suspend such solicitations
until such time as it has been advised by the Issuer
that such solicitations may be resumed. The Issuer
will, consistent with its obligations under the
Distribution Agreement, promptly advise each Agent and
the Trustee whether orders outstanding at the time such
Agent suspends solicitation may be settled and whether
copies of the Prospectus, as in effect at the time of
the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Issuer will have the
sole responsibility for such decision and for any
arrangements that may be made in the event that the
Issuer determines that such orders may not be settled or
that copies of such Prospectus and Pricing Supplement
may not be so delivered.
DELIVERY OF PROSPECTUS: A copy of the most recent Prospectus and of the
applicable Pricing Supplement, if any, must be provided
to a purchaser by the applicable Agent prior to or at
the time of the earlier of (a) the written confirmation
of a sale sent to a purchaser of Book-Entry Notes or his
Agent, and (b) the date of settlement of any such
Book-Entry Notes (see "Settlement Procedures").
ADVERTISING COSTS: The Issuer will determine with the Agents the amount and
nature of advertising that may be appropriate in
offering the Notes. Advertising expenses approved in
writing by the Issuer in connection with the
solicitation of purchases of the Notes from the Issuer
will be paid by the Issuer.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the
Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear interest from the later of
the Original Issue Date specified therein or from the
most recent Interest Payment Date with respect to such
Certificated Note (or Predecessor Security) to which
interest has been paid or
18
<PAGE>
duly provided for (such later date being herein referred
to as a "Certificated Interest Accrual Date").
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFERS AND
EXCHANGES: A Certificated Note may be presented for transfer or
exchange at the Corporate Trust office of the Trustee.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
MATURITIES: Each Certificated Note will mature on a date nine months
or more from the settlement date for such Note.
DENOMINATIONS: Certificated Notes will be issued in denominations of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000.
INTEREST: GENERAL. Interest on each Certificated Note will
accrue from the Certificated Interest Accrual Date of
such Note. In the case of a Certificated Note
originally issued between a Regular Record Date and the
related Interest Payment Date or on an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next Regular Record
Date. Each payment of interest on a Certificated Note
will include interest accrued to but excluding the
Interest Payment Date or Maturity. See "Calculation of
Interest" below. Interest will be payable to the person
in whose name a Certificated Note is registered on the
register of Securities at the close of business on the
Regular Record Date next preceding the applicable
Interest Payment Date; PROVIDED, HOWEVER, interest
payable at Maturity will be payable to the Person to
whom principal of such Certificated Note is payable.
REGULAR RECORD DATE. The Regular Record Date with
respect to Fixed Rate Certificated Notes shall be the
January 15 or July 15, as the case may be, next
preceding the applicable Interest Payment Date. The
Regular Record Date with respect to any Interest Payment
Date for Floating Rate Certificated Notes
19
<PAGE>
shall be the fifteenth day (whether or not a Business
Day) next preceding such Interest Payment Date.
FIXED RATE CERTIFICATED NOTES. Interest payments on
Fixed Rate Certificated Notes will be made semiannually
on February 1 and August 1 of each year and at Maturity,
subject to the exceptions specified in "Payments of
Principal and Interest" below.
FLOATING RATE CERTIFICATED NOTES. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semiannually or annually of each
year, as specified in the related Note, and at maturity.
Subject to the exceptions specified in "Payments of
Principal and Interest" below, interest will be payable,
in the case of Floating Rate Certificated Notes which
pay interest (i) monthly, on the third Wednesday of each
month; (ii) quarterly, on the third Wednesday of March,
June, September and December of each year; (iii)
semiannually, on the third Wednesday of each of the two
months specified in the applicable Certificated Note;
and (iv) annually, on the third Wednesday of the month
specified in the applicable Certificated Note.
CALCULATION OF
INTEREST: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined as
set forth in the applicable Notes. The Issuer and the
Trustee will confirm the amount of the initial interest
payment due on any Floating Rate Certificated Note for
which the initial Interest Period is shorter or longer
than the Index Maturity. Promptly after each Interest
Determination Date for Floating Rate Certificated Notes,
the Calculation Agent will notify Standard & Poor's
Corporation of the interest rates determined on such
Interest Determination Date. Interest will be
calculated in the case of (a) Commercial Paper Rate
Notes, LIBOR Notes, CD Rate Notes, Federal Funds Rate
Notes and Prime Rate Notes on the basis of the actual
number of days in the interest period and a 360-day
year; and
20
<PAGE>
(b) Treasury Rate Notes and CMT Rate Notes, on the basis
of the actual number of days in the interest period and
the actual number of days in the year.
PAYMENTS OF PRINCIPAL
AND INTEREST: The Trustee will pay the principal amount of each
Certificated Note at Maturity upon presentation of such
Note to the Trustee. Such payment, together with
payment of interest due at Maturity of such Note, will
be made in funds available for immediate use by the
Holder of such Note. Certificated Notes presented to
the Trustee at Maturity for payment will be cancelled by
the Trustee in accordance with the terms of the
Indenture and returned to the Issuer. All interest
payments on a Certificated Note (other than interest due
at Maturity) will be made by check drawn on the Trustee
(or another Person appointed by the Trustee) and mailed
by the Trustee to the Person entitled thereto as
provided in such Note. Following each Regular Record
Date and Special Record Date, the Trustee will furnish
the Issuer with a list of interest payments to be made
on the following Interest Payment Date for each
Certificated Note and in total for all Certificated
Notes. Interest at Maturity will be payable to the
Person to whom the payment of principal is payable. The
Trustee will provide monthly to the Issuer lists of
principal and interest to be paid on Certificated Notes
maturing in the next month. The Trustee will be
responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law. On
the first Business Day of each month, the Trustee will
deliver to the Issuer by facsimile transmission a
written statement, indicating the total principal amount
of Outstanding Certificated Notes for which it serves as
trustee as of the immediately preceding Business Day.
If any Interest Payment Date for a Fixed Rate
Certificated Note is scheduled to occur on a day that is
not a Business Day with respect to such Fixed Rate
Certificated Note, the payment due on such Interest
Payment Date will be made on the following day that is a
Business Day with respect to such Fixed Rate
Certificated Note, and no interest shall accrue on the
amount payable on such Interest Payment Date for the
period from and after
21
<PAGE>
such Interest Payment Date to such following day that is
a Business Day.
If any Interest Payment Date for a Floating Rate
Certificated Note is scheduled to occur on a day that is
not a Business Day with respect to such Floating Rate
Certificated Note, such Interest Payment Date will be
the following day that is a Business Day with respect to
such Floating Rate Certificated Note; PROVIDED,
HOWEVER, that in the case of a Floating Rate
Certificated Note that is a LIBOR Note (or a Floating
Rate Certificated Note for which LIBOR is the applicable
Base Rate), if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding day that is a Business
Day.
If the date of Maturity of a Certificated Note is
scheduled to occur on a day that is not a Business Day
with respect to such Certificated Note, the payment due
at Maturity will be made on the following day that is a
Business Day with respect to such Certificated Note, and
no interest shall accrue on the amount payable at
Maturity for the period from and after the date of
Maturity.
ACCEPTANCE AND
REJECTION OF OFFERS: The Issuer has the sole right to accept offers to
purchase Certificated Notes and may reject any offer in
whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase
Certificated Notes received by it in whole or part.
Each Agent will advise the Issuer promptly by telephone
or facsimile transmission of all offers to purchase
Certificated Notes received by such Agent, other than
those rejected by it.
SETTLEMENT: The receipt by the Issuer of immediately available funds
in exchange for an authenticated Certificated Note
delivered to the selling Agent and such Agent's delivery
of such Note against receipt of immediately available
funds shall constitute "settlement" with respect to such
Note. Each offer accepted by the Issuer will be settled
on the third Business Day (or, if acceptance by the
Issuer occurs after 4:30 p.m., New York time, on the
fourth Business Day) following acceptance of such offer
pursuant to the timetable for settlement set forth
below,
22
<PAGE>
unless the Issuer and the purchaser agree to settlement
on another day; PROVIDED, HOWEVER, that the Issuer
will notify the Trustee at least twenty-four hours prior
to the time of settlement.
SETTLEMENT PROCEDURES: In the event of a purchase of Certificated Notes by one
or more of the Agents, as principal, appropriate
settlement details, if different from those set forth
below, will be set forth in an applicable Terms
Agreement to be entered into between such Agent or
Agents and the Issuer pursuant to the Distribution
Agreement.
Settlement Procedures with regard to each Certificated
Note sold by the Issuer through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Issuer by facsimile
transmission or orally (if confirmed within 24
hours by written telecommunication) of the
following settlement information:
1. Name in which such Note is to be registered
(the "Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification or Social Security
number of the Registered Owner (if
available).
4. Principal amount.
5. Stated Maturity.
6. If such Note is Fixed Rate Note, the interest
rate.
If such Note is a Floating Rate Note, the
following:
a. Base Rate or Base Rates;
b. Initial Interest Rate;
c. Spread or Spread Multiplier, if any;
d. Interest Reset Dates;
23
<PAGE>
e. Interest Reset Period;
f. Interest Payment Dates;
g. Index Maturity;
h. Interest Payment Period;
i. Calculation Agent (if other than
Citibank, N.A.);
j. Maximum Interest Rate, if any;
k. Minimum Interest Rate, if any;
l. Interest Determination Dates; and
m. Index Currency, if applicable.
7. Earliest Redemption Date, Redemption Price
and other redemption provisions, if any.
8. Settlement date.
9. Original Issue Price.
10. Original issue discount, if any.
11. Agent's commission, determined as provided in
Section 2 of the Distribution Agreement
between the Issuer and such Agent.
12. Additional terms or provisions of such Note,
if any.
13. Net Proceeds to the Issuer.
14. Commission.
15. Discount.
16. Initial Maturity Date (for Renewable Notes).
17. Final Maturity Date (for Renewable Notes).
B. The Issuer will advise the Trustee by telephone
(confirmed in writing signed by an authorized
person at any time on the same date) or facsimile
transmission signed by an authorized person of the
information set forth in
24
<PAGE>
Settlement Procedure "A" above and the name of
such Agent.
C. The Issuer will deliver (if not previously
delivered) to the Trustee a preprinted four-ply
packet for such Note, which packet will contain
the following documents in forms that have been
approved by the Issuer, the Agents and the
Trustee:
1. Note with customer confirmation.
2. Stub One - for the Trustee.
3. Stub Two - for the Agent.
4. Stub Three - for the Issuer.
D. The Trustee will complete and authenticate such
Note and deliver it (with the confirmation) and
Stubs One and Two to such Agent, and such Agent
will acknowledge receipt of the Note by stamping
or otherwise marking Stub One and returning it to
the Trustee. Such delivery will be made only
against such acknowledgement of receipt and
evidence that instructions have been given by such
Agent for payment to the account of the Issuer at
the Trustee, in funds available for immediate use,
of an amount equal to the price of such note less
Agent's commission. In the event that the
instructions given by such Agent for payment to
the account of the Issuer are revoked, the Issuer
will, as promptly as possible, wire transfer to
the account of such Agent an amount of immediately
available funds equal to the amount of such
payment and such Agent will return such Note to
the Trustee.
E. Such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will retain Stub One and will send
Stub Three to the Issuer by first-class mail.
Monthly, the Trustee will send to the Issuer a
written statement, setting forth (i) the
25
<PAGE>
principal amount of the Notes Outstanding under
the Indenture as of the date of such report, (ii)
a brief description of any sales of which the
Issuer has advised the Trustee but which have not
yet been settled and (iii) a description of
issuances and retirements of, payments on and
other activity relating to the Notes during the
related month.
SETTLEMENT PROCEDURES
TIMETABLE: For offers of Certificated Notes solicited by an
Agent, as agent, and accepted by the Issuer,
Settlement Procedures "A" through "F" set forth
above shall be completed on or before the
respective times (New York City time) set forth
below:
SETTLEMENT
PROCEDURE TIME
---------
A . . . 3:00 p.m. on day before settlement date
B . . . 4:00 p.m. on day before settlement date
C-D . . 2:15 p.m. on settlement date
E . . . 3:00 p.m. on settlement date
F . . . 5:00 p.m. on settlement date
FAILURE TO SETTLE: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the selling Agent
will notify the Issuer and the Trustee by telephone and
return such Note to the Trustee. Upon receipt of such
Note, the Issuer will immediately wire transfer to the
account of the Agent an amount equal to the amount
previously credited thereto in respect of such Note.
Such wire transfer will be made on the settlement date,
if possible, and in any event not later than the day
following the settlement date. If the failure shall
have occurred for any reason other than a default by the
applicable Agent in the performance of its obligations
hereunder and under the Distribution Agreement, the
Issuer will pay to such Agent an amount equal to the
interest earned by the Issuer with respect to such funds
during the period when they were credited to the account
of the Issuer. Immediately upon receipt of the
Certificated Note in respect of which such failure
occurred, the Trustee will mark such Note "cancelled,"
make appropriate
26
<PAGE>
entries in the Trustee's records and send such cancelled
Note to the Issuer.
PROCEDURE FOR POSTINGS: The Issuer will periodically contact one or more Agents
for recommended postings with respect to Certificated
Notes being offered. When the Issuer has determined or
changed its postings with respect to Certificated Notes
being offered, it will promptly advise the Agents. At
such times as the Issuer is not posting, the Agents will
not solicit firm offers but may record "indications of
interest" only.
PRICING SUPPLEMENTS: Within five Business Days after any sale of Certificated
Notes, the Issuer will file or transmit for filing with
the Commission in compliance with Rule 424(b)(3) of the
rules and regulations of the Commission promulgated
under the Securities Act of 1933, as amended, a copy of
a Pricing Supplement to the Prospectus relating to such
Notes that reflects the applicable interest rates and
other terms and will deliver a copy of such Pricing
Supplement to each of the Agents and the Trustee.
SUSPENSION OF
SOLICITATION,
AMENDMENT OR
SUPPLEMENT: The Issuer may instruct the Agents to suspend
solicitation of offers to purchase Certificated Notes at
any time. Upon receipt of such instructions, each Agent
will as soon as possible suspend such solicitations
until such time as it has been advised by the Issuer
that such solicitations may be resumed. The Issuer
will, consistent with its obligations under the
Distribution Agreement, promptly advise each Agent and
the Trustee whether orders outstanding at the time such
Agent suspends solicitation may be settled and whether
copies of the Prospectus, as in effect at the time of
the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Issuer will have the
sole responsibility for such decision and for any
arrangements that may be made in the event that the
Issuer determines that such orders may not be settled or
that copies of such Prospectus and Pricing Supplement
may not be so delivered.
DELIVERY OF PROSPECTUS: A copy of the most recent Prospectus and of the
applicable Pricing Supplement, if any,
27
<PAGE>
must be provided to a purchaser by the applicable Agent
prior to or at the time of the earlier of (a) the
written confirmation of a sale sent to a purchaser of
Certificated Notes or his agent and (b) the delivery of
any such Certificated Notes to a purchaser or his agent
(see Settlement Procedures).
ADVERTISING COSTS: The Issuer will determine with the Agents the amount and
nature of advertising that may be appropriate in
offering the Certificated Notes. Advertising expenses
approved in writing by the Issuer in connection with the
solicitation of purchases of Certificated Notes from the
Issuer will be paid by the Issuer.
28
<PAGE>
Exhibit 4.1(a)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THE WALT DISNEY COMPANY
SENIOR DEBT SECURITIES
-------------------------------
INDENTURE
DATED AS OF MARCH 7, 1996
-------------------------------
CITIBANK, N.A.,
AS 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 12.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2; 12.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.4
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.4
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 12.2
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.1
<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.. . . . . . . . . . . . . . 10
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . . 13
SECTION 2.5 REGISTRAR AND PAYING AGENT.. . . . . . . . . . . . . . . . 17
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST.. . . . 18
SECTION 2.7 SECURITYHOLDER LISTS.. . . . . . . . . . . . . . . . . . . 18
SECTION 2.8 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . . 18
SECTION 2.9 REPLACEMENT SECURITIES AND COUPONS.. . . . . . . . . . . . 22
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION. 23
SECTION 2.11 TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . 24
SECTION 2.12 CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . 27
SECTION 2.14 PERSONS DEEMED OWNERS.. . . . . . . . . . . . . . . . . . 28
SECTION 2.15 COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . 28
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. . . . . . . . . . . . 29
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED.. . . . . . . . . . 29
SECTION 3.3 NOTICE OF REDEMPTION.. . . . . . . . . . . . . . . . . . . 29
- ----------------------------
(2) Note: This Table of Contents shall not, for any reason, be deemed to be
part of the Indenture.
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SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.. . . . . . . . . . . . . . 30
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . 31
SECTION 3.6 SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . . 31
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . . 32
SECTION 4.2 SEC REPORTS. . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.3 COMPLIANCE CERTIFICATE.. . . . . . . . . . . . . . . . . . 32
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS.. . . . . . . . . . . . . . . 32
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . 32
SECTION 4.6 ADDITIONAL AMOUNTS.. . . . . . . . . . . . . . . . . . . . 34
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. . . . . . . . . 35
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . . . 36
SECTION 6.2 ACCELERATION. . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.3 OTHER REMEDIES. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.4 WAIVER OF PAST DEFAULTS.. . . . . . . . . . . . . . . . . 38
SECTION 6.5 CONTROL BY MAJORITY.. . . . . . . . . . . . . . . . . . . 38
SECTION 6.6 LIMITATION ON SUITS.. . . . . . . . . . . . . . . . . . . 38
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. . . . . . . . . . . 39
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. . . . . . . . . . . . . . . . 39
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . 39
SECTION 6.10 PRIORITIES. . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.11 UNDERTAKING FOR COSTS.. . . . . . . . . . . . . . . . . . 41
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS . . . . . . . . . 41
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . 41
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PAGE
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SECTION 7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. . . . . . . . . . . . . 44
SECTION 7.4 TRUSTEE'S DISCLAIMER.. . . . . . . . . . . . . . . . . . . 44
SECTION 7.5 NOTICE OF DEFAULTS.. . . . . . . . . . . . . . . . . . . . 44
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . . 45
SECTION 7.7 COMPENSATION AND INDEMNITY.. . . . . . . . . . . . . . . . 45
SECTION 7.8 REPLACEMENT OF TRUSTEE.. . . . . . . . . . . . . . . . . . 46
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. . . . . . . . . . . . . . . . 47
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.. . . . . . . . . . . . . . 47
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.. . . . 48
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES.. . . . . . . . . . . 48
SECTION 8.2 REPAYMENT TO THE COMPANY.. . . . . . . . . . . . . . . . . 49
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE . . . . .49
SECTION 8.4 DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . . .49
SECTION 8.5 COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . .49
SECTION 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. . . . . . .50
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.. . . . 51
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . . 52
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . . 53
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.. . 53
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . . 53
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. . . . . . . . . . 54
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . 54
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PAGE
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ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . 54
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.. . 54
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND.. . . . . . . . 55
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.. . . . . . . . 55
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. . . . . . . . . . . . 55
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. . . . . . . . . . . 56
SECTION 11.4 QUORUM; ACTION. . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . . . . . . . . . . . . 57
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.. . . . . 58
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. . . . . . . . . . . . . . . 58
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 TRUST INDENTURE ACT CONTROLS. . . . . . . . . . . . . . . 60
SECTION 12.2 NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 12.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.. . . . . . . 62
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. . . . 62
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.. . . . . . 62
SECTION 12.6 SEPARABILITY CLAUSE.. . . . . . . . . . . . . . . . . . . 63
SECTION 12.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. . . . . . . 63
SECTION 12.8 LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . 63
SECTION 12.9 GOVERNING LAW AND JURISDICTION. . . . . . . . . . . . . . 63
SECTION 12.10 NO RECOURSE AGAINST OTHERS.. . . . . . . . . . . . . . . 64
SECTION 12.11 SUCCESSORS.. . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS.. . . . . . . . 64
SECTION 12.13 BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . 64
SECTION 12.14 MULTIPLE ORIGINALS.. . . . . . . . . . . . . . . . . . . 64
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EXHIBIT A
CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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INDENTURE dated as of March 7, 1996, by and among The Walt Disney Company,
a Delaware corporation ("COMPANY"), and Citibank, N.A., a national banking
association incorporated and existing under the laws of the United States of
America, 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.
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 (with respect to Bearer
Securities, set forth in the Officers' Certificate with respect to a series of
Bearer Securities), whether or not published on Saturdays, Sundays or 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.
<PAGE>
"BOARD OF DIRECTORS" means 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 by its Chairman of the Board, a Vice Chairman,
its Chief Executive Officer, 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 named in an Officers' Certificate delivered to
the Trustee.
"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
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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.
"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
acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, any Vice Chairman, the Chief
Executive Officer, 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 12.4 and 12.5, signed in the name of the
Company by its Chairman of the Board, a Vice Chairman, its Chief Executive
Officer, its President or a Vice Presi-
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<PAGE>
dent, 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 12.4 and 12.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company 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, limited liability 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 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.
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"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 equal to the Principal of such Security or an
installment of Principal thereof or interest thereon 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, when used with respect to the Trustee, any Senior
Trust Officer, any Vice President, any Trust Officer, any Assistant Vice
President or any other officer or assistant officer of the Trustee customarily
performing functions similar to
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those performed by the persons who at the time shall be such officers
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"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
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"BANKRUPTCY LAW" 6.1
"COMMON DEPOSITARY" 2.2
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.2
"LEGAL HOLIDAY" 12.8
"NOTICE OF DEFAULT" 6.1
"OUTSTANDING" 2.10
"PAYING AGENT" 2.5
"PERMANENT GLOBAL BEARER SECURITY" 2.2
"REGISTRAR" 2.5
"TEMPORARY GLOBAL BEARER SECURITY" 2.2
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:
6
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"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
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
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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, engraved or word processed 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 or otherwise notated on the books and records
of the Registrar 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
other notation on the books and records of the Registrar or delivery or
redelivery of a Security of such series in global form shall be in writing but
need not comply with Section 12.4 or 12.5 and need not be accompanied by an
Opinion of Counsel (except as required by Section 2.4).
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 12.4 or 12.5 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.
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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.
Any series of Bearer Securities shall be issued initially in the form of
one temporary global Bearer Security (the "Temporary Global Bearer Security"),
which Temporary Global Bearer Security shall be deposited on behalf of the
beneficial owners of the Bearer Securities represented thereby with Citibank,
N.A., London Office, as common depositary (the "Common Depositary"), for credit
to their respective accounts (or to such other accounts as they may direct) at
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-Clear or Cedel S.A.
On or before the date 40 days after the later of the announcement of the
offering and the date of settlement (the "Exchange Date"), the Company shall
deliver to a Paying Agent located outside the United States, or its designated
agent, Bearer Securities executed by the Company. On or after the Exchange
Date, the Temporary Global Bearer Security shall be surrendered by the Common
Depositary to the Trustee or its agent, as the Company's agent for such purpose,
to be exchanged, in whole or from time to time in part, at the sole discretion
of the Company for (i) Bearer Securities or (ii) a permanent global Bearer
Security (the "Permanent Global Bearer Security") without charge to Holders, and
the principal Paying Agent or other Paying Agent outside the United States shall
authenticate and deliver (at an office or agency outside the United States), in
exchange for the Temporary Global Bearer Security or the portions thereof to be
exchanged, an equal aggregate principal amount of Bearer Securities or the
Permanent Global Bearer Security, as shall be specified by the beneficial owners
thereof; PROVIDED, HOWEVER, that upon such presentation by the Common
Depositary, the Temporary Global Bearer Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euro-Clear as to the
portion of the Temporary Global Bearer Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Cedel S.A. as to the portion of the Temporary Global Bearer Security
held for its account then to be exchanged, each to the effect hereinafter
provided. The Company and the Trustee agree that they will cooperate in causing
the paying agent located outside the United States to retain each certificate
provided by Euro-Clear or Cedel S.A. for a period of four calendar years
following the year in which the certificate is received and not to destroy or
otherwise dispose of any such certificate without first offering to deliver it
to the Company.
Each certificate to be provided by Euro-Clear and Cedel S.A. shall be
substantially in the form attached hereto as Exhibit A or with such changes
therein as shall be approved by the Company and be satisfactory to the Trustee.
Each certificate received by Euro-Clear and Cedel S.A. from persons
appearing in their records as persons entitled to a portion of the Temporary
Global Bearer Security shall be substantially to the effect set forth in this
Indenture.
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Upon any such exchange of a portion of the Temporary Global Bearer Security
for Bearer Securities or the Permanent Global Bearer Security, the Temporary
Global Bearer Security shall be endorsed to reflect the reduction of the
principal amount evidenced thereby. Until so exchanged in full, the Temporary
Global Bearer Security shall in all respects be entitled to the same benefits
under, and subject to the same terms and conditions of, this Indenture as Bearer
Securities authenticated and delivered hereunder, except that none of Euro-
Clear, Cedel S.A. or the beneficial owners of the Temporary Global Bearer
Security shall be entitled to receive payment of interest or other payments
thereon or to convert the Temporary Global Bearer Security, or any portion
thereof, into Common Stock of the Company or any other security, cash or other
property.
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 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 and the Authorized
Newspapers for publication of notices to holders of Bearer Securities;
(4) any other terms required for the establishment of a series of
Bearer Securities, including, but not limited to, tax compliance
procedures;
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(5) 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;
(6) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(7) 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;
(8) 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;
(9) 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;
(10) 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;
(11) 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;
(12) 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
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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;
(13) 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;
(14) 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;
(15) 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);
(16) if other than as defined in Section 1.1, the meaning of
"BUSINESS DAY" when used with respect to any Securities of the series;
(17) 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;
(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)).
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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 (and subject to delivery of the Board Resolution or Officers'
Certificate or supplemental indenture as set forth in Section 2.3 with respect
to the initial issuance of Securities of any series), the Company may deliver
Securities of any series together with any coupons appertaining thereto,
executed by the Company to the Trustee or its authenticating agent with respect
to
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Bearer Securities for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee or its
authenticating agent with respect to Bearer Securities 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 or its authenticating agent with respect to Bearer
Securities 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 electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
instructions shall be promptly confirmed in writing; and PROVIDED, FURTHER,
that, 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 authenticating agent 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:
. (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 or its authenticating agent 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 (provided that such Opinion of Counsel covers all
Securities of such series) and that the Opinion of Counsel above may state:
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(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 or
supplemental indenture 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 or in the case of Bearer
Securities and coupons, an authenticating agent located outside the United
States, 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 received
written notice 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 (at the expense of the Company) may appoint an authenticating
agent reasonably acceptable to the Company to authenticate Securities. Unless
otherwise provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may
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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.
Citibank, N.A., as Trustee
By:__________________________________________
Authorized Signatory
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 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 or Paying Agent (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
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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 or Registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities and Citibank, N.A., acting through its
London office or Citibank (Luxembourg) S.A. as provided in the Officer's
Certificate establishing the Securities, as paying agent and authenticating
agent for Bearer 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 in writing 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 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
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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 office or
agency of the Company located outside the United States, 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 in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee or Paying Agent 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, the Paying Agent 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
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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 in accordance
with the instructions, if any, of the Depositary.
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 in accordance with the instructions, if
any, of the Depositary.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any global
Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a 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
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specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than five business days prior to 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 global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such 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 or, in the case of Bearer Securities, an authenticating agent outside
the United States shall authenticate and deliver, in exchange for each portion
of such 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 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 no Bearer Security or coupon
delivered in exchange for a portion of a 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 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 before 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 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. All
cancelled Securities and coupons held by the Trustee shall be destroyed by the
Trustee and a certificate of their destruction delivered to the Company unless
the Company directs, by Company Order, that the Trustee shall cancel Securities
and deliver a certificate of destruction to the Company. 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 in
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writing. The Trustee shall deliver such Registered Securities as instructed
in writing by the Depositary.
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 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 paying agent outside the United States, 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 written notice to
the Company, any such paying agent 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 or paying agent outside the United States 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 outstand-
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ing, 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 or paying agent) 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,
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direction, notice, consent or waiver, only Securities which the Trustee has
received written notice are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
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 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.
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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. Subject to Section 2.2, 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
or Permanent Global 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 Exchange
Date, the Company shall deliver to the Trustee or paying agent outside the
United States permanent Securities of the same series which may be in definitive
or global form at the sole discretion of the Company, 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 or paying agent outside
the United States, 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
which may be in definitive or global form at the sole discretion of the Company
and of like tenor without charge and the authenticating agent shall authenticate
and deliver, in exchange for each portion of such temporary global Security, an
equal aggregate Principal Amount of definitive Securities or interests in the
Permanent Global Bearer Security 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 Bearer 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 PROVIDED, that no beneficial owner of a registered Temporary Global
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Bearer Security who is not a United States alien or who is located in the United
States shall be entitled to receive Bearer Securities.
Unless otherwise specified in any such Temporary Global Bearer Security,
the interest of a beneficial owner of Securities of a series represented by such
Temporary Global Bearer Security shall be exchanged for permanent Securities of
the same series which may be in definitive or global form at the sole discretion
of the Company 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 Bearer Security, any such exchange
shall be made free of charge to the beneficial owners of such Temporary Global
Bearer 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 a paying agent outside the United
States 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 Bearer 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 shall be
cancelled. 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
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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 a certificate 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
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
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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 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
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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
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 (including the
information set forth in clauses (4), (5) and (6) of Section 3.3).
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 such 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
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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 (including CUSIP/ISIN numbers) 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 12.2 need not
identify particular Registered Securities to be redeemed.
At the Company's written 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
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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 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 a paying agent located outside the
United States if there be furnished to the Company, the Trustee and such paying
agent such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that 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. On or prior to 10:00 a.m. New
York City time 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
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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 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 (provided, in the case of Registered Securities, the
Trustee has received written payment instructions at least fifteen days prior to
any payment date) 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).
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SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year (beginning with the
fiscal year ending on September 30, 1996) an Officers' Certificate stating
whether or not the signers know of any Default 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 120
Wall Street, New York, New York 10043, Attention: Corporate Trust
Administration shall be such office or agency for all of the aforesaid purposes
(except that with respect to the presentation of Registered Securities for
payment or for registration of transfer or exchange such office shall be the
office of the Trustee at 111 Wall Street, New York, New York, 10043, Attention:
Corporate Trust Department) 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
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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 12.2, 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 office of the paying
agent and authenticating agent 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 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
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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.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company shall
not 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 shall be the continuing corporation
or (2) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease the properties and assets of
the Company 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 Trust-
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ee, in form satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company 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
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 under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged from all obligations and covenants under this
Indenture, the Securities and coupons.
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 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 of a Notice of Default;
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(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
in an involuntary case or proceeding under any applicable Bankruptcy Law or
(b) a decree or order adjudging the Company bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company 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 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 consents to the entry of
a decree or order for relief in respect of the Company 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 files a petition or answer or consent seeking
reorganization or substantially comparable relief under any applicable
federal state law, (d) the Company (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 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
takes any corporate action in furtherance of any such actions in this
clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"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
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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 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
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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 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
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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 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
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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 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
THIRD: 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
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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
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 with respect to
Securities of any series:
(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,
with respect to any certificates or opinions specifically required to be
furnished to the Trustee, 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
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(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 or exercising any trust or power
conferred upon the Trustee under this Indenture.
(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 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.
(e) Subject to the provisions Section 7.1, the Trustee may rely and shall
be protected in acting or refraining from acting upon any resolution, Officers'
Certificate, Opinion of Counsel (or both), Company Order or any other
certificate, statement, instrument, opinion report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper believed to be
genuine and to have been signed or presented by the proper party or parties;
(f) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors
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may be evidenced to the Trustee by a copy thereof certified by the secretary or
an assistant secretary of the Company;
(g) The Trustee may consult with counsel and any written advice or Opinion
of Counsel shall, subject to the provisions of Section 7.1, be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(h) The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(i) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in the aggregate principal amount of the Securities of such
series then Outstanding; provided, that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of any such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expense or liabilities as a condition to proceeding; the reasonable expense of
every such investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Company upon demand; and
(j) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 7.3 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.
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SECTION 7.4 TRUSTEE'S DISCLAIMER. The recitals contained herein and in
the Securities, except the Trustee certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. 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 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
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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, the Indenture and the
Securities or the issuance of the Securities or of any series thereof
and the performance of its duties hereunder including the costs and
expenses of defending itself against any investigation or 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 or other termination of this Indenture or the resignation
or removal of the Trustee. 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
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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, subject to the rights of the retiring Trustee pursuant to Section
7.7, 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 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
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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 $,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
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
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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 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
shall be deemed to have been discharged from its obligations with respect to
the Defeased Secu-
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rities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company 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
shall be released from its 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 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
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
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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
Company has met all of the conditions precedent to such defeasance and 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.
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 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
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(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 secure the Securities; or
(9) 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 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
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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; or
(3) 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
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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 modified as to conform, in the
opinion of the Trustee and the Board of Directors (and satisfactory to the
Trustee) , 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.
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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 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
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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 12.2, 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
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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 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
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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.
(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
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<PAGE>
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 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 de-
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scribed; 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 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.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.1 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 12.2 NOTICES. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage prepaid; provided,
that any notice or communication by and among the Trustee and the Company may be
made by telecopy or other commercially accepted electronic means and shall be
effective upon receipt thereof and shall be confirmed in writing, mailed by
first-class mail, postage prepaid, and addressed as follows:
if to the Company:
The Walt Disney Company
500 South Buena Vista Street
Burbank, CA 91521
Attention: Legal Department
if to the Trustee:
Citibank, N.A.
120 Wall Street
New York, New York 10043
Attention: Corporate Trust Administration, Telecopier: (212)
480-1614
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
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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
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 12.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect
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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 12.4 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 12.5 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 12.6 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 12.7 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.
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SECTION 12.8 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 12.9 GOVERNING LAW AND JURISDICTION. THIS INDENTURE AND THE
SECURITIES 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. THE COMPANY, THE
TRUSTEE, AND EACH HOLDER OF A SECURITY (BY ACCEPTANCE THEREOF) THEREBY, (I)
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS
LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN CONNECTION WITH
ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS INDENTURE, (II) IRREVOCABLY
WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION IN SUCH SUITS AND (III)
IRREVOCABLY WAIVES TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE FEDERAL AND NEW YORK
STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND (C)
THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 12.10 NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities 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 12.11 SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
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SECTION 12.12 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 12.13 BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities, 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 12.14 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.
THE WALT DISNEY COMPANY
By: /s/ Richard D. Nanula
------------------------------------------
Name: Richard D. Nanula
Title: Senior Executive Vice President
and Chief Financial Officer
Attest:
/s/ Mark D. Rozells
- ----------------------------------------
Name: Mark D. Rozells
Title: Vice President and
Assistant Treasurer
CITIBANK, N.A., as Trustee
By: /s/ Carol Ng
---------------------------------------
Name: Carol Ng
Title: Vice President
Attest:
/s/ P. DeFelice
- ----------------------------------------
Name: P. DeFelice
Title: Vice President
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EXHIBIT A
"CERTIFICATE
This is to certify that, based on certificates we have received from
our member organizations substantially in the form set out in the Indenture
relating to the above-captioned Securities, as of the date hereof,
U.S.$_____________ principal amount of the above-captioned Securities acquired
from The Walt Disney Company (i) is owned by persons that are not United States
persons (as defined below), (ii) is owned by United States persons that are (a)
foreign branches of United States financial institutions (as defined in United
States Treasury Regulations Section 1.165-12(c)(1)(v) ("financial
institutions")) purchasing for their own account or for resale or (b) United
States persons who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such financial
institutions on the date hereof (and in the case of either clause (a) or (b),
each financial institution has agreed for the benefit of The Walt Disney Company
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder) or (iii) is owned by financial institutions for purposes of resale
during the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)). Financial institutions described in clause
(iii) of the preceding sentence (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to United States persons or to persons within the
United States or its possessions.
As used in this Certificate, "United States persons" means citizens or
residents of the United States, corporations, partnerships or other entities
created or organized in or under the laws of the United States or any political
subdivision thereof or estates or trusts the income of which is subject to
United States Federal income taxation regardless of the source; "United States"
means the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange any portion of the Temporary Global Bearer Security excepted in such
certificates and (ii) as of the date hereof, we have not received any
notification from any of our member organizations to the effect that the
statements made by such member organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are
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commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate to any
interested party in such proceedings. We agree to retain each statement
provided by a member organization for a period of four calendar years following
the year in which the statement is received.
Dated: _________, 19__*
*To be dated no
earlier than the
Exchange Date.
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
AS OPERATOR OF THE EUROCLEAR
CLEARANCE SYSTEM]
[CEDEL BANK SOCIETE ANONYME]
___________________________"
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Exhibit 4.1(b)
THE WALT DISNEY COMPANY
OFFICERS' CERTIFICATE
Pursuant to Section 2.1 and Section 2.3(a) of the Indenture, dated as of
March 7, 1996 (the "Indenture"), between The Walt Disney Company, a Delaware
corporation (the "Company"), and Citibank, N.A., a national banking association,
as trustee (the "Trustee"), the undersigned Richard D. Nanula and David K.
Thompson, the Senior Executive Vice President and Chief Financial Officer and
Senior Vice President - Assistant General Counsel of the Company, respectively,
hereby certify on behalf of the Company as follows:
(1) AUTHORIZATION. The establishment of two series of Securities of
the Company has been approved and authorized in accordance with the
provisions of the Indenture. The forms of the Five-Year Notes (as defined
below) and the Ten-Year Notes (as defined below) attached hereto as
EXHIBITS A and B, respectively, have been approved and authorized in
accordance with the provisions of the Indenture.
(2) COMPLIANCE WITH COVENANTS AND CONDITIONS PRECEDENT. All
covenants and conditions precedent provided for in the Indenture relating
to the establishment of a series of Securities have been complied with.
(3) TERMS. The terms of the two series of Securities established
pursuant to this Officers' Certificate shall be as follows:
(i) TITLE. The titles of the series of Securities are the
"6 3/8% Senior Notes due March 30, 2001" (the "Five-Year Notes") and
the "6 3/4% Senior Notes due March 30, 2006" (the "Ten-Year Notes"
and together with the Five-Year Notes, the "Notes"), respectively.
(ii) AGGREGATE PRINCIPAL AMOUNT. The aggregate principal amount
of each of the Five-Year Notes and Ten-Year Notes which may be
authenticated and delivered pursuant to the Indenture (except for
Notes (i) authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of, other Notes pursuant to
Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 of the Indenture or (ii)
which, pursuant to Section 2.4 of the Indenture, are deemed never to
have been authenticated and delivered) is $1,300,000,000 for each of
the Five-Year Notes and Ten-Year Notes.
(iii) REGISTERED SECURITIES IN BOOK-ENTRY FORM. Each of the
Five-Year Notes and Ten-Year Notes will be issued in book-entry form
<PAGE>
("Book-Entry Notes") and represented by one or more global notes (the
"Global Notes") in fully registered form, without coupons. The
initial Depositary with respect to the Global Notes will be The
Depository Trust Company, as Depositary for the accounts of its
participants (including Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system, and Cedel Bank,
societe anonyme). So long as the Depositary for a Global Note, or its
nominee, is the registered owner of the Global Note, the Depositary or
its nominee, as the case may be, will be considered the sole owner or
holder of the Notes in book-entry form represented by such Global Note
for all purposes under the Indenture. Book-Entry Notes will not be
exchangeable for Notes in definitive form ("Definitive Notes") except
that, if the Depositary with respect to any Global Note or Notes is at
any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, the Company
will issue Definitive Notes in exchange for the Book-Entry Notes
represented by any such Global Note or Notes. In addition, the
Company may at any time and in its sole discretion determine not to
have a Global Note or Notes, and, in such event, will issue Definitive
Notes in exchange for the Book Entry Notes represented by such Global
Note or Notes in accordance with the provisions of Section 2.8 of the
Indenture.
(iv) PERSONS TO WHOM INTEREST PAYABLE. Interest will be payable
to the Person in whose name a Note is registered at the close of
business (whether or not a Business Day) on the Regular Record Date
with respect to such Note, except for interest payable on a Note
surrendered for redemption as set forth in paragraph (x) below (as to
which interest will be paid, together with the principal amount so
surrendered, to the Person who surrenders such Note, or portion
thereof, for redemption).
(v) STATED MATURITY. The principal amount of the Five-Year
Notes and Ten-Year Notes will be payable on March 30, 2001 and March
30, 2006, respectively.
(vi) RATE OF INTEREST; INTEREST PAYMENT DATES; REGULAR RECORD
DATES; ACCRUAL OF INTEREST. The Five-Year Notes and Ten-Year Notes
will bear interest at the rate of 6 3/8% and 6 3/4%, respectively, per
annum. Interest on the Notes will be payable semiannually in arrears
on March 30 and September 30 of each year, commencing on September 30,
1996. The Regular Record Date shall be the March 15 or September 15
(whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. The Notes will bear interest from
March 27,
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1996 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for until the principal thereof is paid
or made available for payment. Interest payments shall be the amount
of interest accrued from and including the most recent Interest
Payment Date in respect of which interest has been paid or duly
provided for (or from and including March 27, 1996 if no interest has
been paid or duly provided for with respect to such Note), to but
excluding the next succeeding Interest Payment Date.
(vii) PLACE OF PAYMENT; REGISTRATION OF TRANSFER AND EXCHANGE;
NOTICES TO COMPANY. Payment of the principal and interest on the
Notes will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York
(initially designated to be the Corporate Trust Office of the
Trustee), or at such other offices or agencies as the Company may
designate, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of interest (other than interest payable at redemption) may be
made by check mailed to the address of the Person entitled thereto as
such address shall appear in the register of Securities, and PROVIDED,
FURTHER, that the Holder of the Notes shall be entitled to receive
payments of principal of and interest on the Notes by wire transfer of
immediately available funds, if appropriate wire transfer instructions
have been received in writing by the Trustee not less than 15 days
prior to the applicable payment date.
The Notes may be presented for exchange and registration of
transfer at the office or agency of the Company in the Borough of
Manhattan, The City of New York (initially designated to be the
Corporate Trust Office of the Trustee), or at such other offices or
agencies as the Company may designate. The Company will appoint a
Luxembourg transfer agent, where the Notes may be tendered for
transfer, acceptable to the Trustee, in the event Definitive Notes are
issued in exchange for beneficial interests in the Global Notes.
Notices and demands to or upon the Company in respect of the
Notes and the Indenture may be served at The Walt Disney Company, 500
South Buena Vista Street, Burbank, CA 91521, Attention: Legal
Department.
(viii) REDEMPTION. The Notes may not be redeemed by the Company
prior to maturity and are not entitled to any mandatory redemption or
sinking fund payments, except under certain circumstances
3
<PAGE>
relating to the obligation to pay Additional Amounts as described in
subparagraph (x) below.
(ix) DENOMINATIONS. Beneficial interests in the Notes will be
issuable in denominations of $1,000 and integral multiples thereof.
(x) PAYMENT OF ADDITIONAL AMOUNTS; REDEMPTION FOR TAX PURPOSES.
The Company will, subject to certain exceptions and limitations set
forth below, pay to the holder of any Note who is a United States
Alien (as defined below), as additional interest, such amounts
("Additional Amounts") as may be necessary in order that every net
payment on such Note (including payment of the principal of and
interest on such Note) by the Company or a paying agent, after
deduction or withholding for or on account of any present or future
tax, assessment or other governmental charge imposed upon or as a
result of such payment by the United States (or any political
subdivision or taxing authority thereof or therein), will not be less
than the amount provided in such Note to be then due and payable;
provided, however, that the foregoing obligation to pay Additional
Amounts will not apply to:
(a) any tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder or beneficial owner
of such Note (or between a fiduciary, settlor or beneficiary of, or a
person holding a power over, such holder, if such holder is an estate
or a trust, or a member or shareholder of such holder, if such holder
is a partnership or corporation) and the United States or any
political subdivision or taxing authority thereof or therein,
including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, person holding a power, member or shareholder)
being or having been a citizen or resident of the United States or
treated as a resident thereof or being or having been engaged in a
trade or business or present therein or having or having had a
permanent establishment therein or (ii) such holder's or beneficial
owner's past or present status as a personal holding company, foreign
personal holding company, foreign private foundation or other foreign
tax-exempt organization with respect to the United States, controlled
foreign corporation for United States tax purposes or corporation that
accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, excise, sales, transfer,
wealth or personal property tax or any similar tax, assessment or
other governmental charge;
4
<PAGE>
(c) any tax, assessment or other governmental charge that
would not have been imposed but for the presentation by the holder of
a Note for payment more than 10 days after the date on which such
payment became due and payable or the date on which payment thereof
was duly provided for, whichever occurred later;
(d) any tax, assessment or other governmental charge that
is payable otherwise than by withholding from a payment on a Note;
(e) any tax, assessment or other governmental charge
required to be withheld by any paying agent from a payment on a Note,
if such payment can be made without such withholding by any other
paying agent;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for a failure to comply with
applicable certification, information, documentation, identification
or other reporting requirements concerning the nationality, residence,
identity or connection with the United States of the holder or
beneficial owner of a Note if such compliance is required by statute
or regulation of the United States or by an applicable tax treaty to
which the United States is a party as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge
imposed on a holder that actually or constructively owns 10 percent or
more of the combined voting power of all classes of the Company's
stock;
(h) any tax, assessment or other governmental charge which
would not have been imposed but for the fact that such Note
constitutes a "United States real property interest" as defined in
section 897(c)(1) of the United States Internal Revenue Code of 1986,
as amended, with respect to the beneficial owner of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f),
(g) and (h);
nor shall Additional Amounts be paid with respect to a payment on a
Note to a holder that is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent a beneficiary or
settlor with respect to such fiduciary or a member of such partnership
or a beneficial owner would not have been entitled to Additional
Amounts (or
5
<PAGE>
payment of Additional Amounts would not have been necessary) had such
beneficiary, settlor, member or beneficial owner been the holder of
such Note.
For the purposes above, a "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.
"United States" means the United States of America (including the
States and the District of Columbia) and its territories, its
possessions and other areas subject to its jurisdiction.
If (a) as a result of any change in, or amendment to, the laws
(or any regulations or rulings promulgated thereunder) of the United
States (or any political subdivision or taxing authority thereof or
therein), or any change in the official application (including a
ruling by a court of competent jurisdiction in the United States) or
interpretation of such laws, regulations or rulings, which change or
amendment is announced or becomes effective on or after March 27,
1996, the Company becomes or will become obligated to pay Additional
Amounts as described above or (b) any act is taken by a taxing
authority of the United States on or after March 27, 1996, whether or
not such act is taken with respect to the Company or any affiliate,
that results in a substantial likelihood that the Company will or may
be required to pay such Additional Amounts, then the Company may, at
its option, redeem, as a whole, but not in part, the Notes on not less
than 30 nor more than 60 days' prior notice, at a redemption price
equal to 100% of their principal amount, together with interest
accrued thereon to the date fixed for redemption; provided that the
Company determines, in its business judgment, that the obligation to
pay such Additional Amounts cannot be avoided by the use of reasonable
measures available to it, not including substitution of the obligor
under the Notes or any action that would entail a material cost to the
Company. No redemption pursuant to (b) above may be made unless the
Company shall have received an opinion of independent counsel to the
effect that an act taken by a taxing authority of the United States
results in a substantial likelihood that it will or may be required to
pay Additional Amounts described above and the Company shall have
delivered to the Trustee a certificate, signed by a duly authorized
officer, stating that based on such opinion the Company is entitled to
redeem the Notes pursuant to their terms.
6
<PAGE>
(xi) REGISTER OF SECURITIES; PAYING AGENT. The register of
Securities for the Notes will be initially maintained at the Corporate
Trust Office of the Trustee. The Company hereby appoints the Trustee
as the initial Paying Agent. The Company will appoint a Luxembourg
paying agent, acceptable to the Trustee, in the event Definitive Notes
are issued in exchange for beneficial interests in the Global Notes.
(xii) FORM. The Five-Year Notes and the Ten-Year Notes will be
in substantially the form set forth in EXHIBITS A and B hereto,
respectively, and may have such other terms as are provided therein.
(xiii) NOTICES. All notices will be published in English in
Luxembourg in the LUXEMBURGER WORT for so long as the Notes are listed
on the Luxembourg Stock Exchange. If at any time publication in such
newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the market
regions as the Trustee shall determine. Any such notice shall be
deemed to have been given on the date of such publication or, if
published more than once on different dates, on the first date on
which publication is made.
Capitalized terms used in this Officers' Certificate and not otherwise
defined herein shall have the meanings set forth in the Indenture.
Each of the undersigned, for himself, states that he has read and is
familiar with the provisions of Article Two of the Indenture relating to the
establishment of a series of Securities thereunder and the establishment of a
form of Security representing a series of Securities thereunder and, in each
case, the definitions therein relating thereto; that he is generally familiar
with the other provisions of the Indenture and with the affairs of the Company
and its acts and proceedings and that the statements and opinions made by him in
this Certificate are based upon such familiarity; and that he has made such
examination or investigation as is necessary to enable him to determine whether
or not the covenants and conditions referred to above have been complied with;
and in his opinion, such covenants and conditions have been complied with.
Insofar as this Certificate relates to legal matters it is based upon the
Opinion of Counsel delivered to the Trustee contemporaneously herewith pursuant
to Section 2.4 of the Indenture and relating to the Notes.
7
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto signed this Certificate
on behalf of the Company as of this 27th day of March, 1996.
THE WALT DISNEY COMPANY
By: /s/ Richard D. Nanula
----------------------------------------
Name: Richard D. Nanula
Title: Senior Executive Vice President
and Chief Financial Officer
By: /s/ David K. Thompson
----------------------------------------
Name: David K. Thompson
Title: Senior Vice President - Assistant
General Counsel
<PAGE>
EXHIBIT A
SPECIMEN FIVE-YEAR NOTE
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
THE WALT DISNEY COMPANY
6 3/8% SENIOR NOTE DUE MARCH 30, 2001
NO. R Principal Amount: U.S. $
CUSIP: 254687 AJ 5
The Walt Disney Company, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company") for
value received, hereby promises to pay to , or registered
assigns, the principal sum of
DOLLARS, on March 30, 2001 and to pay interest thereon from March 27, 1996 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for semiannually in arrears on March 30 and September 30, in each
year, commencing on September 30, 1996 at the rate of 6 3/8% per annum, until
the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture (as defined herein), be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date, which shall be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding
such
<PAGE>
Interest Payment Date. Except as otherwise provided in the Indenture, any such
interest not punctually paid or duly provided for on any Interest Payment Date
(herein called "Defaulted Interest") will forthwith cease to be payable to the
Holder on the Regular Record Date with respect to such Interest Payment Date and
may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture. Payment of the
principal and interest on this Note will be made at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, and at any other office or agency maintained by the Company for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities, and PROVIDED, FURTHER, that the Holder of
this Note shall be entitled to receive payments of principal of and interest on
this Note by wire transfer of immediately available funds, if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 days prior to the applicable payment date.
Reference is hereby made to the further provisions of this Note set forth
herein, which further provisions shall for all proposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, The Walt Disney Company has caused this Instrument to
be signed by the manual signature of 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 WALT DISNEY COMPANY
(SEAL)
By:
--------------------------------
Richard D. Nanula
Senior Executive Vice President and
Chief Financial Officer
ATTEST:
By:
--------------------------------
Marsha L. Reed
Corporate Secretary
Dated: March 27, 1996
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE>
THE WALT DISNEY COMPANY
6 3/8% SENIOR NOTE DUE MARCH 30, 2001
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to), issued and to be issued pursuant
to such Indenture. This Note is one of a series designated by the Company as
its 6 3/8% Senior Notes due March 30, 2001, limited in aggregate principal
amount to $1,300,000,000. The Indenture does not limit the aggregate principal
amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of March 7,
1996 (herein called the "Indenture"), between the Company and Citibank N.A., a
national banking association, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered.
The Notes are issuable in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of any
authorized denomination, as requested by the Holder surrendering the same, upon
surrender of the Note or Notes to be exchanged at any office or agency described
below where the Notes may be presented for registration of transfer.
This Note may not be redeemed by the Company prior to maturity and is not
entitled to any mandatory redemption or sinking fund payments, except under
certain circumstances relating to the obligation of the Company to pay
Additional Amounts (as defined herein). The Company will, subject to certain
exceptions and limitations, pay additional amounts to the Holder of this Note
who is a United States Alien, as additional interest, such amounts ("Additional
Amounts") as may be necessary in order that every net payment on such Note
(including payment of the principal of this Note and interest thereon) by the
Company or a paying agent, after deduction or withholding for or on account of
any present or future tax, assessment or other governmental charge imposed upon
or as a result of such payment by the United States (or any political
subdivision or taxing authority thereof or therein), will not be less than the
amount provided herein to be then due and payable, Subject to certain
exceptions and the satisfaction of certain conditions, if (a) under certain
circumstances the Company becomes obligated to pay Additional Amounts or (b)
any act is taken by a taxing authority of the United States that results in a
substantial likelihood that the Company will or may be required to pay such
Additional Amounts, then the Company may, at its option, redeem, as a whole, but
not in part, the Notes on not less than 30 nor more than 60 days' prior notice,
at a redemption price equal to 100% of their principal amount, together with
interest accrued thereon to the date fixed for redemption. Any such redemption
will comply with Article 3 of the Indenture.
<PAGE>
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Eight, of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the register of Securities,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in the Borough of Manhattan, The City of New York, or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 2.11, 3.6 or 9.5 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes,
<PAGE>
whether or not this Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York of the United States of
America.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Note, 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)
Additional abbreviations may also be used though not in the above list.
--------------------
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee
- ----------------------------------------
- ----------------------------------------
- --------------------------------------------------------------------------------
(Please Typewrite or Print Name and Address of Assignee, Including Postal Zip
Code)
- --------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
- ----------------------------------------------------------------------- attorney
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: Signature:
--------------------- ------------------------------
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
EXHIBIT B
SPECIMEN TEN-YEAR NOTE
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
THE WALT DISNEY COMPANY
6 3/4% SENIOR NOTE DUE MARCH 30, 2006
NO. R Principal Amount: U.S. $
CUSIP: 254687 AM 8
The Walt Disney Company, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company") for
value received, hereby promises to pay to , or registered
assigns, the principal sum of
DOLLARS, on March 30, 2006 and to pay interest thereon from March 27, 1996 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for semiannually in arrears on March 30 and September 30, in each
year, commencing on September 30, 1996 at the rate of 6 3/4% per annum, until
the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture (as defined herein), be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date, which shall be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Except as otherwise provided in the Indenture, any
such interest not punctually paid or duly provided for on any Interest Payment
Date (herein called "Defaulted Interest") will forthwith cease to be payable to
the Holder on the Regular Record Date with respect to such Interest Payment Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the
<PAGE>
payment of such Defaulted Interest to be fixed by the Trustee, notice of which
shall be given to Holders of Notes not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, and at any other
office or agency maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
register of Securities, and PROVIDED, FURTHER, that the Holder of this Note
shall be entitled to receive payments of principal of and interest on this Note
by wire transfer of immediately available funds, if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15 days
prior to the applicable payment date.
Reference is hereby made to the further provisions of this Note set forth
herein, which further provisions shall for all proposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, The Walt Disney Company has caused this Instrument to
be signed by the manual signature of 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 WALT DISNEY COMPANY
(SEAL)
By:
-------------------------------------
Richard D. Nanula
Senior Executive Vice President and
Chief Financial Officer
ATTEST:
By:
--------------------------------
Marsha L. Reed
Corporate Secretary
Dated: March 27, 1996
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE>
THE WALT DISNEY COMPANY
6 3/4% SENIOR NOTE DUE MARCH 30, 2006
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to), issued and to be issued pursuant
to such Indenture. This Note is one of a series designated by the Company as
its 6 3/4% Senior Notes due March 30, 2006, limited in aggregate principal
amount to $1,300,000,000. The Indenture does not limit the aggregate principal
amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of March 7,
1996 (herein called the "Indenture"), between the Company and Citibank N.A., a
national banking association, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered.
The Notes are issuable in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of any
authorized denomination, as requested by the Holder surrendering the same, upon
surrender of the Note or Notes to be exchanged at any office or agency described
below where the Notes may be presented for registration of transfer.
This Note may not be redeemed by the Company prior to maturity and is not
entitled to any mandatory redemption or sinking fund payments, except under
certain circumstances relating to the obligation of the Company to pay
Additional Amounts (as defined herein). The Company will, subject to certain
exceptions and limitations, pay additional amounts to the Holder of this Note
who is a United States Alien, as additional interest, such amounts ("Additional
Amounts") as may be necessary in order that every net payment on such Note
(including payment of the principal of this Note and interest thereon) by the
Company or a paying agent, after deduction or withholding for or on account of
any present or future tax, assessment or other governmental charge imposed upon
or as a result of such payment by the United States (or any political
subdivision or taxing authority thereof or therein), will not be less than the
amount provided herein to be then due and payable, Subject to certain
exceptions and the satisfaction of certain conditions, if (a) under certain
circumstances the Company becomes obligated to pay Additional Amounts or (b)
any act is taken by a taxing authority of the United States that results in a
substantial likelihood that the Company will or may be required to pay such
Additional Amounts, then the Company may, at its option, redeem, as a whole, but
not in part, the Notes on not less than 30 nor more than 60 days' prior notice,
at a redemption price equal to 100% of their principal amount, together with
interest accrued thereon to the date fixed for redemption. Any such redemption
will comply with Article 3 of the Indenture.
<PAGE>
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Eight, of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the register of Securities,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in the Borough of Manhattan, The City of New York, or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 2.11, 3.6 or 9.5 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes,
<PAGE>
whether or not this Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York of the United States of
America.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Note, 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)
Additional abbreviations may also be used though not in the above list.
--------------------
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Other
Identifying Number of Assignee
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
(Please Typewrite or Print Name and Address of Assignee, Including Postal Zip
Code)
- --------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
- ----------------------------------------------------------------------- attorney
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: Signature:
---------------------------- ------------------------------
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
THE WALT DISNEY COMPANY
OFFICERS' CERTIFICATE
Pursuant to Sections 2.1 and 2.3(a) of the Indenture, dated as of
March 7, 1996 (the "Indenture"), between The Walt Disney Company, a Delaware
corporation (the "Company"), and Citibank, N.A., a national banking association,
as trustee (the "Trustee"), the undersigned Richard D. Nanula and David K.
Thompson, the Senior Executive Vice President-Chief Financial Officer and Senior
Vice President-Assistant General Counsel of the Company, respectively, hereby
certify on behalf of the Company as follows:
(1) AUTHORIZATION. The establishment of a series of medium-term
notes of the Company (the "Medium-Term Notes") has been approved and
authorized in accordance with the provisions of the Indenture. The forms
of Medium-Term Notes attached hereto as Exhibits A, B, C and D have been
approved and authorized in accordance with the provisions of the
Indenture.
(2) COMPLIANCE WITH CONDITIONS PRECEDENT. All conditions
precedent provided for in the Indenture relating to the establishment of
new forms and terms of the Medium-Term Notes have been complied with.
(3) TERMS. The terms of the series of Securities established
pursuant to this Officers' Certificate shall be as follows:
(a) TITLE. The title of the series of Securities is the
"Medium-Term Notes" (the "Notes").
(b) Aggregate Initial Offering Price. Subject to being
increased by the Company from time to time as shall be stated in a
subsequent Officers' Certificate, the aggregate initial offering
price of the Notes which may be authenticated and delivered pursuant
to the Indenture (except for Notes (i) authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 and 10.3
of the Indenture or (ii) which, pursuant to Section 2.4 of the
Indenture, are deemed never to have been authenticated and
delivered) is
<PAGE>
$3,000,000,000 or the equivalent thereof at the date of issue in one
or more foreign or composite currencies.
(c) REGISTERED SECURITIES IN DEFINITIVE OR BOOK-ENTRY FORM;
Global Security; Depository. Each Note will be issued in fully
registered book-entry form (a "Book-Entry Note") or definitive form
(a "Definitive Note"), as set forth in the pricing supplement to the
Prospectus and Prospectus Supplement relating to such Note (the
"Pricing Supplement"). Upon issuance, all Notes in book-entry form
having the same original issue date, Stated Maturity and otherwise
having identical terms and provisions will be represented by a
single global security (each a "Global Security"); PROVIDED,
HOWEVER, that if by reason of the foregoing a single Global
Security would exceed $200,000,000 in aggregate principal amount,
one Global Security will be issued to represent each $200,000,000 of
aggregate principal amount and an additional Global Security will be
issued to represent any remaining principal amount. The initial
Depository with respect to any Global Security will be The
Depository Trust Company. So long as the Depository for a Global
Security, or its nominee, is the registered owner of the Global
Security, the Depository or its nominee, as the case may be, will be
considered the sole owner or holder of the Notes in book-entry form
represented by such Global Security for all purposes under the
Indenture. Book-Entry Notes will not be exchangeable for Definitive
Notes except that, if the Depository with respect to any Global
Security or Securities is at any time unwilling or unable to
continue as Depository and a successor Depository is not appointed
by the Company within 90 days, the Company will issue Definitive
Notes in exchange for the Book-Entry Notes represented by any such
Global Security or Securities. In addition, the Company may at any
time and in its sole discretion determine not to have a Global
Security or Securities, and, in such event, will issue Definitive
Notes in exchange for the Book Entry Notes represented by such
Global Security or Securities in accordance with the provisions of
Section 2.8 of the Indenture.
(d) PERSONS TO WHOM INTEREST PAYABLE. Unless otherwise
specified in a Note or an applicable Pricing Supplement, interest
will be payable to the person in whose name a Note is registered at
the close of business (whether or not a Business Day) on the Regu-
2
<PAGE>
lar Record Date with respect to such payment of interest; PROVIDED,
HOWEVER, that interest payable at Maturity will be payable to the
person to whom principal is payable. The first payment of interest
on any Note originally issued between a Regular Record Date and an
Interest Payment Date will be made on the Interest Payment Date
immediately following the next succeeding Regular Record Date to the
registered owner on such next succeeding Regular Record Date.
(e) BUSINESS DAY. "Business Day" means any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law,
regulation or executive order to close in The City of New York;
PROVIDED, HOWEVER, that with respect to Notes the payment of
which is to be made in a Denominated Currency (as defined below)
other than U.S. dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or
executive order to close in the principal financial center of the
country of such Denominated Currency (or, in the case of European
Currency Units ("ECUs"), is not a day designated as an ECU
Non-Settlement Day by the ECU Banking Association or otherwise
generally regarded in the ECU interbank market as a day on which
payments in ECUs shall not be made); PROVIDED, HOWEVER, that,
with respect to LIBOR Notes, such day is also a London Business Day
(as defined below). "London Business Day" means any day (i) if the
Index Currency (as defined below) is other than ECU, on which
dealings in such Index Currency are transacted in the London
interbank market or (ii) if the Index Currency is ECU, that is not
designated as an ECU Non-Settlement Day by the ECU Banking
Association or otherwise generally regarded in the ECU interbank
market as a day on which payments in ECUs shall not be made.
(f) STATED MATURITY; EXTENSION OF MATURITY.
(i) The Notes may be issued on different dates and the
principal amount of the Notes may be payable on different
dates, as shall be set forth in the Note or an applicable
Pricing Supplement; PROVIDED that the date on which the
principal of any Note is payable will be on a Business
3
<PAGE>
Day no less than nine months from the date of issue stated on
the face thereof.
(ii) The Pricing Supplement relating to each Note will
indicate whether the Company has the option to extend the
Stated Maturity of such Note for one or more whole year
periods (each an "Extension Period") up to but not beyond the
date (the "Final Maturity Date") set forth in such Pricing
Supplement and the basis or formula, if any, for setting the
interest rate or the Spread or Spread Multiplier (as defined
below), as the case may be, applicable to any such Extension
Period.
The Company may exercise such option with respect to a
Note by notifying the Trustee of such exercise at least 45 but
not more than 60 days prior to the Stated Maturity of such
Note in effect prior to the exercise of such option (the
"Original Stated Maturity Date"). No later than 40 days prior
to the Original Stated Maturity Date, the Trustee will mail to
the holder of such Note a notice (the "Extension Notice")
relating to such Extension Period, first class, postage
prepaid, setting forth (i) the election of the Company to
extend the Stated Maturity of such Note, (ii) the new Stated
Maturity, (iii) in the case of a Fixed Rate Note, the interest
rate applicable to the Extension Period or, in the case of a
Floating Rate Note, the Spread or Spread Multiplier applicable
to the Extension Period, and (iv) the provisions, if any, for
redemption during the Extension Period, including the date or
dates on which or the period or periods during which and the
price or prices at which such redemption may occur during the
Extension Period. Upon the mailing by the Trustee of an
Extension Notice to the holder of a Note, the Stated Maturity
of such Note shall be extended automatically as set forth in
the Extension Notice, and, except as modified by the Extension
Notice and as described in the next paragraph, such Note will
have the same terms as prior to the mailing of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days
prior to the Original Stated Maturity Date for a Note, the
4
<PAGE>
Company may, at its option, revoke the interest rate, in the
case of a Fixed Rate Note, or the Spread or Spread Multiplier,
in the case of a Floating Rate Note, provided for in the
Extension Notice and establish a higher interest rate, in the
case of a Fixed Rate Note, or a higher Spread or Spread
Multiplier, in the case of a Floating Rate Note, for the
Extension Period by mailing or causing the Trustee to mail
notice of such higher interest rate or higher Spread or Spread
Multiplier, as the case may be, first class, postage prepaid,
to the holder of such Note. Such notice shall be irrevocable.
All Notes with respect to which the Original Stated Maturity
Date is extended will bear such higher interest rate, in the
case of a Fixed Rate Note, or higher Spread or Spread
Multiplier, in the case of a Floating Rate Note, for the
Extension Period.
If the Company elects to extend the Stated Maturity of a
Note, the holder of such Note may, if provided for in the
applicable Pricing Supplement, have the option to elect
repurchase of such Note by the Company on the Original Stated
Maturity Date at a price equal to the principal amount thereof
plus any accrued interest to such date.
(g) RATES OF INTEREST; INTEREST PAYMENT DATES; REGULAR
RECORD DATES; ACCRUAL OF INTEREST.
(i) RATES OF INTEREST. Interest-bearing Notes will
bear interest at either a fixed rate (the "Fixed Rate Notes")
or a rate determined by reference to one or more Base Rates
(as defined below) which may be adjusted by a Spread or Spread
Multiplier (the "Floating Rate Notes") specified in the
applicable Floating Rate Note or the applicable Pricing
Supplement. In no event will the rate of interest payable on
any Fixed Rate Note or Floating Rate Note be in excess of the
maximum rate of interest permitted by applicable law.
Discount Notes may be issued at significant discounts from
their principal amount payable at maturity and some Discount
Notes may be zero coupon Notes which will bear no interest,
except in the case of default in payment of principal upon
acceleration or redemption (if
5
<PAGE>
applicable), or may bear no interest for a specified period
following the date of issue.
(ii) INTEREST PAYMENT DATES. Unless otherwise
specified in a Note and the applicable Pricing Supplement,
interest on Fixed Rate Notes will be payable semiannually in
arrears on February l and August 1 of each year, commencing
with the first Interest Payment Date next succeeding the date
of original issue, and at Maturity. Interest on Floating Rate
Notes will be payable in arrears on the Interest Payment Dates
applicable to such Note and at Maturity. Notwithstanding the
foregoing, if the date of original issue of a Note is between
a Regular Record Date and the related Interest Payment Date,
the first payment of interest on such Note will be made on the
Interest Payment Date immediately following the next
succeeding Regular Record Date to the registered holder on
such next succeeding Regular Record Date.
Except as provided below or in the applicable
Pricing Supplement, interest will be payable, in the case of a
Floating Rate Note which resets (l) daily, weekly or monthly,
on the third Wednesday of each month or on the third Wednesday
of March, June, September and December of each year, as
specified in the applicable Floating Rate Note and in the
applicable Pricing Supplement; (2) quarterly, on the third
Wednesday of March, June, September and December of each year;
(3) semiannually, on the third Wednesday of each of the two
months specified in the Floating Rate Note and in the
applicable Pricing Supplement; and (4) annually, on the third
Wednesday of the month specified in the Floating Rate Note and
in the applicable Pricing Supplement; and, in each case, at
Maturity.
If any Interest Payment Date (other than an
Interest Payment Date occurring on the Maturity Date) for a
Floating Rate Note falls on a day that is not a Business Day
with respect to such Note, such Interest Payment Date will be
postponed to the following day that is a Business Day with
respect to such Note, except that, in the case of a
6
<PAGE>
LIBOR Note (or a Note for which LIBOR (as defined below) is
the applicable Base Rate), if such Business Day is in the next
succeeding calendar month, such Interest Payment Date shall be
the immediately preceding day that is a Business Day with
respect to such Floating Rate Note. If the Maturity of a
Floating Rate Note falls on a day that is not a Business Day
with respect to such Note, the payment of principal and
interest may be made on the next succeeding Business Day with
respect to such Note and no interest on such payment shall
accrue for the period from and after the Maturity.
If any Interest Payment Date or Maturity of a
Fixed Rate Note falls on a day that is not a Business Day with
respect to such Fixed Rate Note, the payment due on such
Interest Payment Date or at Maturity will be made on the
following day that is a Business Day with respect to such
Fixed Rate Note as if it were made on the date such payment
was due and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or
Maturity, as the case may be.
(iii) REGULAR RECORD DATES. Unless otherwise
specified in an applicable Pricing Supplement, with respect to
Fixed Rate Notes, the Regular Record Dates for interest
payable on each February l and August 1 will be the
immediately preceding January 15 and July 15 (whether or not a
Business Day), respectively. Unless otherwise specified in a
Floating Rate Note, the Regular Record Date or Dates for
interest payable on such Floating Rate Note will be the
fifteenth day (whether or not a Business Day) immediately
preceding the related Interest Payment Date or Dates.
(iv) ACCRUAL OF INTEREST. Unless otherwise specified
in an applicable Pricing Supplement, each Note will bear
interest from the date of original issue at the rate per
annum, or, in the case of a Floating Rate Note, pursuant to
the interest rate formula stated therein, until the principal
thereof is paid or made available for payment. Each interest
payment shall be the amount of interest accrued from
7
<PAGE>
and including the most recent Interest Payment Date in respect
of which interest has been paid or duly provided for (or from
and including the date of original issue if no interest has
been paid or duly provided for with respect to such Note) to
but excluding the next succeeding Interest Payment Date (an
"Interest Accrual Period").
(h) PLACE OF PAYMENT; REGISTRATION OF TRANSFER AND EXCHANGE;
NOTICES TO COMPANY.
(i) PLACE OF PAYMENT. Payment of the principal of
and interest on Definitive Notes will be made at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The
City of New York, or at any other office or agency designated
by the Company for such purpose; PROVIDED, HOWEVER, that
at the option of the Company, payment of interest due (other
than at Maturity) may be made by check mailed to the address
of the person entitled thereto as such address shall appear in
the register of Securities. Payments of principal and any
interest on Notes in book-entry form represented by a Global
Security or Securities will be made by the Company through the
Trustee to the Depository or its nominee, as the case may be,
as the holder of the Global Security or Securities
representing such Notes in book-entry form.
(ii) REGISTRATION OF EXCHANGE AND TRANSFER.
Definitive Notes may be presented for exchange and
registration of transfer at the Corporate Trust Office of the
Trustee in the Borough of Manhattan, The City of New York, or
at the office of any transfer agent hereafter designated by
the Company for such purpose. Ownership of beneficial
interests in Notes in book-entry form represented by a Global
Security or Securities will be shown on, and the transfer of
that ownership will be effected only through, records
maintained by the Depository and its participants. Owners of
beneficial interests in Notes in book-entry form represented
by a Global Security or Securities will not be considered the
owners or holders of such Notes under the Indenture.
8
<PAGE>
(iii) NOTICES TO COMPANY. Notices and demands to or
upon the Company in respect to the Notes and the Indenture may
be served at The Walt Disney Company, 500 S. Buena Vista
Street, Burbank, California 91521, Attention: Legal
Department.
(i) OPTIONAL REDEMPTION. If so provided in the Note or an
applicable Pricing Supplement, such Note may, prior to its Stated
Maturity, be subject to redemption, in whole or in part, at the
option of the Company on the terms set forth in the Note or the
applicable Pricing Supplement, as the case may be.
(j) SINKING FUND. Unless otherwise specified in an
applicable Pricing Supplement, the Notes will not be subject to any
sinking fund or analogous provision.
(k) DENOMINATIONS. The Notes are issuable in denominations
of U.S. $1,000 and any amount in excess thereof which is an integral
multiple of U.S. $1,000.
(l) PRINCIPAL AND INTEREST PAYABLE IN DOLLARS. Unless
otherwise specified in a Note or an applicable Pricing Supplement
providing for payments of principal and interest to be made in one
or more foreign or composite currencies, the payment of the
principal of and any interest on the Notes will be payable in U.S.
dollars.
(m) DETERMINATION OF INTEREST ON FLOATING RATE NOTES.
(i) BASE RATES. Unless otherwise specified in an
applicable Pricing Supplement, interest on a Floating Rate
Note will be determined by reference to a "Base Rate," which
may be one or more of the following: (l) the Commercial Paper
Rate (as defined below), in which case such Note will be a
"Commercial Paper Rate Note"; (2) LIBOR, in which case such
Note will be a "LIBOR Note"; (3) the CD Rate (as defined
below), in which case such Note will be a "CD Rate Note"; (4)
the Federal Funds Rate (as defined below), in which case such
Note will be a "Federal Funds Rate Note"; (5) the Treasury
Rate (as defined be-
9
<PAGE>
low), in which case such Note will be a "Treasury Rate Note";
(6) the Prime Rate (as defined below), in which case such Note
will be a "Prime Rate Note"; (7) the CMT Rate (as defined
below), in which case such Note will be a "CMT Rate Note"; or
(8) such other Base Rate or interest rate formula as may be
set forth in the applicable Pricing Supplement. In addition,
a Floating Rate Note may bear interest calculated by reference
to the lowest of two or more Base Rates determined in the same
manner as the Base Rates are determined for the types of Notes
described above. Each Floating Rate Note will specify the
Base Rate or Rates applicable thereto.
(ii) CALCULATION OF RATE BY REFERENCE TO BASE RATE
AND, AS APPLICABLE, SPREAD, SPREAD MULTIPLIER AND INDEX
MATURITY. The interest rate on each Floating Rate Note will
be calculated by reference to the specified Base Rate or the
lowest of two or more specified Base Rates, in either case
plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any. The "Spread" is the number of basis points
to be added to or subtracted from the related Base Rate or
Rates applicable to such Floating Rate Note. The "Spread
Multiplier" is the percentage of the related Base Rate or
Rates to be multiplied to determine the applicable interest
rate on such Floating Rate Note. The "Index Maturity" is the
period to maturity of the instrument or obligation with
respect to which the related Base Rate or Rates are
calculated. Each Floating Rate Note and the applicable
Pricing Supplement will specify the Index Maturity and the
Spread or Spread Multiplier, if any, applicable thereto.
(iii) INTEREST RESET PERIODS; INTEREST RESET DATE.
Each Floating Rate Note and the applicable Pricing Supplement
will specify whether the rate of interest on such Floating
Rate Note will be reset daily, weekly, monthly, quarterly,
semiannually or annually (each, an "Interest Reset Period")
and the date on which such interest rate will be reset (each,
an "Interest Reset Date"). Unless otherwise specified in a
Floating Rate Note and the applicable Pricing
10
<PAGE>
Supplement, the Interest Reset Date will be, in the case of a
Floating Rate Note which resets (l) daily, each Business Day;
(2) weekly, the Wednesday of each week (with the exception of
weekly reset Treasury Rate Notes, which reset the Tuesday of
each week, except as specified in paragraph (iv) below); (3)
monthly, the third Wednesday of each month; (4) quarterly, the
third Wednesday of March, June, September and December of each
year; (5) semiannually, the third Wednesday of each of the two
months specified in such Pricing Supplement; and (6) annually,
the third Wednesday of the month specified in such Pricing
Supplement. If any Interest Reset Date for any Floating Rate
Note would otherwise be a day that is not a Business Day, such
Interest Reset Date will be postponed to the next succeeding
day that is a Business Day, except that in the case of a LIBOR
Note (or a Note for which LIBOR is the applicable Base Rate),
if such Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the last Business Day in the
preceding month.
(iv) INTEREST DETERMINATION DATE. The interest rate
applicable to each Interest Reset Period commencing on the
Interest Reset Date or Dates with respect to such Interest
Reset Period will be the rate determined on the applicable
"Interest Determination Date." Unless otherwise specified in
an applicable Pricing Supplement, the Interest Determination
Date with respect to a Commercial Paper Rate Note (the
"Commercial Paper Interest Determination Date"), a CD Rate
Note (the "CD Interest Determination Date"), a Federal Funds
Rate Note (the "Federal Funds Interest Determination Date"), a
Prime Rate Note (the "Prime Rate Interest Determination Date")
and a CMT Rate Note (the "CMT Interest Determination Date")
will be the second Business Day preceding each Interest Reset
Date and the Interest Determination Date with respect to a
LIBOR Note (the "LIBOR Interest Determination Date") will be
the second London Business Day preceding each Interest Reset
Date. Unless otherwise specified in an applicable Pricing
Supplement, the Interest Determination Date with respect to a
Treasury Rate Note (the "Treasury Rate Interest Determi-
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<PAGE>
nation Date"), will be the day in the week in which the
Interest Reset Date falls on which day Treasury Bills (as
defined below) normally would be auctioned or, if no such
auction is held for a particular week, the first Business Day
of that week; PROVIDED, HOWEVER, that if, as a result of a
legal holiday, an auction is held on the Friday of the week
preceding the Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and
PROVIDED, FURTHER, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall
instead be the first Business Day immediately following such
auction. Unless otherwise specified in the applicable Pricing
Supplement, the Interest Determination Date pertaining to a
Note the interest rate of which is determined with reference
to two or more Base Rates will be the first Business Day which
is at least two Business Days prior to such Interest Reset
Date for such Note on which each Base Rate shall be
determinable. Each Base Rate shall be determined and compared
on such date, and the applicable interest rate shall take
effect on the related Interest Reset Date.
(v) MAXIMUM AND MINIMUM LIMITS ON INTEREST RATES.
Any Floating Rate Note and the applicable Pricing Supplement
may specify either or both a maximum limit and a minimum limit
on the rate at which interest may accrue during any Interest
Accrual Period. In addition to any maximum interest rate which
may be applicable to any Floating Rate Note, the interest rate
on Floating Rate Notes will in no event be higher than the
maximum rate permitted by New York law, as the same may be
modified by United States law of general application. This
limit may not apply to Floating Rate Notes in which $2,500,000
or more has been invested.
(vi) INITIAL INTEREST RATE; INTEREST RATE THEREAFTER IN
Effect. The interest rate in effect with respect to a
Floating Rate Note on each day that is not an Interest Reset
Date will be the interest rate determined as of the Interest
Determination Date pertaining to the immediately preceding
Interest Reset Date and the interest rate in effect on any day
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that is an Interest Reset Date will be the interest rate
determined as of the Interest Determination Date pertaining to
such Interest Reset Date, subject in either case to applicable
provisions of law and any maximum or minimum interest rate
limitations referred to above; PROVIDED, HOWEVER, that the
interest rate in effect with respect to a Floating Rate Note
for the period from the date of original issue to the first
Interest Reset Date will be the rate specified as such therein
and in the applicable Pricing Supplement (the "Initial
Interest Rate").
(vii) ACCRUED INTEREST; ACCRUED INTEREST FACTOR.
With respect to each Floating Rate Note, accrued interest is
calculated by multiplying its face amount by an accrued
interest factor. Such accrued interest factor is computed by
adding the interest factor calculated for each day from the
date of issue, or from the last date to which interest has
been paid or duly provided for, to the date for which accrued
interest is being calculated. The interest factor for each
such day is computed by dividing the interest rate applicable
to such day by 360, in the case of Commercial Paper Rate
Notes, LIBOR Notes, CD Rate Notes, Federal Funds Rate Notes
and Prime Rate Notes and by the actual number of days in the
year, in the case of Treasury Rate Notes and CMT Rate Notes.
Unless otherwise specified in an applicable Pricing
Supplement, the interest factor for Notes for which the
interest rate is calculated with reference to two or more Base
Rates will be calculated in each period in the same manner as
if only the lowest of the applicable Base Rates applied.
(viii) ROUNDING OF PERCENTAGES. All percentages
resulting from any calculation on Floating Rate Notes will be
rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a
percentage point rounded upward (e.g., 9.876545% (or
.09876545) will be rounded upward to 9.87655% (or .0987655)),
and all dollar amounts used in or resulting from such
calculation on Floating Rate Notes will be rounded to the
nearest cent (with one-half cent being rounded upward).
13
<PAGE>
(ix) CALCULATION AGENTS; CALCULATION DATE. Unless
otherwise specified in an applicable Pricing Supplement, the
Trustee will be the "Calculation Agent" with respect to all
Floating Rate Notes. Upon the request of the holder of any
Floating Rate Note, the Trustee will provide the interest rate
then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the
next Interest Reset Date with respect to such Floating Rate
Note. If at any time the Trustee is not the Calculation
Agent, the Company will notify the Trustee of each
determination of the interest rate applicable to any such
Floating Rate Note promptly after such determination is made
by any successor Calculation Agent. The "Calculation Date,"
where applicable, pertaining to any Interest Determination
Date is the date by which the applicable interest rate must be
calculated and will be the earlier of (a) the tenth calendar
day after such Interest Determination Date, or, if any such
day is not a Business Day, the next succeeding Business Day
and (b) the Business Day preceding the applicable Interest
Payment Date or Maturity Date, as the case may be.
(x) CALCULATION OF FLOATING RATES. The interest rate
in effect with respect to a Floating Rate Note from the date
of issue to the first Interest Reset Date will be the Initial
Interest Rate. The interest rate for each subsequent Interest
Reset Date will be determined by the Calculation Agent as
follows:
(A) COMMERCIAL PAPER RATE NOTES. Commercial
Paper Rate Notes will bear interest at the interest
rates (calculated with reference to the Commercial Paper
Rate and the Spread or Spread Multiplier, if any)
specified in such Commercial Paper Rate Notes and in an
applicable Pricing Supplement.
(l) Unless otherwise specified in an
applicable Pricing Supplement, "Commercial Paper
Rate" means, with respect to any Com-
14
<PAGE>
mercial Paper Interest Determination Date, the
Money Market Yield (as defined below) on such date
of the rate for commercial paper having the Index
Maturity specified in the applicable Pricing
Supplement as published by the Board of Governors
of the Federal Reserve System in "Statistical
Release H.15(519), Selected Interest Rates" or any
successor publication ("Release H.15(519)") under
the heading "Commercial Paper." In the event that
such rate is not published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to
such Commercial Paper Interest Determination Date,
then the Commercial Paper Rate will be the Money
Market Yield on such Commercial Paper Interest
Determination Date of the rate for commercial
paper of the Index Maturity specified in the
applicable Pricing Supplement as published by the
Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any
successor publication ("Composite Quotations")
under the heading "Commercial Paper." If such rate
is not published in either Release H.15(519) or
the Composite Quotations by 3:00 P.M., New York
City time, on such Calculation Date, then the
Commercial Paper Rate will be calculated by the
Calculation Agent and will be the Money Market
Yield of the arithmetic mean of the offered rates,
as of approximately 11:00 A.M., New York City
time, on such Commercial Paper Interest
Determination Date, of three leading dealers of
commercial paper in New York, New York (which may
include one or more of the Agents) selected by the
Calculation Agent (after consultation with the
Company) for commercial paper of the specified
Index
15
<PAGE>
Maturity placed for an industrial issuer whose
bond rating is "AA," or the equivalent, from a
nationally recognized statistical rating agency;
PROVIDED, HOWEVER, that if the dealers
selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the
rate of interest in effect for the applicable
period will be the same as the interest rate in
effect on such Commercial Paper Interest
Determination Date.
(2) "Money Market Yield" shall be a yield
(expressed as a percentage rounded, if necessary,
to the nearest one hundred-thousandth of a
percent) calculated in accordance with the
following formula:
Money Market Yield = (D X 360)
------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate
for commercial paper quoted on a bank discount basis and
expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest
is being calculated.
(B) LIBOR NOTES. LIBOR Notes will bear interest at
the interest rates (calculated with reference to LIBOR and the
Spread or Spread Multiplier, if any) specified in such LIBOR
Notes and in an applicable Pricing Supplement. Unless
otherwise specified in an applicable Pricing Supplement,
"LIBOR" means the rate determined by the Calculation Agent in
accordance with the following provisions:
(1) With respect to a LIBOR Interest
Determination Date, LIBOR will be, as specified in the
applicable Pricing Supplement, either: (a) the
arithmetic mean of the offered rates for deposits in the
Index Currency having the Index Maturity desig-
16
<PAGE>
nated in the applicable Pricing Supplement, commencing
on the second London Business Day immediately following
that LIBOR Interest Determination Date, that appear on
the Designated Reuters LIBOR Page (as defined below) as
of 11:00 A.M., London time, on that LIBOR Interest
Determination Date, if at least two such offered rates
appear on the Designated Reuters LIBOR Page ("LIBOR
Reuters"), or (b) the rate for deposits in the Index
Currency having the Index Maturity designated in the
applicable Pricing Supplement, commencing on the second
London Business Day immediately following that LIBOR
Interest Determination Date, that appears on the
Designated Telerate LIBOR Page (as defined below) as of
11:00 A.M., London time, on that LIBOR Interest
Determination Date ("LIBOR Telerate"). "Designated
Reuters LIBOR Page" means the display on the Reuters
Monitor Money Rates Service for the purpose of
displaying the London interbank rates of major banks for
the applicable Index Currency. "Designated Telerate
LIBOR Page" means the display on the Dow Jones Telerate
Service for the purpose of displaying London interbank
rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified
in the applicable Pricing Supplement, LIBOR for the
applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency,
Page 3750) had been specified. If fewer than two
offered rates appear on the Designated Reuters LIBOR
Page, or if no rate appears on the Designated Telerate
LIBOR Page, as applicable, LIBOR in respect of that
LIBOR Interest Determination Date will be determined as
if the parties had specified the rate described in (2)
below.
(2) If fewer than two offered rates appear on the
Designated Reuters LIBOR Page, or if no rate appears on
the Designated Telerate LIBOR Page, as applicable, LIBOR
will be determined as of approxi-
17
<PAGE>
mately 11:00 A.M., London time, on such LIBOR Interest
Determination Date on the basis of the rate at which
deposits in the applicable Index Currency having the
Index Maturity specified in the applicable Pricing
Supplement are offered to prime banks in the London
interbank market by four major banks in the London
interbank market selected by the Calculation Agent
(after consultation with the Company) commencing on the
second London Business Day immediately following such
LIBOR Interest Determination Date and in a principal
amount equal to an amount that is representative for a
single transaction in such market at such time. The
Calculation Agent will request the principal London
office of each of such banks to provide a quotation of
its rate. If at least two such quotations are provided,
LIBOR for such LIBOR Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than
two quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean
of the rates quoted as of approximately 11:00 A.M. in
the applicable Principal Financial Center (as defined
below), on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center,
selected by the Calculation Agent (after consultation
with the Company) for loans in the applicable Index
Currency to leading European banks, having the specified
Index Maturity, and in a principal amount equal to an
amount of not less than $1,000,000 (or the equivalent in
the Index Currency, if the Index Currency is not the
U.S. dollar) and that is representative for a single
transaction in such market at such time; PROVIDED,
HOWEVER, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this
sentence, rate of interest in effect for the applicable
period will be the same as the interest rate in effect
on such LIBOR Interest Determination Date.
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<PAGE>
"Index Currency" means the currency (including composite
currencies) specified in the applicable Pricing
Supplement as the currency for which LIBOR shall be
calculated. If no such currency is specified in the
applicable Pricing Supplement, the Index Currency shall
be U.S. dollars.
"Principal Financial Center" will generally be the
capital city of the country of the specified Index
Currency, except that with respect to U.S. dollars,
Deutsche Marks, Dutch Guilders, Italian Lire, Swiss
Francs and ECUs, the Principal Financial Center shall be
The City of New York, Frankfurt, Amsterdam, Milan,
Zurich and Luxembourg, respectively.
(C) CD RATE NOTES. CD Rate Notes will bear interest
at the interest rates (calculated with reference to the CD
Rate and the Spread or Spread Multiplier, if any) specified in
such CD Rate Notes and in an applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing
Supplement, "CD Rate" means, with respect to any CD Interest
Determination Date, the rate on such date for negotiable
certificates of deposit having the Index Maturity designated
in the applicable Pricing Supplement as published in Release
H.15(519) under the caption "CDs (Secondary Market)" or, if
not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such CD Interest Determination
Date, the CD Rate will be the rate on such CD Interest
Determination Date for negotiable certificates of deposit of
the Index Maturity designated in the applicable Pricing
Supplement set forth in the Composite Quotations under the
caption "Certificates of Deposit." If by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CD
Interest Determination Date such rate is not yet published in
either Release H.15(519) or the Composite Quotations, then the
CD Rate on such CD Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic
mean of the second-
19
<PAGE>
ary market offered rates as of 10:00 A.M., New York City time,
on such CD Interest Determination Date, of three leading
non-bank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York (which may include one or more
of the Agents) selected by the Calculation Agent (after
consultation with the Company) for negotiable
certificates of deposit of major United States money market
banks (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity
designated in the applicable Pricing Supplement in a
denomination of $5,000,000; PROVIDED, HOWEVER, that if the
dealers selected as aforesaid by the Calculation Agent are not
quoting as set forth above, the rate of interest in effect for
the applicable period will be the same as the interest rate in
effect on such CD Interest Determination Date.
(D) FEDERAL FUNDS RATE NOTES. Federal Funds Rate
Notes will bear interest at the interest rates (calculated
with reference to the Federal Funds Rate and the Spread or
Spread Multiplier, if any) specified in such Federal Funds
Rate Notes and in an applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing
Supplement, "Federal Funds Rate" means, with respect to any
Federal Funds Interest Determination Date, the rate on such
date for Federal Funds as published in Release H.15(519) under
the heading "Federal Funds (Effective)" or, if not so
published by 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Federal Funds Interest Determination
Date, the Federal Funds Rate will be the rate on such Federal
Funds Interest Determination Date as published in the
Composite Quotations under the column "Effective Rate" under
the heading "Federal Funds." If, by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Federal Funds
Interest Determination Date such rate is not yet published in
either Release H.15(519) or the Composite Quotations, the
Federal Funds Rate for such Federal Funds Interest
Determination Date will be calculated by the Calculation Agent
and will be the
20
<PAGE>
arithmetic mean of the rates for the last transaction in
overnight Federal Funds arranged by three leading dealers of
Federal Funds transactions in The City of New York, which
dealers have been selected by the Calculation Agent (after
consultation with the Company), as of 9:00 A.M. New York City
time, on such Federal Funds Interest Determination Date;
PROVIDED, HOWEVER, that, if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set
forth above, the rate of interest in effect for the applicable
period will be the same as the interest rate in effect on such
Federal Funds Interest Determination Date.
(E) TREASURY RATE NOTES. Treasury Rate Notes will
bear interest at the interest rates (calculated with reference
to the Treasury Rate and the Spread or Spread Multiplier, if
any) specified in such Treasury Rate Notes and in an
applicable Pricing Supplement.
Unless otherwise specified in an applicable Pricing
Supplement, "Treasury Rate" means, with respect to any
Treasury Rate Interest Determination Date, the rate applicable
to the most recent auction of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified
in the applicable Pricing Supplement, as such rate is
published in Release H.15(519) under the heading "Treasury
Bills -- auction average (investment)" or, if not published by
3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Rate Interest Determination Date,
the auction average rate (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the specified
Index Maturity are not reported as provided by 3:00 P.M., New
York City time, on such Calculation Date, or if no such
auction is held in a particular week, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent on the basis
of a year of 365 or 366 days, as applicable, and applied on a
daily basis) of
21
<PAGE>
the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date, of three leading primary
United States government securities dealers (which may include
one or more of the Agents) selected by the Calculation Agent
(after consultation with the Company), for the issue of
Treasury Bills with a remaining maturity closest to the
specified Index Maturity; PROVIDED, HOWEVER, that if the
dealers selected as aforesaid by the Calculation Agent are not
quoting as set forth in this sentence, the rate of interest in
effect for the applicable period will be the same as the
interest rate in effect on such Treasury Rate Interest
Determination Date.
(F) PRIME RATE NOTES. Prime Rate Notes will bear
interest at the interest rate (calculated with reference to
the Prime Rate and the Spread or Spread Multiplier, if any)
specified in such Prime Rate Notes and in an applicable
Pricing Supplement, except that the initial interest rate for
each Prime Rate Note will be the rate specified in the
applicable Pricing Supplement.
Unless otherwise specified in an applicable Pricing
Supplement, "Prime Rate" means, with respect to any Prime Rate
Interest Determination Date, the rate set forth in Release
H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not so published by 9:00 A.M., New York
City time, on the Calculation Date, the Prime Rate for such
Prime Rate Interest Determination Date will be the arithmetic
mean of the rates of interest publicly announced by each bank
named on the Reuters Screen USPRIME1 (as defined below) as
such bank's prime rate or base lending rate as in effect for
such Prime Rate Interest Determination Date as quoted on the
Reuters Screen USPRIME1 on such Prime Rate Interest
Determination Date, or if fewer than four such rates appear on
the Reuters Screen USPRIME1 for such Prime Rate Interest
Determination Date, the rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business on
22
<PAGE>
such Prime Rate Interest Determination Date by at least two of
the three major money center banks in The City of New York
selected by the Calculation Agent (after consultation with the
Company) from which quotations are requested. If fewer than
two quotations are provided, the Prime Rate shall be
calculated by the Calculation Agent and shall be determined as
the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks
or trust companies organized and doing business under the laws
of the United States, or any State thereof, in each case
having total equity capital of at least U.S. $500 million and
being subject to supervision or examination by Federal or
State authority selected by the Calculation Agent (after
consultation with the Company) to quote such rate or rates.
Unless otherwise specified in the applicable Pricing
Supplement, "Reuters Screen USPRIME1" means the display
designated as "USPRIME1" on the Reuters Monitor Money Rates
Service (or such other page as may replace the USPRIME1 page
on that service for the purpose of displaying prime rates or
base lending rates of major United States banks).
If in any month the Prime Rate is not published in
Release H.15(519) and the banks or trust companies selected as
aforesaid are not quoting as mentioned in the preceding
paragraph, the "Prime Rate" for such Interest Reset Period
will be the same as the Prime Rate for the immediately
preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable on the
Prime Rate Notes for which the Prime Rate is being determined
shall be the Initial Interest Rate).
(G) CMT RATE NOTES. CMT Rate Notes will bear
interest at the interest rate (calculated with reference to
the CMT Rate and the Spread or Spread Multiplier, if any)
specified in the CMT Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing
Supplement, "CMT Rate" means, with respect to any CMT
23
<PAGE>
Interest Determination Date relating to a CMT Rate Note or any
Floating Rate Note for which the interest rate is determined
with reference to the CMT Rate, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15... Mondays Approximately 3:45 P.M.," under
the column for the Designated CMT Maturity Index (as defined
below) for (i) if the Designated CMT Telerate Page is 7055,
the rate on such CMT Interest Determination Date and (ii) if
the Designated CMT Telerate Page is 7052, the week, or the
month, as applicable, ended immediately preceding the week, or
the month, as applicable in which the related CMT Interest
Determination Date occurs. If such rate is no longer
displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such CMT Interest Determination
Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not
published by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity
rate for the Designated CMT Maturity Index (or other United
States Treasury rate for the Designated CMT Maturity Index)
for the CMT Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M.,
New York City time, on the related Calculation Date, then the
CMT Rate for the CMT Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to
maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New
York City time, on the CMT Interest Determination Date
reported, according to their written records, by three leading
primary United States
24
<PAGE>
government securities dealers (each, a "Reference Dealer") in
The City of New York (which may include any Agent or its
affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent (after
consultation with the Company) and eliminating the highest
quotation (or, in the event of equality, one of the highest)
and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If
the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such CMT Interest Determination
Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30
P.M., New York City time, on the CMT Interest Determination
Date of three Reference Dealers in The City of New York (from
five such Reference Dealers selected by the Calculation Agent
(after consultation with the Company) and eliminating the
highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index
and in an amount of at least $100 million. If three or four
(and not five) of such Reference Dealers are quoting as
described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated;
PROVIDED HOWEVER, that if fewer than three Reference
Dealers selected by the Calculation Agent (after consultation
with the Company) are quoting as described herein, the CMT
Rate will be the CMT Rate in effect on such CMT Interest
Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have
remaining terms to maturity equally
25
<PAGE>
close to the Designated CMT Maturity Index, the quotes for the
Treasury Note with the shorter remaining term to maturity will
be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service on the page designated in the
applicable Pricing Supplement (or any other page as may
replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in
H.15(519)), for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is
specified in the applicable Pricing Supplement, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5,
7, 10, 20 or 30 years) specified in the applicable Pricing
Supplement with respect to which the CMT Rate will be
calculated. If no such maturity is specified in the
applicable Pricing Supplement, the Designated CMT Maturity
Index shall be 2 years.
(n) RENEWABLE NOTES. Notes may be issued from time to time as
variable rate renewable notes (the "Renewable Notes") that will bear
interest at the interest rate (calculated with reference to a Base
Rate and the Spread or Spread Multiplier, if any) specified in the
Renewable Notes and in the applicable Pricing Supplement.
The Renewable Notes will mature on an Interest Payment Date as
specified in the applicable Pricing Supplement (the "Initial
Maturity Date"), unless the maturity of all or any portion of the
principal amount thereof is extended in accordance with the
procedures described below. On the Interest Payment Dates specified
in the applicable Pricing Supplement (each such Interest Payment
Date, an "Election Date"), the maturity of the Renewable Notes will
be extended to the Interest Payment Date occurring twelve months
after such Election Date, unless the holder thereof elects to
terminate the automatic extension of the maturity of the Renewable
Notes or of any portion thereof having a principal amount of $1,000
or any multiple of $1,000 in excess thereof by delivering a
26
<PAGE>
notice of such effect to the Trustee not less than nor more than a
number of days to be specified in the applicable Pricing Supplement
prior to such Election Date. If no such notice period is specified
in the applicable Pricing Supplement, such notice shall be given no
less than 30 days nor more than 60 days prior to such Election Date.
Such option may be exercised with respect to less than the entire
principal amount of the Renewable Notes; provided that the principal
amount for which such option is not exercised is at least $1,000 or
any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, the maturity of the Renewable Notes
may not be extended beyond the Final Maturity Date, as specified in
the applicable Pricing Supplement (the "Final Maturity Date"). If
the holder elects to terminate the automatic extension of the
maturity of any portion of the principal amount of the Renewable
Notes and such election is not revoked as described below, such
portion will become due and payable on the Interest Payment Date
falling six months (unless another period is specified in the
applicable Pricing Supplement) after the Election Date prior to
which the holder made such election.
An election to terminate the automatic extension of maturity
may be revoked as to any portion of the Renewable Notes having a
principal amount of $1,000 or any multiple of $1,000 in excess
thereof by delivering a notice to such effect to the Trustee on any
day following the effective date of the election to terminate the
automatic extension of maturity and prior to the date 15 days before
the date on which such portion would otherwise mature. Such a
revocation may be made for less than the entire principal amount of
the Renewable Notes for which the automatic extension of maturity
has been terminated; provided that the principal amount of the
Renewable Notes for which the automatic extension of maturity has
been terminated and for which such a revocation has not been made is
at least $1,000 or any larger amount that is an integral multiple of
$1,000. Notwithstanding the foregoing, a revocation may not be made
during the period from and including a Record Date to but excluding
the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the
maturity of the Renewable Notes, if not revoked as described
27
<PAGE>
above by the holder making the election or any subsequent holder,
will be binding upon such subsequent holder.
The Renewable Notes may be redeemed in whole or in part at the
option of the Company on the Interest Payment Dates in each year
specified in the applicable Pricing Supplement, commencing with the
Interest Payment Date specified in the applicable Pricing
Supplement, at a redemption price as stated in the applicable
Pricing Supplement, together with accrued and unpaid interest to the
date of redemption. Notwithstanding anything to the contrary in the
Prospectus Supplement, notice of redemption will be provided by
mailing a notice of such redemption to each holder by first class
mail, postage prepaid, at least 180 days (unless otherwise specified
in the applicable Pricing Supplement) prior to the date fixed for
redemption.
(o) AMOUNT PAYABLE UPON DECLARATION OF MATURITY OF DISCOUNT
NOTE. With respect to any Note which is a Discount Note, the
portion of the principal amount of any Discount Note which is
payable upon redemption prior to the Stated Maturity thereof or upon
declaration of acceleration of the Stated Maturity thereof pursuant
to Section 6.2 of the Indenture will be as provided in the
applicable Note.
(p) REGISTER OF SECURITIES; PAYING AGENT. The register of the
Securities for the Notes will be initially maintained at the
Corporate Trust Office of the Trustee. The Company hereby appoints
the Trustee as the initial Paying Agent.
(q) CURRENCY INDEXED NOTES. Notes may be issued, from time to
time, with the principal amount payable on any principal payment
date, or the amount of interest payable on any Interest Payment
Date, to be determined by reference to the value of one or more
currencies (or composite currencies or currency units). In such
event, the currency or currencies (or composite currencies or
currency units) to which the principal amount payable on any
principal payment date or the amount of interest payable on any
Interest Payment Date is indexed, the currency in which the face
amount of the Note is denominated (the "Denominated Currency"), and
the currency in which principal and interest on the Note will
28
<PAGE>
be paid (the "Payment Currency") will be set forth in the applicable
Pricing Supplement. The Denominated Currency and the Payment
Currency may be the same currency or different currencies. Unless
otherwise specified in the applicable Pricing Supplement, interest
on currency indexed Notes shall be paid in the Denominated Currency
based on the face amount of the Note at the rate per annum and on
the dates set forth in the applicable Pricing Supplement. Currency
indexed Notes may include, but are not limited to, Notes of the
types described below.
(i) CURRENCY LINKED SECURITIES ("CLS"). CLS are Notes
pursuant to which the principal amount payable at Stated Maturity
equals the Payment Currency equivalent at Stated Maturity of a
fixed amount of a designated currency (or composite currency or
currency units) (the "Indexed Currency"). The Denominated
Currency, the Indexed Currency and the Payment Currency will be
identified in the applicable Pricing Supplement. In addition, the
fixed amount of the Indexed Currency to which the principal of
the CLS is linked will be set forth in the applicable Pricing
Supplement for a specific representative face amount of the CLS
as well as for the aggregate face amount of all CLS forming part
of the same issue.
If the Payment Currency and the Indexed Currency are not the
same, the Payment Currency equivalent of the Indexed Currency
amount on any date shall be determined in the manner specified in
the applicable Pricing Supplement.
(ii) REVERSE CURRENCY LINKED SECURITIES ("REVERSE CLS").
Reverse CLS are Notes pursuant to which the principal amount
payable at Stated Maturity equals the Payment Currency equivalent
at Stated Maturity of a fixed amount of a designated currency (or
composite currencies or currency units) (the "First Indexed
Currency") minus the amount of the Payment Currency equivalent at
Stated Maturity of a fixed amount of another designated currency
(or composite currency or currency units) (the "Second Indexed
Currency"); PROVIDED, HOWEVER, that the minimum principal
amount payable at Stated Maturity shall be zero.
29
<PAGE>
The Denominated Currency, the First and Second Indexed
Currencies and the Payment Currency will be identified in the
applicable Pricing Supplement. In addition, the fixed amounts of
the First and Second Indexed Currencies to which the principal of
the Reverse CLS is linked shall be set forth in the applicable
Pricing Supplement for a specific representative face amount of
the Reverse CLS as well as for the aggregate face amount of all
Reverse CLS forming part of the same issue.
If the Payment Currency and the First Indexed Currency or the
Second Indexed Currency are not the same, the Payment Currency
equivalent of the First Indexed Currency amount or the Second
Indexed Currency amount, as the case may be, on any date shall be
determined in the manner specified in the applicable Pricing
Supplement.
(iii) MULTICURRENCY CURRENCY LINKED SECURITIES
("MULTICURRENCY CLS"). Multicurrency CLS are Notes pursuant to
which the principal amount payable at Stated Maturity equals the
Payment Currency equivalent at Stated Maturity of a fixed amount
of a designated currency (or composite currency or currency
units) (the "First Indexed Currency") plus or minus the Payment
Currency equivalent at Stated Maturity of a fixed amount of a
second designated currency (or composite currency or currency
units) (the "Second Indexed Currency") plus or minus the Payment
Currency equivalent at Stated Maturity of a fixed amount of a
third designated currency (or composite currency or currency
units) (the "Third Indexed Currency"); PROVIDED, HOWEVER,
that the minimum principal amount payable at Stated Maturity
shall be zero.
The Denominated Currency, each Indexed Currency, the Payment
Currency and whether the fixed amounts of the Second and Third
Indexed Currencies are to be added or subtracted to determine the
principal amount payable at Stated Maturity of the Multicurrency
CLS shall be set forth in the applicable Pricing Supplement. In
addition, the fixed amounts of the First, Second and Third
Indexed Currencies to which the principal of the Multicurrency
CLS is linked shall be set forth in the applicable Pricing
Supplement for a specific representative
30
<PAGE>
face amount of the Multicurrency CLS as well as for the aggregate
face amount of all Multicurrency CLS forming part of the same
issue. As used herein, "Added Indexed Currency" means the First
Indexed Currency and any other Indexed Currency that is added to
determine the principal amount payable at Maturity of the
Multicurrency CLS and a "Subtracted Indexed Currency" means an
Indexed Currency that is subtracted to determine the principal
amount payable at Stated Maturity of the Multicurrency CLS.
If any Added Index Currency or Subtracted Index Currency is
not the same as the Payment Currency, the Payment Currency
equivalent of such Added Indexed Currency amount or Subtracted
Index Currency amount, as the case may be, on any date shall be
determined in the manner specified in the applicable Pricing
Supplement.
(r) AMOUNT PAYABLE UPON DECLARATION OF MATURITY -- CLS, REVERSE
CLS OR MULTICURRENCY CLS. If the principal amount payable at the
Stated Maturity of any CLS, Reverse CLS or Multicurrency CLS shall
be declared due and payable prior to such Stated Maturity, the
amount payable with respect to such Note will be paid in the
Denominated Currency and will equal the face amount of such Note
plus accrued interest to but excluding the date of payment.
(s) COMMODITY LINKED NOTES. Notes may be issued, from time to
time, with the principal amount payable on any principal payment
date, or the amount of interest payable on any Interest Payment
Date, to be determined by reference to one or more commodity prices,
equity indices or other factors and on such other terms as may be
set forth in the applicable Pricing Supplement.
(t) AMORTIZING NOTES. Notes may be issued from time to time
as Amortizing Notes (as defined below). "Amortizing Notes" are
Notes for which payments of principal and interest are made in equal
installments over the life of the Note. Interest on each Amortizing
Note will be computed on the basis of a 360-day year of twelve
30-day months. Payments with respect to Amortizing Notes will be
applied first to interest due and payable thereon and
31
<PAGE>
then to the reduction of the unpaid principal amount thereof. A
table setting forth repayment information in respect of each
Amortizing Note will be provided to the original purchaser and will
be available upon request, to subsequent holders.
(u) PERSONS TO ESTABLISH SPECIFIC TERMS. The principal amount,
any interest rate (or manner in which interest is to be determined),
any Interest Payment Dates, any Regular Record Dates, the Stated
Maturity, any Redemption Date or Dates (and if on any such
Redemption Date a premium is to be paid by the Company, the amount
of such premium) and any other relevant terms of any Note will be
determined by any one of the persons whose name is set forth below
and will be set forth in the applicable Note or Pricing Supplement.
NAME OFFICE SPECIMEN SIGNATURE
- ---- ------ ------------------
Richard D. Nanula Senior Executive Vice President
& Chief Financial Officer /s/ Richard D. Nanula
-----------------------
Matthew J. Hart Senior Vice President and /s/ Matthew J. Hart
Treasurer -----------------------
Mark D. Rozells Vice President and Assistant /s/ Mark D. Rozells
Treasurer -----------------------
Kenneth J. Frier Vice President-Financial Risk /s/ Kenneth J. Frier
Management -----------------------
John Simonelli Director /s/ John Simonelli
-----------------------
Ingrid McConnell Manager /s/ Ingrid McConnell
-----------------------
(v) FORMS. Unless and until another form is established pursuant
to a subsequent Officers' Certificate pursuant to Section 2.1 of the
Indenture, the Notes will be in substantially the forms set forth in
Exhibits A, B, C and D hereto, respectively, and may have such other terms
as are provided herein.
All capitalized terms used in this Officers' Certificate and not
defined herein shall have the meanings set forth in the Indenture.
32
<PAGE>
Each of the undersigned, for himself, states that he has read and is
familiar with the provisions of Article Two of the Indenture relating to the
establishment of a series of Securities thereunder and the establishment of
forms of Securities representing a series of Securities thereunder and, in each
case, the definitions therein relating thereto; that he is generally familiar
with the other provisions of the Indenture and with the affairs of the Company
and its acts and proceedings and that the statements and opinions made by him in
this Certificate are based upon such familiarity; and that he has made such
examination or investigation as is necessary to enable him to determine whether
or not the covenants and conditions referred to above have been complied with;
and in his opinion, such covenants and conditions have been complied with.
IN WITNESS WHEREOF, the undersigned has hereunto signed this
Certificate on behalf of the Company this 7th day of March, 1996.
THE WALT DISNEY COMPANY
By: /s/ Richard D. Nanula
-------------------------------
Name: Richard D. Nanula
Title: Senior Executive Vice President and
Chief Financial Officer
By: /s/ David K. Thompson
-------------------------------
Name: David K. Thompson
Title: Senior Vice President-Assistant
General Counsel
<PAGE>
[FORM OF GLOBAL DISCOUNT REGISTERED SECURITY - UNITED STATES]
REGISTERED REGISTERED
[Logo]
NO. FXR- MEDIUM-TERM NOTE PRINCIPAL AMOUNT:
(Discount) U.S.$
CUSIP:
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Pursuant to Proposed Treasury Regulation Section 1.1275-3, (a) the amount
of the original issue discount on this security is as specified below, (b) the
original issue date is as specified below, (c) the yield to maturity, computed
under the approximate method, is as specified below, and (d) the amount of the
original issue discount allocable to the short accrual period occurring between
and is $ .
ORIGINAL ISSUE DATE: ORIGINAL ISSUE DISCOUNT:
MATURITY DATE: INTEREST DATE:
ORIGINAL ISSUE PRICE: YIELD TO MATURITY:
---------------------
Date:
------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
----------------------------------
Authorized Signatory
1
<PAGE>
THE WALT DISNEY COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
Principal Amount specified above on the Maturity Date specified above and to pay
interest thereon from the Original Issue Date specified above or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually in arrears as specified in the Pricing Supplement, in each
year, commencing with the first Interest Payment Date next succeeding the
Original Issue Date, at the rate per annum set forth above, until the principal
hereof is paid or made available for payment; PROVIDED, HOWEVER, that if the
Original Issue Date of this Note is between a Regular Record Date and the
related Interest Payment Date, the first payment of interest on this Note will
be made on the Interest Payment Date immediately following the next succeeding
Regular Record Date to the registered Holder on such next succeeding Regular
Record Date. Interest payments for this Note will include interest accrued to
but excluding the Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date, as specified in the Pricing Supplement (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date;
provided, however, that interest payable at Maturity shall be payable to the
Person to whom principal shall be payable. If any Interest Payment Date or
Maturity with respect to this Note falls on a day that is not a Business Day,
the payment due on such Interest Payment Date or at Maturity will be made on the
following day that is a Business Day as if it were made on the date such payment
was due and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date or Maturity, as the case may be.
Except as otherwise provided in the Indenture, any interest not punctually paid
or duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") will forthwith cease to be payable to the Holder on the Regular
Record Date with respect to such Interest Payment Date and may either be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee (as defined below), notice of
which shall be given to Holders of Notes not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. In the case of a default in payment of
principal upon acceleration or at Stated Maturity, the Accreted Value (as
defined below) of this Note at the date of such default in payment shall bear
interest at the Yield to Maturity specified above plus 1% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment of
such principal has been made or duly provided for. Such interest will be
computed on the basis of a 360-day year of twelve 30-day months, compounded
semiannually. Payment of the principal of and interest, if any, on this Note
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, and at any other office or
agency maintained by the Company for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that at the option of
the Company, payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the register of
Securities, and PROVIDED, FURTHER, that the Holder of this Note shall be
entitled to receive payments of principal of and interest, if any, on this Note
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15 days
prior to the applicable payment date.
The "Accreted Value" of this Note at any date (the "Calculation Date")
shall be equal to (i) the Original Issue Price of this Note specified above plus
(ii) the accrued amortization of Original Issue Discount specified above
attributable ratably on a daily basis to the period from and including the
Original Issue Date specified above to but excluding the Calculation Date. The
calculation of accrual of Original Issue Discount will be computed on the basis
of a 360-day year of twelve 30-day months, compounded semiannually.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant to
such Indenture. This Security is one of a series designated by the Company as
its Medium-Term Notes. The Indenture does not limit the aggregate principal
amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of March
7, 1996 (herein called the "Indenture"), between the Company and Citibank, N.A.,
a national banking association, as trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency described below where Notes may be
presented for registration of transfer.
This Note may not be redeemed prior to the Maturity Date set forth above.
If an Event of Default with respect to the Notes shall occur and be
continuing, a portion of the principal of this Note may be declared due and
payable in the manner and with the effect provided in the Indenture. Such
portion shall be equal to the Accreted Value of this Note at the time of such
declaration. Upon payment (i) of such Accreted Value and (ii) of interest on any
overdue Accreted Value (to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the payment
of the principal of and interest on this Note shall terminate.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Eight, of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Notes is registrable in the register of Securities,
upon surrender of a Note for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
3
<PAGE>
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 2.11, 3.6 or 9.5 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, The Walt Disney Company has caused this Instrument to
be signed by the signature or facsimile signature of its Chairman of the Board,
one of its Vice Chairmen, its President or one of its Vice Presidents, or its
Treasurer or any Assistant Treasurer and attested by its Secretary or one of its
Assistant Secretaries by his or her signature or a facsimile thereof, and its
corporate seal or a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
(SEAL) THE WALT DISNEY COMPANY
By:
------------------------------
Richard D. Nanula
SENIOR EXECUTIVE VICE PRESIDENT
AND
CHIEF FINANCIAL OFFICER
Attest:
- -----------------------------------------------
Marsha L. Reed
CORPORATE SECRETARY
4
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT ___ Custodian ___
(Cust.)
TEN ENT - as tenants by the entireties
(Minor)
JT TEN - as joint tenants with right
of survivorship and not as tenants Under Uniform Gifts to
in common Minors Act
-------------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Employer
Identification Number of Assignee
- -----------------------------------
- -
- -----------------------------------
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to Transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated: Signature
---------------------------------- -----------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
5
<PAGE>
[FORM OF GLOBAL FIXED RATE REGISTERED SECURITY - UNITED STATES]
REGISTERED REGISTERED
[Logo]
NO. FXR- MEDIUM-TERM NOTE PRINCIPAL AMOUNT:
(FIXED RATE) U.S.$
CUSIP:
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has as interest herein.
ORIGINAL ISSUE DATE: INTEREST DATE:
MATURITY DATE: EARLIEST REDEMPTION DATE:
ORIGINAL ISSUE PRICE: REDEMPTION PRICE:
--------------------------------
Date:
----------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
-------------------------------------------------
Authorized Signatory
1
<PAGE>
THE WALT DISNEY COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
Principal Amount specified above on the Maturity Date specified above and to pay
interest thereon from the Original Issue Date specified above or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually in arrears as specified in the Pricing Supplement, in each
year, commencing with the first Interest Payment Date next succeeding the
Original Issue Date, at the rate per annum set forth above, until the principal
hereof is paid or made available for payment; PROVIDED, HOWEVER, that if the
Original Issue Date of this Note is between a Regular Record Date and the
related Interest Payment Date, the first payment of interest on this Note will
be made on the Interest Payment Date immediately following the next succeeding
Regular Record Date to the registered Holder on such next succeeding Regular
Record Date. Interest payments for this Note will include interest accrued to
but excluding the Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date, which shall be specified in the Pricing Supplement
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date; PROVIDED, HOWEVER, that interest payable at Maturity
shall be payable to the Person to whom principal shall be payable. If any
Interest Payment Date or Maturity with respect to this Note falls on a day that
is not a Business Day, the payment due on such Interest Payment Date or at
Maturity will be made on the following day that is a Business Day as if it were
made on the date such payment was due and no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date or Maturity,
as the case may be. Except as otherwise provided in the Indenture, any interest
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") will forthwith cease to be payable to the Holder on
the Regular Record Date with respect to such Interest Payment Date and may
either be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee (as defined
below), notice of which shall be given to Holders of Notes not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal
of and interest, if any, on this Note will be made at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City of
New York, and at any other office or agency maintained by the Company for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities, and PROVIDED, FURTHER, that the Holder
of this Note shall be entitled to receive payments of principal of and interest,
if any, on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 days prior to the applicable payment date.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant to
such Indenture. This Security is one of a series designated by the Company as
its Medium-Term Notes. The Indenture does not limit the aggregate principal
amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of March
7, 1996 (herein called the "Indenture"), between the Company and Citibank, N.A.,
a national banking association, as trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency described below where Notes may be
presented for registration of transfer.
This Note may not be redeemed prior to the Earliest Redemption Date set
forth above. If no Earliest Redemption Date is so set forth, this Note is not
redeemable prior to the Maturity Date. This Note is redeemable at any time on or
after the Earliest Redemption Date set forth above at the option of the Company,
in whole or from time to time in part, upon not less than 30 nor more than 60
days' notice mailed to the registered Holder hereof, at the Redemption Price
equal to the amount set forth above, together in each case with accrued interest
to the Redemption Date.
Notwithstanding the preceding paragraph, installments of interest whose
Stated Maturity is prior to the Redemption Date of any Note will be payable to
the Holder of such Note, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Dates referred to above, all as
provided in the Indenture.
All notices of redemption shall state the Redemption Date, the Redemption
Price, if fewer than all the outstanding Notes with the same Original Issue
Date, Interest Rate and Stated Maturity are to be redeemed, the identification
(and, in the case of partial redemption, the principal amounts) of Notes to be
redeemed, that on the Redemption Date the Redemption Price will become due and
payable upon each Note, or portion thereof, to be redeemed, that interest on
each Note, or portion thereof, called for redemption will cease to accrue on the
Redemption Date and the place or places where Notes may be surrendered for
redemption. If fewer than all of the Notes with the same Original Issue Date,
Interest Rate and Stated Maturity are to be redeemed at any time, selection of
such Notes for redemption will be made by the Trustee by such method as the
Trustee shall deem fair and appropriate.
In the event of redemption of this Note in part only, a new Note or Notes
of like tenor for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
For all purposes of this Note and the Indenture, unless the context
otherwise requires, all provisions relating to the redemption by the Company of
Notes shall relate, in the case of any Notes redeemed or to be redeemed by the
Company only in part, to the portion of the principal amount of such Notes which
has been or is to be so redeemed.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount
3
<PAGE>
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all the Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Eight, of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Notes is registrable in the register of Securities,
upon surrender of a Note for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 2.11, 3.6 or 9.5 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
4
<PAGE>
IN WITNESS WHEREOF, The Walt Disney Company has caused this Instrument to
be signed by the signature or facsimile signature of its Chairman of the Board,
one of its Vice Chairmen, its President or one of its Vice Presidents, or its
Treasurer or any Assistant Treasurer and attested by its Secretary or one of its
Assistant Secretaries by his or her signature or a facsimile thereof, and its
corporate seal or a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
(SEAL) THE WALT DISNEY COMPANY
By:
--------------------------------
Richard D. Nanula
SENIOR EXECUTIVE VICE PRESIDENT
AND
CHIEF FINANCIAL OFFICER
Attest:
- --------------------------------------
Marsha L. Reed
CORPORATE SECRETARY
5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT ___ Custodian ___
(Cust.)
TEN ENT - as tenants by the entireties
(Minor)
JT TEN - as joint tenants with right
of survivorship and not as tenants Under Uniform Gifts to
in common Minors Act
-----------------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Employer
Identification Number of Assignee
- ----------------------------------------------
- -
- ----------------------------------------------
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to Transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated: Signature
---------------------------------- -----------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
6
<PAGE>
[FORM OF GLOBAL FLOATING RATE REGISTERED SECURITY - UNITED STATES]
REGISTERED REGISTERED
[LOGO]
REGISTERED NO. FLR- MEDIUM-TERM NOTE PRINCIPAL AMOUNT:
(FLOATING RATE) U.S.$
CUSIP:
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co. has an interest herein.
ORIGINAL ISSUE DATE: ORIGINAL ISSUE PRICE:
MATURITY DATE: EARLIEST REDEMPTION DATE:
INITIAL MATURITY DATE (for Renewable Notes):
FINAL MATURITY DATE (for Renewable Notes):
INITIAL INTEREST RATE: REDEMPTION PRICE:
BASE RATE OR RATES: INTEREST PAYMENT DATES:
____ COMMERCIAL PAPER RATE
____ LIBOR:
____ Reuters Monitor Money Rates Service
____ Dow Jones Telerate Service REGULAR RECORD DATES:
____ Index Currency
____ CD RATE
____ FEDERAL FUNDS RATE INTEREST PAYMENT PERIOD:
____ TREASURY RATE ____ Monthly
____ PRIME RATE ____ Quarterly
____ CMT RATE
____ Dow Jones Telerate Service Page 7055
____ Dow Jones Telerate Service Page 7052
____ Week
____ Month ____ Semiannually
____ Annually
____ CMT Maturity Index:______________
____ OTHER:___________________________
SPREAD:
(Indicate plus or minus INTEREST RESET PERIOD:
and number of basis points) ____ Daily
SPREAD MULTIPLIER: % ____ Weekly
INDEX MATURITY: ____ Monthly
____ 1 Month ____ Quarterly
____ 3 Months ____ Semiannually
____ 6 Months ____ Annually
____ 1 Year
____ OTHER:______________________________ INTEREST RESET DATES:
______________________________ CALCULATION AGENT:
____ CITIBANK, N.A.
MAXIMUM INTEREST RATE: % ____ OTHER:______________
MINIMUM INTEREST RATE: %
--------------------------------
1
<PAGE>
Dated:
-----------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
----------------------------------
Authorized Signatory
2
<PAGE>
THE WALT DISNEY COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
Principal Amount specified above on the Maturity Date specified above and to pay
interest thereon from the Original Issue Date specified above or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for at a rate per annum equal to the Initial Interest Rate specified above until
the first Interest Reset Date specified above following the Original Issue Date
specified above and thereafter at a rate determined in accordance with the
provisions below under the heading "Determination of Commercial Paper Rate,"
"Determination of LIBOR," "Determination of CD Rate," "Determination of Federal
Funds Rate," "Determination of Treasury Rate," "Determination of CMT Rate" or
"Determination of Prime Rate" depending upon whether the applicable Base Rate
specified above is the Commercial Paper Rate, LIBOR, CD Rate, Federal Funds
Rate, Treasury Rate, CMT Rate or Prime Rate, which rate may be adjusted by
adding or subtracting the Spread or multiplying the Base Rate by the Spread
Multiplier depending on whether a Spread or Spread Multiplier is specified
above, until the principal hereof is paid or duly made available for payment.
The "Spread," if any, is the number of basis points to be added to or subtracted
from the Base Rate or Rates, as specified above, and the "Spread Multiplier," if
any, is the percentage of the Base Rate or Rates, as specified above, by which
such Base Rate or Rates are to be multiplied. The "Index Maturity," if any, is
the period to maturity of the instrument or obligation with respect to which the
related Base Rate or Rates are calculated, as designated above. If more than one
Base Rate is specified above, the applicable Base Rate shall be the lowest of
such Base Rates on the Interest Determination Date. The Company will pay
interest in arrears monthly, quarterly, semiannually or annually as specified
above under "Interest Payment Period," commencing with the first Interest
Payment Date specified above next succeeding the Original Issue Date and
thereafter on the Interest Payment Dates as specified above, and at Maturity.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture (as defined below), be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
set forth above (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date; PROVIDED, HOWEVER, that interest payment
at Maturity shall be payable to the Person to whom principal shall be payable.
If the Maturity of this Note falls on a day that is not a Business Day, the
payment of principal and interest may be made on the next succeeding Business
Day, and no interest on such payment shall accrue for the period from and after
the Maturity. Except as otherwise provided in the Indenture, any interest not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") will forthwith cease to be payable to the Holder on the
Regular Record Date with respect to such Interest Payment Date and may either be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee (as defined
below), notice of which shall be given to Holders of Notes not less than ten
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. Payment of the
principal of and interest, if any, on this Note will be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, and at any other office or agency maintained by the
Company for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company, payment
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the register of Securities, and
PROVIDED, FURTHER, that the Holder of this Note shall be entitled to receive
payments of principal of and interest, if any, on this Note by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 days prior to the applicable
payment date.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
3
<PAGE>
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant
to such Indenture. This Security is one of a series designated by the Company
as its Medium-Term Notes. The Indenture does not limit the aggregate principal
amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
March 7, 1996 (herein called the "Indenture"), between the Company and
Citibank, N.A., a national banking association, as trustee (herein called
the "Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency described below where Notes may be
presented for registration of transfer.
This Note may not be redeemed prior to the Earliest Redemption Date set
forth above. If no Earliest Redemption Date is so set forth, this Note is not
redeemable prior to the Maturity Date. This Note is redeemable at any time on or
after the Earliest Redemption Date set forth above at the option of the Company,
in whole or from time to time in part, upon not less than 30 nor more than 60
days' notice mailed to the registered Holder hereof, at the Redemption Price
equal to the amount set forth above, together in each case with accrued interest
to the Redemption Date.
Notwithstanding the preceding paragraph, installments of interest whose
Stated Maturity is prior to the Redemption Date of any Note will be payable to
the Holder of such Note, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Dates referred to above, all as
provided in the Indenture.
All notices of redemption shall state the Redemption Date, the Redemption
Price, if fewer than all the outstanding Notes with the same Original Issue
Date, Base Rate or Rates and Stated Maturity are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of Notes to be redeemed, that on the Redemption Date the Redemption Price will
become due and payable upon each Note, or portion thereof, to be redeemed, that
interest on each Note, or portion thereof, called for redemption will cease to
accrue on the Redemption Date and the place or places where Notes may be
surrendered for redemption. If fewer than all of the Notes with the same
Original Issue Date, Base Rate or Rates and Stated Maturity are to be redeemed
at any time, selection of such Notes for redemption will be made by the Trustee
by such method as the Trustee shall deem fair and appropriate.
In the event of redemption of this Note in part only, a new Note or Notes
of like tenor for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
For all purposes of this Note and the Indenture, unless the context
otherwise requires, all provisions relating to the redemption by the Company of
Notes shall relate, in the case of any Notes redeemed or to be redeemed by the
Company only in part, to the portion of the principal amount of such Notes which
has been or is to be so redeemed.
Commencing with the first Interest Reset Date specified above following
the Original Issue Date, the rate at which interest on this Note is payable
shall be adjusted daily, weekly, monthly, quarterly, semiannually or annually as
specified above under "Interest Reset Period." If any Interest Reset Date
specified above would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next succeeding day that is a
Business Day, except that if the rate of interest on this Note shall be
determined with reference to the provisions of the heading "Determination of
LIBOR" below, and such Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the last Business Day in the preceding month.
If any Interest Payment Date (other than an Interest Payment Date occurring on
the Maturity Date) specified above falls on a day that is not a Business Day,
such Interest Payment Date shall be the following day that is a Business Day,
except that if the rate of interest on the Note shall be determined with
reference
4
<PAGE>
to the provisions of the heading "Determination of LIBOR" below, and such
Business Day is in the next succeeding calendar month, such Interest Payment
Date shall be the immediately preceding day that is a Business Day. "Business
Day" means any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or required by
law or executive order to close in The City of New York; PROVIDED, HOWEVER,
that with respect to Notes the payment of which is to be made in a Denominated
Currency other than U.S. dollars, such day is also not a day on which banking
institutions are authorized or required by law or executive order to close in
the principal financial center of the country of such Denominated Currency (or,
in the case of the European Currency Unit ("ECU"), is not a day designated as an
ECU Non-Settlement Day by the ECU Banking Association or otherwise generally
regarded in the ECU interbank market as a day on which payments in ECUs shall
not be made); PROVIDED, HOWEVER, that, with respect to LIBOR Notes, such day
is also a London Business Day (as defined below). "London Business Day" means
any day (i) if the Index Currency (as defined below) is other than ECU, on which
dealings in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is ECU, that is not designated as an ECU
Non-Settlement Day by the ECU Banking Association or otherwise generally
regarded in the ECU interbank market as a day on which payments in ECUs shall
not be made. The interest rate applicable to each Interest Reset Period
commencing on the Interest Reset Date or dates with respect to such Interest
Reset Period will be the rate determined on the applicable "Interest
Determination Date" determined as specified below. The rate of interest in
effect with respect to this Note on each day that is not an Interest Reset Date
will be the interest rate determined as of the Interest Determination Date
pertaining to the immediately preceding Interest Reset Date and the interest
rate in effect on any day that is an Interest Reset Date will be the interest
rate determined as of the Interest Determination Date pertaining to such
Interest Reset Date, subject in either case to any applicable provisions of law
and any Maximum Interest Rate or Minimum Interest Rate limitations specified
above; PROVIDED, HOWEVER, that the interest rate in effect with respect to
this Note for the period from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate specified above.
In addition to any Maximum Interest Rate specified above, the interest
rate on this Note will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States law of general
application.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on this Note will be
rounded to the nearest cent (with one-half cent being rounded upward).
DETERMINATION OF COMMERCIAL PAPER RATE. If the Commercial Paper Rate is the
Base Rate or one of the Base Rates specified above, the interest rate payable
with respect to this Note shall be calculated by the Calculation Agent with
reference to the Commercial Paper Rate and the Spread or Spread Multiplier, if
any, specified above, in accordance with the following provisions:
"Commercial Paper Rate" means, with respect to any Interest
Determination Date specified below (a "Commercial Paper Rate Interest
Determination Date"), the Money Market Yield (as defined below) on such
date of the rate for commercial paper having the Index Maturity specified
above as published by the Board of Governors of the Federal Reserve system
in "Statistical Release H.15(519), Selected Interest Rates" or any
successor publication ("Release H.15(519)") under the heading "Commercial
Paper." In the event that such rate is not published by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Commercial
Paper Rate Interest Determination Date, then the Commercial Paper Rate
will be the Money Market Yield on such Commercial Paper Interest
Determination Date of the rate for commercial paper of the Index Maturity
specified above as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite
Quotations") under the heading "Commercial Paper." If such rate is not
published in either Release H.15(519) or the Composite Quotations by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial
Paper Rate will be calculated by the Calculation Agent and will be the
Money Market Yield of the arithmetic mean of the offered rates, as of
approximately 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date, of three leading dealers of commercial paper
in New York, New York selected by the Calculation Agent
5
<PAGE>
(after consultation with the Company) for commercial paper of the Index
Maturity specified above placed for an industrial issuer whose bond rating
is "AA," or the equivalent, from a nationally recognized statistical
rating agency; PROVIDED, HOWEVER, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the rate of interest in effect for the applicable period will be
the same as the interest rate in effect on such Commercial Paper Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded, if necessary, to the nearest one hundred-thousandth of a percent)
calculated in accordance with the following formula:
Money Market Yield = D X 360
------- X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal and "M" refers
to the actual number of days in the interest period for which interest is
being calculated.
DETERMINATION OF LIBOR. If LIBOR is the Base Rate or one of the Base Rates
specified above, the interest rate payable with respect to this Note shall be
calculated by the Calculation Agent with reference to LIBOR and the Spread or
Spread Multiplier, if any, specified above, in accordance with the following
provisions:
With respect to any Interest Determination Date specified below (a
"LIBOR Interest Determination Date"), LIBOR will be determined on the
basis of either: (a) the arithmetic mean of the offered rates for deposits
in the Index Currency having the Index Maturity specified above,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, which appear on the Designated Reuters
LIBO Page (as defined below) as of 11:00 A.M., London time, on that LIBOR
Interest Determination Date, if at least two such offered rates appear on
the Designated Reuters LIBO Page ("LIBO Reuters"), or (b) the rate for
deposits in the Index Currency having the Index Maturity specified above,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, which appears on the Designated
Telerate LIBO Page (as defined below) as of 11:00 A.M., London time, on
that LlBOR Interest Determination Date ("LIBO Telerate"). "Designated
Reuters LIBO Page" means the display on the Reuters Monitor Money Rates
Service for the purpose of displaying London interbank rates of major
banks for the Index Currency. "Designated Telerate LIBO Page" means the
display on the Dow Jones Telerate Service for the purpose of displaying
London interbank rates of major banks for the Index Currency. If neither
LIBO Reuters nor LIBO Telerate is specified above, LIBOR will be
determined as if LIBO Telerate (and, if the U.S. dollar is the Index
Currency, Page 3750) had been specified. If fewer than two offered rates
appear on the Designated Reuters LIBO Page, or if no rate appears on the
Designated Telerate LIBO Page, as applicable, LIBOR in respect of that
LlBOR Interest Determination Date will be determined as if the parties had
specified the rate described below.
If fewer than two offered rates appear on the Designated Reuters
LIBO Page or if no rate appears on the Designated Telerate LIBO Page, as
applicable, LIBOR will be determined as of approximately 11:00 A.M.,
London time, on such LlBOR Interest Determination Date on the basis of the
rate at which deposits in the Index Currency having the Index Maturity
specified above are offered to prime banks in the London interbank market
by four major banks in the London interbank market selected by the
Calculation Agent (after consultation with the Company) commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date and in a principal amount equal to an amount that is
representative for the single transaction in such market at such time. The
Calculation Agent will request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such quotations
are provided, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted as of approximately 11:00 A.M. in the
applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent (after consultation with the Company)
for loans in the Index Currency to leading European banks, having the
specified Index Maturity, and in a principal amount equal to an amount of
not less than $1,000,000 (or the equivalent in the Index
6
<PAGE>
Currency, if the Index Currency is not the U.S. dollar) and that is
representative for a single transaction in such market at such time,
PROVIDED, HOWEVER, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the rate
of interest in effect for the applicable period will be the same as the
interest rate in effect on such LIBOR Interest Determination Date.
"Index Currency" means the index currency (including composite
currencies) specified above as the currency for which LIBOR shall be
calculated. If no such Index Currency is specified above, the Index
Currency shall be U.S. dollars.
"Principal Financial Center" will generally be the capital city of
the country of the specified Index Currency, except that with respect to
U.S. dollars, Deutsche Marks, Dutch Guilders, Italian Lire, Swiss Francs
and ECUs, the Principal Financial Center shall be The City of New York,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
DETERMINATION OF CD RATE. If the CD Rate is the Base Rate specified above,
the interest rate payable with respect to this Note shall be calculated by the
Calculation Agent with reference to the CD Rate and the Spread or Spread
Multiplier, if any, specified above, in accordance with the following
provisions:
"CD Rate" means, with respect to any Interest Determination Date
specified below (a "CD Interest Determination Date"), the rate on such
date for negotiable certificates of deposit having the Index Maturity
designated above, as such rate published in Release H.15(519) under the
caption "CDs (Secondary Market)" or, if not yet published by 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, the CD Rate will be the rate on such CD Interest
Determination Date for negotiable certificates of deposit of the Index
Maturity specified above set forth in the Composite Quotations under the
caption "Certificate of Deposit." If by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such CD Interest Determination Date
such rate is not yet published in either Release H.15(519) or the
Composite Quotations, then the CD Rate on such CD Interest Determination
Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such CD Interest Determination Date, of three
leading non-bank dealers in negotiable U.S. dollar certificates of deposit
in The City of New York (which may include one or more of the Agents)
selected by the Calculation Agent (after consultation with Disney) for
negotiable certificates of deposit of major United States money market
banks (in the market for negotiable certificates of deposit) with a
remaining maturity closest to the Index Maturity specified above in a
denomination of $5,000,000; PROVIDED, HOWEVER, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as set
forth above, the rate of interest in effect for the applicable period will
be the same as the interest rate in effect on such CD Interest
Determination Date.
DETERMINATION OF FEDERAL FUNDS RATE. If the Federal Funds Rate is the Base
Rate specified above, the interest rate payable with respect to this Note shall
be calculated by the Calculation Agent with reference to the Federal Funds Rate
and the Spread or Spread Multiplier, if any, specified above, in accordance with
the following provisions:
"Federal Funds Rate" means, with respect to any Interest
Determination Date specified below (a "Federal Funds Interest
Determination Date"), the rate on that day for Federal Funds as such rate
is published in Release H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 9:00 A.M., New York City time, on
the Calculation Date pertaining to such Federal Funds Interest
Determination Date, the Federal Funds Rate will be the rate on such
Federal Funds Interest Determination Date as published in the Composite
Quotations under column "Effective Rate" under the heading "Federal
Funds." If, by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Interest Determination Date such rate is
not yet published in either Release H.15(519) or the Composite Quotations,
the Federal Funds Rate for such Federal Funds Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic
mean of the rates for the last transaction in overnight Federal Funds
arranged by three leading dealers of Federal Funds transactions in The
City of New York, which dealers have been selected by the Calculation
Agent (after consultation with Disney), as of 9:00 A.M., New York City
time, on such Federal Funds Interest Determination Date; PROVIDED,
HOWEVER, that, if the dealers selected as aforesaid by the Calculation
Agent are not quoting as
7
<PAGE>
mentioned as set forth above, the rate of interest in effect for the
applicable period will be the same as the interest rate in effect on such
Federal Funds Interest Determination Date.
DETERMINATION OF TREASURY RATE. If the Treasury Rate is the Base Rate
specified above, the interest rate payable with respect to this Note shall be
calculated by the Calculation Agent with reference to the Treasury Rate and the
Spread or Spread Multiplier, if any, specified above, in accordance with the
following provisions:
"Treasury Rate" means, with respect to any Interest Determination
Date specified below (a "Treasury Rate Interest Determination Date"), the
rate applicable to the most recent auction of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified
above, as such rate is published in Release H.15(519) under the heading
"Treasury Bills - auction average (investment)" or, if not published by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Treasury Rate Interest Determination Date, the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) as otherwise announced by the
United States Department of the Treasury. In the event that the results of
the auction of Treasury Bills having the Index Maturity specified above
are not reported as provided by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held in a particular week, then
the Treasury Rate shall be calculated by the Calculation Agent and shall
be a yield to maturity (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) of
the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent (after consultation
with the Company), for the issue of Treasury Bills with a remaining
maturity closest to the Index Maturity specified above; PROVIDED,
HOWEVER, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of interest
in effect for the applicable period will be the interest rate in effect on
such Treasury Rate Interest Determination Date.
DETERMINATION OF PRIME RATE. If the Prime Rate is the Base Rate or one of the
Base Rates specified above, the interest rate payable with respect to this Note
shall be calculated by the Calculation Agent with reference to the Prime Rate
and the Spread or Spread Multiplier, if any, specified above, in accordance with
the following provisions:
"Prime Rate" means, with respect to any Interest Determination Date
specified below (a "Prime Rate Interest Determination Date"), the rate set
forth in Release H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 A.M., New York City time,
on the Calculation Date, the Prime Rate for such Prime Rate Interest
Determination Date will be the arithmetic mean of the rates of interest
publicly announced by each bank named on the Reuters Screen USPRIME1 (as
defined below) as such bank's prime rate or base lending rate as in effect
for such Prime Rate Interest Determination Date as quoted on the Reuters
Screen USPRIME1 on such Prime Rate Interest Determination Date, or if
fewer than four such rates appear on the Reuters Screen USPRIME1 for such
Prime Rate Interest Determination Date, the rate shall be the arithmetic
mean of the prime rates quoted on the basis of the actual number of days
in the year divided by 360 as of the close of business on such Prime Rate
Interest Determination Date by at least two of the three major money
center banks in The City of New York selected by the Calculation Agent
(after consultation with Disney) from which quotations are requested. If
fewer than two quotations are provided, the Prime Rate shall be calculated
by the Calculation Agent and shall be determined as the arithmetic mean on
the basis of the prime rates in The City of New York by the appropriate
number of substitute banks or trust companies organized and doing business
under the laws of the United States, or any State thereof, in each case
having total equity capital of at least U.S. $500 million and being
subject to supervision or examination by Federal or State authority
selected by the Calculation Agent (after consultation with Disney) to
quote such rate or rates. Unless otherwise specified in the applicable
Pricing Supplement, "Reuters Screen USPRIME1" means the display designated
as "USPRIME1" on the Reuters Monitor Money Rates Service (or such other
page as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States
banks).
8
<PAGE>
If in any month the Prime Rate is not published in Release H.15(519) and
the banks or trust companies selected as aforesaid are not quoting as mentioned
in the preceding paragraph, the "Prime Rate" for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable on the Prime Rate Notes for which the Prime Rate is being determined
shall be the Initial Interest Rate).
DETERMINATION OF CMT RATE. If CMT Rate is the Base Rate or one of the Base
Rates specified above, the interest rate payable with respect to this Note shall
be calculated by the Calculation Agent with reference to the CMT Rate and the
Spread or Spread Multiplier, if any, specified above, in accordance with the
following provisions:
"CMT Rate" means, with respect to any Interest Determination Date
specified below (a "CMT Interest Determination Date"), the rate displayed
on the Designated CMT Telerate Page (as defined below) under the caption
"...Treasury Constant Maturities...Federal Reserve Board Release H.15...
Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Interest Determination Date and (ii) if
the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the related CMT
Interest Determination Date occurs. If such rate is no longer displayed
on the relevant page, or if not displayed by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT
Interest Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by
3:00 P.M., New York City time, on the related Calculation Date, then the
CMT Rate for such CMT Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the
CMT Interest Determination Date with respect to such Interest Reset Date
as may then be published by either the Board of Governors of the Federal
Reserve System or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate for the
CMT Interest Determination date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30 P.M.,
New York City time, on the CMT Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of
New York (which may include any Agent or its affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent (after consultation with Disney) and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for the most recently issued direct noncallable fixed rate obligations of
the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one
year. If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such CMT Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based
on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent (after
consultation with Disney) and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, on of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to
the Designated CMT Maturity Index and in an amount of at least $100
million. If three or four (and not five) of such Reference Dealers are
quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor
the lowest of such quotes will be eliminated; PROVIDED HOWEVER, that if
fewer than three Reference Dealers selected by the Calculation Agent
(after consultation with Disney) are quoting as described herein, the CMT
Rate will be the CMT Rate in effect on such CMT Interest Determination
Date. If two Treasury Notes with an original maturity as described in the
third preceding sentence have
9
<PAGE>
remaining terms to maturity equally close to the Designated CMT Maturity
Index, the quotes for the Treasury Note with the shorter remaining term to
maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in the applicable Pricing
Supplement (or any other page as may replace such page on that service for
the purpose of displaying Treasury Constant Maturities as reported in
H.15(519)), for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519). If no such page is specified in the applicable
Pricing Supplement, the Designated CMT Telerate Page shall be 7052, for
the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or
30 years) specified above with respect to which the CMT Rate will be
calculated. If no such maturity is specified above, the Designated CMT
Maturity Index shall be 2 years.
RENEWABLE NOTES. If this Note is designated as a Renewable Note above (a
"Renewable Note"), the following provisions will apply:
A Renewable Note will bear interest at the Base Rate specified above
and the interest rate payable with respect to a Renewable Note shall be
calculated by the Calculation Agent with reference to the specified Base
Rate or Base Rates and the Spread or Spread Multiplier, if any, specified
above.
A Renewable Note will mature on an Interest Payment Date as
specified above (the "Initial Maturity Date"), unless the maturity of all
or any portion of the principal amount hereof is extended in accordance
with the procedures described below. On the Interest Payment Dates
specified above (each such Interest Payment Date, an "Election Date"), the
maturity of a Renewable Note will be extended to the Interest Payment Date
occurring twelve months after such Election Date, unless the Holder hereof
elects to terminate the automatic extension of the maturity of a Renewable
Note or of any portion hereof having a principal amount of $1,000 or any
multiple of $1,000 in excess thereof by delivering a notice of such effect
to the Trustee not less than nor more than a number of days to be
specified in the Pricing Supplement prior to such Election Date. Such
option may be exercised with respect to less than the entire principal
amount of a Renewable Note; provided that the principal amount for which
such option is not exercised is at least $1,000 or any larger amount that
is an integral multiple of $1,000. Notwithstanding the foregoing, the
maturity of a Renewable Note may not be extended beyond the Final Maturity
Date specified above (the "Final Maturity Date"). If the Holder hereof
elects to terminate the automatic extension of the maturity of any portion
of the principal amount of a Renewable Note and such election is not
revoked as described below, such portion will become due and payable on
the Interest Payment Date falling six months (unless another period is
specified in the Pricing Supplement) after the Election Date prior to
which the Holder made such election.
An election to terminate the automatic extension of maturity may be
revoked as to any portion of a Renewable Note having a principal amount of
$1,000 or any multiple of $1,000 in excess thereof by delivering a notice
to such effect to the Trustee on any day following the effective date of
the election to terminate the automatic extension of maturity and prior to
the date 15 days before the date on which such portion would otherwise
mature. Such a revocation may be made for less than the entire principal
amount of a Renewable Note for which the automatic extension of maturity
has been terminated; provided that the principal amount of a Renewable
Note for which the automatic extension of maturity has been terminated and
for which such a revocation has not been made is at least $1,000 or any
larger amount that is an integral multiple of $1,000. Notwithstanding the
foregoing, a revocation may not be made during the period from and
including a Record Date to but excluding the immediately succeeding
Interest Payment Date.
An election to terminate the automatic extension of the maturity of
a Renewable Note, if not revoked as described above by the Holder hereof
making the election or any subsequent Holder, will be binding upon such
subsequent Holder.
10
<PAGE>
A Renewable Note may be redeemed in whole or in part at the option
of the Company on the Interest Payment Dates in each year specified above,
commencing with the Interest Payment Date specified above, at a redemption
price as stated above, together with accrued and unpaid interest to the
date of redemption. Notwithstanding anything to the contrary herein,
notice of redemption will be provided by mailing a notice of such
redemption to each Holder by first class mail, postage prepaid, at least
180 days (unless otherwise specified in the Pricing Supplement) prior to
the date fixed for redemption.
The Calculation Agent shall calculate the interest rate on this Note in
accordance with the foregoing on or before each Calculation Date and shall
promptly thereafter notify the Company of such interest rate. Any such
calculation by the Calculation Agent shall be conclusive and binding on the
Company, the Trustee and the Holder of this Note, absent manifest error.
The interest rate applicable to each Interest Reset Period commencing on
the Interest Reset Date or Dates with respect to such Interest Reset Period will
be the rate determined on the applicable "Interest Determination Date." The
Commercial Paper Interest Determination Date, the CD Interest Determination
Date, the Federal Funds Interest Determination Date, the Prime Rate Interest
Determination Date and the CMT Interest Determination Date will be the second
Business Day preceding such Interest Reset Date. The LIBOR Interest
Determination Date will be the second London Business Day preceding such
Interest Reset Date. The Treasury Rate Interest Determination Date will be the
day in the week in which the Interest Reset Date fails on which day Treasury
Bills would normally be auctioned or, if no such auction is held for a
particular week, the first Business Day of that week; PROVIDED, HOWEVER, that
if, as a result of a legal holiday, an auction is held on the Friday of the week
preceding the Interest Reset Date, the related Interest Determination Date shall
be such preceding Friday; and PROVIDED, FURTHER, that if an auction shall fall
on any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day immediately following such auction. The Interest
Determination Date pertaining to a Note the interest rate of which is determined
with reference to two or more Base Rates will be the first Business Day which is
at least two Business Days prior to such Interest Reset Date for such a Note on
which each Base Rate shall be determinable. Each Base Rate shall be determined
and compared on such date, and the applicable interest rate shall take effect on
the related Interest Reset Date.
The "Calculation Date," if applicable, pertaining to any Interest
Determination Date, shall be the earlier of (a) the tenth calendar day after
such Interest Determination Date, or, if any such day is not a Business Day, the
next succeeding Business Day and (b) the Business Day preceding the applicable
Interest Payment Date or Maturity Date, as the case may be. The Trustee will,
upon the request of the Holder of this Note, provide to such Holder the interest
rate hereon then in effect and, if determined, the interest rate which will
become effective as of the next Interest Reset Date.
Interest payments for this Note will include interest accrued to but
excluding the Interest Payment Date. Accrued interest hereon from the Original
Issue Date or from the last date to which interest hereon has been paid or duly
provided for, as the case may be, shall be an amount calculated by multiplying
the face amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
from the Original Issue Date or from the last date to which interest shall have
been paid or duly provided for, to the date for which accrued interest is being
calculated. The interest factor for each such day shall be computed by dividing
the interest rate applicable to such day by 360, in the case of the Commercial
Paper Rate, LIBOR, CD Rate, Federal Funds Rate and Prime Rate and by the actual
number of days in the year, in the case of the Treasury Rate and CMT Rate.
Unless otherwise specified above, if the interest rate for this Note is
calculated with reference to two or more Base Rates, the interest factor for
this Note will be calculated in each period in the same manner as if only the
lowest of the applicable Base Rates applied.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the
11
<PAGE>
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Eight, of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Notes is registrable in the register of Securities,
upon surrender of a Note for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 2.11, 3.6 or 9.5 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
12
<PAGE>
IN WITNESS WHEREOF, The Walt Disney Company has caused this Instrument to
be signed by the signature or facsimile signature of its Chairman of the Board,
one of its Vice Chairmen, its President or one of its Vice Presidents, or its
Treasurer or any Assistant Treasurer and attested by its Secretary or one of its
Assistant Secretaries by his or her signature or a facsimile thereof, and its
corporate seal or a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
(SEAL) THE WALT DISNEY COMPANY
By:
------------------------------
RICHARD D. NANULA
SENIOR EXECUTIVE VICE PRESIDENT
AND
CHIEF FINANCIAL OFFICER
ATTEST:
- -----------------------------------------------
MARSHA L. REED
CORPORATE SECRETARY
13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT ___ Custodian ____
TEN ENT - as tenants by the entireties (Cust.)
(Minor)
JT TEN - as joint tenants with right
of survivorship and not as tenants Under Uniform Gifts to
in common Minors Act
-----------------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Employer
Identification Number of Assignee
- --------------------------------------------
- -
- --------------------------------------------
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to Transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated: Signature
---------------------------------- -----------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
14
<PAGE>
[FORM OF GLOBAL ZERO COUPON REGISTERED SECURITY - UNITED STATES]
REGISTERED REGISTERED
[LOGO]
NO. FXR- MEDIUM-TERM NOTE PRINCIPAL AMOUNT:
(ZERO COUPON) U.S.$
CUSIP:
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Pursuant to Proposed Treasury Regulation Section 1.1275-3, (a) the amount
of the original issue discount on this security is as specified below, (b) the
original issue date is as specified below, (c) the yield to maturity, computed
under the approximate method, is as specified below, and (d) the amount of the
original issue discount allocable to the short accrual period occurring between
and is $ .
ORIGINAL ISSUE DATE: ORIGINAL ISSUE PRICE:
MATURITY DATE: ORIGINAL ISSUE DISCOUNT:
YIELD TO MATURITY:
--------------------------
Date:
--------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
----------------------------------------------------------
Authorized Signatory
1
<PAGE>
THE WALT DISNEY COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
Principal Amount specified above on the Maturity Date specified above. If
Maturity with respect to this Note falls on a day that is not a Business Day,
the payment due at Maturity will be made on the following day that is a Business
Day as if it were made on the date such payment was due and no interest shall
accrue on the amount so payable for the period from and after Maturity. The
principal of this Note shall not bear interest except in the case of a default
in payment of principal upon acceleration or at Stated Maturity, and in such
case, the Accreted Value (as defined below) of this Note at the date of such
default in payment shall bear interest at the Yield to Maturity specified above
plus 1% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Such interest will be computed on the basis of a 360-day year of twelve
30-day months, compounded semiannually. Payment of the principal of and any such
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
and at any other office or agency maintained by the Company for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; PROVIDED, HOWEVER,
that the Holder of this Note shall be entitled to receive payments of principal
of and any such interest on this Note by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in writing by
the Trustee not less than 15 days prior to the applicable payment date.
The "Accreted Value" of this Note at any date (the "Calculation Date")
shall be equal to (i) the Original Issue Price of this Note specified above plus
(ii) the accrued amortization of Original Issue Discount specified above
attributable ratably on a daily basis to the period from and including the
Original Issue Date specified above to but excluding the Calculation Date. The
calculation of accrual of Original Issue Discount will be computed on the basis
of a 360-day year of twelve 30-day months, compounded semiannually.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant to
such Indenture. This Security is one of a series designated by the Company as
its Medium-Term Notes. The Indenture does not limit the aggregate principal
amount of the Securities.
The Company issued this Note pursuant to an indenture, dated as of March
7, 1996 (herein called the "Indenture"), between the Company and Citibank, N.A.,
a national banking association, as trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency described below where Notes may be
presented for registration of transfer.
This Note may not be redeemed prior to the Maturity Date set forth above.
If an Event of Default with respect to Notes shall occur and be
continuing, a portion of the principal of this Note may be declared due and
payable in the manner and with the effect provided in the Indenture. Such
portion shall be equal to the Accreted Value of this Note at the time of such
declaration. Upon payment (i) of such Accreted Value and (ii) of interest on any
overdue Accreted Value (to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the payment
of the principal of and interest, if any, on this Note shall terminate.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Eight, of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Notes is registrable in the register of Securities,
upon surrender of a Note for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
3
<PAGE>
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 2.11, 3.6 or 9.5 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, The Walt Disney Company has caused this Instrument to
be signed by the signature or facsimile signature of its Chairman of the Board,
one of its Vice Chairmen, its President or one of its Vice Presidents, or its
Treasurer or any Assistant Treasurer and attested by its Secretary or one of its
Assistant Secretaries by his or her signature or a facsimile thereof, and its
corporate seal or a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
(SEAL) THE WALT DISNEY COMPANY
By:
------------------------------
Richard D. Nanula
SENIOR EXECUTIVE VICE PRESIDENT
AND
CHIEF FINANCIAL OFFICER
Attest:
- -----------------------------------------------
Marsha L. Reed
CORPORATE SECRETARY
4
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN
ACT ___ Custodian ____
TEN ENT - as tenants by the entireties (Cust.)
(Minor)
JT TEN - as joint tenants with right
of survivorship and not as tenants Under Uniform Gifts to
in common Minors Act
--------------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Employer
Identification Number of Assignee
- --------------------------------------------
- -
- --------------------------------------------
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to Transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated: Signature
---------------------------------- -----------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
5
