0000912057-01-533295.txt : 20011009
0000912057-01-533295.hdr.sgml : 20011009
ACCESSION NUMBER: 0000912057-01-533295
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 6
CONFORMED PERIOD OF REPORT: 20010924
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20010924
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: WALT DISNEY CO/
CENTRAL INDEX KEY: 0001001039
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990]
IRS NUMBER: 954545390
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0930
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-11605
FILM NUMBER: 1743810
BUSINESS ADDRESS:
STREET 1: 500 SOUTH BUENA VISTA ST
CITY: BURBANK
STATE: CA
ZIP: 91521
BUSINESS PHONE: 8185601000
MAIL ADDRESS:
STREET 1: 500 SOUTH BUENA VISTA ST
CITY: BURBANK
STATE: CA
ZIP: 91521
FORMER COMPANY:
FORMER CONFORMED NAME: DC HOLDCO INC
DATE OF NAME CHANGE: 19950918
8-K
1
a2059822z8-k.txt
8-K
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):
September 24, 2001
----------
THE WALT DISNEY COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OF JURISDICTION OF INCORPORATION)
1-11605 95-4545390
(COMMISSION FILE NUMBER) (IRS EMPLOYER
IDENTIFICATION NO.)
500 South Buena Vista Street, Burbank, California 91521
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(818) 560-1000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Not applicable
(FORMER NAME OR ADDRESS, IF CHANGED SINCE LAST REPORT)
Item 5. Other Events.
On September 24, 2001, The Walt Disney Company, a Delaware corporation
(the "Company"), completed the issuance and sale to the public of (i)
$500,000,000 aggregate principal amount of 3.90% Global Notes due September 15,
2003 (the "3.90% Global Notes"), and (ii) $500,000,000 aggregate principal
amount of 4.50% Global Notes due September 15, 2004 (the "4.50% Global Notes"),
pursuant to an Underwriting Agreement, dated September 17, 2001, between the
Company and the several underwriters set forth therein.
On September 24, 2001, the Company also commenced its $6,500,000,000
Medium-Term Note Program, to allow the Company to issue and sell up to
$6,500,000,000 aggregate principal amount (or an equivalent amount in one or
more foreign or composite currencies or currency units) of Medium-Term Notes,
Series B, Due Nine Months or More from Date of Issue (the "Medium-Term
Notes"), pursuant to a Distribution Agreement, dated September 24, 2001, between
the Company and the several agents set forth therein. The Medium-Term Notes may
be issued as fixed rate notes, floating rate notes or a combination of fixed and
floating rate notes.
Exhibits are filed herewith in connection with the Registration
Statement on Form S-3 (File No. 333-67870), as amended, filed by the Company
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, and declared effective by the Commission on
August 23, 2001, with respect to (i) the Company's issuance and sale of the
3.90% Global Notes and the 4.50% Global Notes and (ii) the securities issuable
pursuant to the Medium-Term Note Program.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
Exhibit No. Description
1.1 Underwriting Agreement, dated September 17, 2001, between the
Company and the several underwriters named therein.
1.2 Distribution Agreement, dated September 24, 2001, between the
Company and the agents named therein.
4.1 Senior Debt Securities Indenture, dated September 24, 2001,
between the Company and Wells Fargo Bank, National Association,
as trustee.
4.2 Officers' Certificate establishing the Company's 3.90% Global
Notes due September 15, 2003, and the Company's 4.50% Global Notes
due September 15, 2004, each as a series under the Senior Debt
Securities Indenture.
2
4.3 Form of 3.90% Global Note due September 15, 2003 (included in
Exhibit 4.2).
4.4 Form of 4.50% Global Note due September 15, 2004 (included in
Exhibit 4.2).
4.5 Officers' Certificate establishing the Medium-Term Notes as a
series of securities under the Senior Debt Securities Indenture.
4.6 Form of Medium-Term Note (Discount) (included in Exhibit 4.5).
4.7 Form of Medium-Term Note (Fixed Rate) (included in Exhibit 4.5).
4.8 Form of Medium-Term Note (Floating Rate) (included in
Exhibit 4.5).
4.9 Form of Medium-Term Note (Zero Coupon) (included in Exhibit 4.5).
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE WALT DISNEY COMPANY
By: /s/ David K. Thompson
-------------------------------
David K. Thompson
Senior Vice President
Assistant General Counsel
Dated: September 24, 2001
4
EXHIBIT INDEX
Exhibit No. Description
1.1 Underwriting Agreement, dated September 17, 2001, between the
Company and the several underwriters named therein.
1.2 Distribution Agreement, dated September 24, 2001, between the
Company and the agents named therein.
4.1 Senior Debt Securities Indenture, dated September 24, 2001,
between the Company and Wells Fargo Bank, National Association,
as trustee.
4.2 Officers' Certificate establishing the Company's 3.90% Global
Notes due September 15, 2003, and the Company's 4.50% Global Notes
due September 15, 2004, each as a series under the Senior Debt
Securities Indenture.
4.3 Form of 3.90% Global Note due September 15, 2003 (included
in Exhibit 4.2).
4.4 Form of 4.50% Global Note due September 15, 2004 (included
in Exhibit 4.2).
4.5 Officers' Certificate establishing the Medium-Term Notes as a
series of securities under the Senior Debt Securities Indenture.
4.6 Form of Medium-Term Note (Discount) (included in Exhibit 4.5).
4.7 Form of Medium-Term Note (Fixed Rate) (included in Exhibit 4.5).
4.8 Form of Medium-Term Note (Floating Rate) (included in
Exhibit 4.5).
4.9 Form of Medium-Term Note (Zero Coupon) (included in Exhibit 4.5).
5
EX-1.1
3
a2059822zex-1_1.txt
EXHIBIT 1.1
EXHIBIT 1.1
UNDERWRITING AGREEMENT
September 17, 2001
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. $500,000,000
aggregate principal amount of its 4.50% Global Notes due September 15, 2004 (the
"Three Year Notes") and U.S. $500,000,000 aggregate principal amount of its
3.90% Global Notes due September 15, 2003 (the "Two-Year Notes" and collectively
with the Three-Year Notes, 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, (i) the principal amount of Three-Year
Notes set forth below opposite their names at a purchase price of 99.750% of the
principal amount thereof plus accrued interest, if any, from September 24, 2001
and (ii) the principal amount of Two-Year Notes set forth below opposite their
names at a purchase price of 99.726% of the principal amount thereof plus
accrued interest, if any, from September 24, 2001:
Principal Amount of
Name Three-Year Notes
---------------------------------------------------- -------------------
Goldman, Sachs & Co. $487,500,000
The Williams Capital Group, L.P. 12,500,000
------------
$500,000,000
============
Principal Amount of
Name Two-Year Notes
---------------------------------------------------- -------------------
Goldman, Sachs & Co. $487,500,000
The Williams Capital Group, L.P. 12,500,000
------------
$500,000,000
============
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
September 24, 2001 or at such other time, not later than 10:00 a.m. (New York
time) on October 8, 2001 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
August 23, 2001, as supplemented by the Prospectus Supplement dated September
17, 2001, including the following:
2
TERMS OF DEBT SECURITIES:
A. THE THREE-YEAR NOTES
Title: 4.50% Global Notes due September 15, 2004
Aggregate Principal Amount: $500,000,000
Initial Offering Price: 100.00%
Purchase Price: 99.750%
Currency of Payment: United States Dollars
Ratings of debt securities included in A (negative outlook)--Standard & Poor's Ratings Services
the Registration Statement: A2 (negative watch)--Moody's Investors Service
Maturity Date: September 15, 2004
Interest Rate: 4.50%
Redemption Provisions: As set forth in the Prospectus Supplement
Interest Payment Dates: March 15 and September 15 commencing March 15, 2002 (interest
accrues from September 24, 2001)
Regular Record Dates: The fifteenth day (whether or not a Business Day) immediately
preceding the related Interest Payment Date
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 Three-Year Notes will constitute a separate series of
senior unsecured debt obligations of the Company issued under
the Indenture, dated as of September 24, 2001 (the
"Indenture"), by and among the Company, as issuer, and Wells
Fargo Bank, 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: N/A
3
B. THE TWO-YEAR NOTES
Title: 3.90% Global Notes due September 15, 2003
Aggregate Principal Amount: $500,000,000
Initial Offering Price: 99.926%
Purchase Price: 99.726%
Currency of Payment: United States Dollars
Ratings of debt securities included in A (negative outlook)--Standard & Poor's Ratings Services
the Registration Statement: A2 (negative watch)--Moody's Investors Service
Maturity Date: September 15, 2003
Interest Rate: 3.90%
Redemption Provisions: As set forth in the Prospectus Supplement
Interest Payment Dates: March 15 and September 15 commencing March 15, 2002 (interest
accrues from September 24, 2001)
Regular Record Dates: The fifteenth day (whether or not a Business Day) immediately
preceding the related Interest Payment Date
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 Two-Year Notes will constitute a separate series of senior
unsecured debt obligations of the Company issued under the
Indenture, dated as of September 24, 2001 (the "Indenture"),
by and among the Company, as issuer, and Wells Fargo Bank,
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: N/A
4
C. OTHER GENERAL PROVISIONS
CONDITIONS TO CLOSING.
Section 5(e) of The Walt Disney Company Underwriting Agreement Standard
Provisions (Debt Securities) dated September 17, 2001 (the "Standard
Provisions") is amended to read as follows:
"(e) COMFORT LETTERS. On the Closing Date, the Underwriters shall have
received letters from the Company's independent certified public
accountants, dated as of the Closing Date and in form and substance
reasonably satisfactory to the Underwriters."
Section 5(f) of the Standard Provisions shall not be applicable.
COVENANTS OF THE COMPANY.
Section 6 of the Standard Provisions 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, 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."
Notices: Notices to the Underwriters shall be directed to the
Representatives c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004, attention of Riva Lapidus; and notices to the Company shall be directed
to it at 500 South Buena Vista Street, Burbank, California 91521, attention of
Vice President and Assistant Treasurer, with copies to the attention of the
Company's Legal Department and to Dewey Ballantine LLP at 1301 Avenue of the
Americas, New York, New York 10019, attention of Morton A. Pierce, Esq.
Except as otherwise notes above, all provisions contained in the
Standard Provisions, a copy of which is attached hereto, are hereby incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein, except that if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
5
Very truly yours,
GOLDMAN, SACHS & CO.,
acting severally on behalf of themselves and
the Underwriters named herein
/s/ Goldman, Sachs & Co.
----------------------------------------------
(Goldman, Sachs & Co.)
Accepted:
THE WALT DISNEY COMPANY
By: /s/ Christine M. McCarthy
-------------------------------------
Name: Christine M. McCarthy
Title: Senior Vice President
and Treasurer
Dated: September 17, 2001
6
THE WALT DISNEY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
September 17, 2001
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 and shall include any related Registration Statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations. 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
1
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 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 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, on or prior to the Closing Date,
the Indenture shall have 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.
2
(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 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, in light of the
circumstances under which they were made, 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
3
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 Restated Certificate of
Incorporation or Bylaws, as amended. 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
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 Restated Certificate of Incorporation or Bylaws, as amended, 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 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 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 and its subsidiaries at the respective dates and for the
respective periods to which they apply. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied, except as set forth in the
Registration Statement and Prospectus. The selected financial data and
the summary historical financial information of Disney, if any,
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 incorporated by reference in the
Registration Statement and the Prospectus. The unaudited pro forma
financial statements, if any, together with the related notes and any
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus, present fairly the
information shown therein and have been compiled
4
on a basis substantially consistent with the audited financial
statements of Disney included or incorporated by reference in the
Registration Statement and the Prospectus; the assumptions on which
such unaudited pro forma financial statements have been prepared are
reasonable; and such unaudited pro forma 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 Enterprises, Inc., 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.
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
5
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 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 Dewey Ballantine LLP,
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 is a corporation validly existing and in good
standing under the laws of the state of Delaware.
(ii) The Company has the 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 by all necessary
corporate action on the part of the Company and duly executed
and delivered by the Company and constitutes a valid and
binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the
qualification that the enforceability of the Indenture is
subject to and may be limited by (a) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws relating to or affecting the enforcement of
creditors' rights generally, (b) general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, (c) provisions of law which
may require that a judgment for money damages rendered by a
court in the United
6
States be expressed only in United States dollars,
(d) requirements that a claim with respect to any Debt
Securities denominated other than in U.S. dollars (or a
judgment denominated other than in U.S. dollars in respect of
such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law and (e) governmental authority to limit, delay
or prohibit the making of payments outside the United States
or in foreign currency, currency units or composite
currencies.
(v) No Governmental Approval is required on the part of the
Company 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 in accordance with the terms
of this Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance
with their terms, subject to the qualification that the
enforceability of the Debt Securities is subject to and may be
limited by (a) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other
similar laws relating to or affecting the enforcement of
creditors' rights generally, (b) general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, (c) provisions of law which
may require that a judgment for money damages rendered by a
court in the United States be expressed only in United States
dollars, (d) requirements that a claim with respect to any
Debt Securities denominated other than in U.S. dollars (or a
judgment denominated other than in U.S. dollars in respect of
such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law and (e) governmental authority to limit, delay
or prohibit the making of payments outside the United States
or in foreign currency, currency units or composite
currencies.
(vii) The Registration Statement has been declared 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 Debt
Securities and the performance by the Company of its
obligations under this Agreement and the Indenture will not
(A) violate the Restated Certificate of Incorporation or
Bylaws, as amended, of the Company, (B) violate any Applicable
Laws or (C) breach or otherwise violate any obligation of or
restriction on the Company under any judgment, decree or
7
order, applicable to the Company and 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 opinion
is expressed as to the securities or Blue Sky laws of the
various jurisdictions in which any of the Debt Securities 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
comply as to form in all material respects with the applicable
requirements of the 1933 Act and the related rules and
regulations of the Commission thereunder then in effect,
except that in each case such counsel need not express an
opinion as to (i) the Incorporated Documents, (ii) the
financial statements, schedules and other financial and
statistical data included or incorporated by reference therein
or excluded therefrom or (iii) the exhibits to the
Registration Statement, including the Form T-1 incorporated by
reference therein.
(x) The statements in the Prospectus under the captions
"Description of Debt Securities" and "Description of the
Notes," insofar as they purport to summarize certain
provisions of documents specifically referred to therein,
fairly present the information required by Form S-3.
(xi) Although the discussion set forth in the Prospectus under
the headings "United States Tax Documentation Requirements for
United States Aliens" and "United States Federal Income Tax
Considerations for United States Aliens" does not purport to
discuss all possible United States Federal income tax
consequences of the purchase, ownership, and disposition of
the Debt Securities, in such counsel's opinion, such
discussion constitutes, in all material respects, a fair and
accurate summary of the United States Federal income tax
consequences of the purchase, ownership, and disposition of
the Debt Securities by the holders addressed therein, based
upon current law and subject to the qualifications set forth
therein.
In rendering the opinions set forth above, such counsel may state that,
with respect to Debt Securities the payments of principal or interest on which
will be determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors, no opinion is expressed with
respect to the Commodity Exchange Act, as amended, or the rules, regulations and
interpretations of the Commodities Futures Trading Commission promulgated
thereunder.
In rendering the opinions set forth 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 such counsel has, in the exercise of customary diligence,
recognized as applicable to the Company or 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 order,
consent, permit or approval of any Governmental Authority pursuant to Applicable
Laws.
8
In addition, such counsel may state that such counsel has not
undertaken to determine independently, and therefore does not assume any
responsibility explicitly or implicitly for, the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the
Registration Statement and Prospectus (except as set forth in clauses (x) and
(xi) above). Such counsel may also state that such counsel has participated in
conferences with representatives of the Company and the Underwriters in the
course of the preparation of the Registration Statement and Prospectus and has
considered the matters required to be stated therein and the statements
contained therein. However, such counsel shall state that, based upon and
subject to the foregoing, nothing has come to such counsel's attention that
causes such counsel to believe that the Registration Statement, as of the time
it 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, as of the date of this
Agreement or as of the Closing Date included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (except in each case as to the financial statements and
schedules and other financial and statistical data included or incorporated by
reference therein or excluded therefrom and, in the case of the Registration
Statement, except as to exhibits thereto (including, without limitation, the
Statement of Eligibility under the Trust Indenture Act of the Trustee on Form
T-1 incorporated by reference therein), as to all of which such counsel need
express no opinion).
(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) 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) Except as set forth in the Prospectus, 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.
(iii) 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.
(iv) To the best of such counsel's knowledge, after reasonable
inquiry, the Company is not in violation of its Restated
Certificate of Incorporation or Bylaws, as amended.
9
(v) To the best of such counsel's knowledge, after reasonable
inquiry, the execution, delivery and 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.
(vi) Each of the Incorporated Documents, as of the date such
document was filed with the Commission, complied as to form in
all material respects with the requirements of the 1934 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
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 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 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 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 or belief with respect to the financial statements, schedules and other
financial data included or incorporated by reference therein, or excluded
therefrom or the exhibits to the Registration Statement, including 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. As used in this Section 5(d), the term
10
"Prospectus" means the Prospectus (as defined herein) in the form first
used to confirm sales of the Debt Securities.
(e) COMFORT LETTERS. At the time of the execution of the Underwriting
Agreement, the Underwriters shall have received letters from the
Company's independent certified public accountants, dated as 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 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 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
11
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 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, in light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, 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
12
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).
(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
13
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 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 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
14
written information furnished to the Company by or on behalf of 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 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
15
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 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, 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) trading in any
securities of the Company has been suspended (other than pursuant to a request
by the
16
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, 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) 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. 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.
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
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.
17
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:
(i) represents and agrees with the Company that (a) it has not
offered or sold and prior to the date six months after the
date of issue of the Notes will not offer or sell any Debt
Securities to persons in the United Kingdom, 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 that have not resulted and will not result in an
offer to the public in the United Kingdom 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 of Great Britain with respect
to anything done by it in relation to the Debt Securities in,
from or otherwise involving the United Kingdom; and (c) it has
only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with
the issuance of the Debt Securities to a person who is of a
kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 or is
a person to whom the document may lawfully be issued or passed
on;
(ii) acknowledges and agrees with the Company that the Debt
Securities have not been registered under the Securities and
Exchange Law of Japan and are not being offered or sold and
may not be offered or sold, directly or indirectly, in Japan
or to or for the account of any resident of Japan, except (1)
pursuant to an exemption from the registration requirements of
the Securities and Exchange Law of Japan and (2) in compliance
with any other applicable requirements of Japanese law;
(iii) agrees that the Debt Securities may not be offered,
sold, transferred or delivered in or from The Netherlands, as
part of their initial distribution or as part of any
re-offering, and neither the Prospectus nor any other document
in respect of the offering may be distributed or circulated in
The Netherlands, other than to individuals or legal entities
which include, but are not limited to, banks, brokers,
dealers, institutional investors and undertakings with a
treasury department, who or which trade or invest in
securities in the conduct of a business or profession; and
(iv) agrees that it has not and will not offer or sell any
Debt Securities or distribute any document or other material
relating to the Debt Securities either directly or indirectly,
to the public or any member of the public in Singapore other
than (1) to an institutional investor or other person
specified in Section 106C of the Companies Act, Chapter 50 of
Singapore (the "Singapore Companies Act"),
18
or (2) to a sophisticated investor in accordance with the
conditions specified in Section 106D of the Singapore
Companies Act or (3) otherwise pursuant to, and in accordance
with the conditions of, any other provision of the Singapore
Companies Act.
(b) In addition to the provisions of subparagraph (a)(i), (ii), (iii)
and (iv) 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
19
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 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, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF
TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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.
20
EX-1.2
4
a2059822zex-1_2.txt
EXHIBIT 1.2
EXHIBIT 1.2
THE WALT DISNEY COMPANY
Medium-Term Notes, Series B
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
September 24, 2001
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Bear, Stearns & Co. Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
HSBC Securities (USA) Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
Dear Ladies and Gentlemen:
The Walt Disney Company, a Delaware corporation (the "Company"),
confirms its agreement with each of Banc of America Securities LLC, Banc One
Capital Markets, Inc., Bear, Stearns & Co. Inc., Credit Suisse First Boston
Corporation, Goldman, Sachs & Co., HSBC Securities (USA) Inc., J.P. Morgan
Securities Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc.
and The Williams Capital Group, L.P. (each an "Agent" and collectively, the
"Agents") with respect to the issue and sale by the Company of its
Medium-Term Notes, Series B (the "Notes"). The Notes are to be issued
pursuant to the Indenture, dated as of September 24, 2001 (the "Indenture"),
between the Company and Wells Fargo Bank, N.A., a national banking
association, as trustee (the "Trustee"). As of the date hereof, the Company
has authorized the issuance and sale of up to U.S. $6,500,000,000 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. 333-67870) 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 abbreviated term sheet as such terms are used
in Rule 434 of the 1933 Act Regulations (each a "Terms Sheet"). The term
"Registration Statement" shall also include any related registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations. 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.
2
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, in light of the circumstances
under which they were made, not misleading.
(ii) The Registration Statement, at the time it became
effective, complied in all material respects with the provisions of the
1933 Act and the 1933 Act Regulations; at the applicable Representation
Date, the Registration Statement and the Prospectus, and any
supplements or amendments thereto, will comply in all material respects
with the provisions of the 1933 Act and the 1933 Act Regulations; and
the Registration Statement and the Prospectus, and any such supplement
or amendment thereto, at all such times did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; except that this representation and warranty does not apply
to statements or omissions in the Registration Statement, the
Prospectus or any preliminary prospectus, or any amendment or
supplement thereto, made in reliance upon information furnished to the
Company in writing by or on behalf of the Agents expressly for use
therein or to those parts of the Registration Statement which
constitute the Trustee's Statement of Eligibility and Qualification on
Form T-1 under the 1939 Act (the "Form T-1"). There is no contract or
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.
3
(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).
(v) 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.
(vi) Each of Disney Enterprises, Inc., 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
4
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 Restated
Certificate of Incorporation or Bylaws, as amended. 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 Restated Certificate of
Incorporation or Bylaws, as amended, 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 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
financial statements, if any, together with the related notes and any
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus, fairly present the
information shown therein and have been compiled on a basis
substantially consistent with the audited financial statements of
Disney included or incorporated by reference in the Registration
5
Statement and the Prospectus; the assumptions on which such unaudited
pro forma financial statements have been prepared are reasonable; and
such unaudited pro forma 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.
(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
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,
6
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 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
7
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.
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 FILING. 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.
8
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Company will deliver to the Agents one signed and as many conformed
copies of the Registration Statement (as originally filed) and of each
amendment thereto (including the Incorporated Documents and any
exhibits filed therewith or incorporated by reference therein) as the
Agents may reasonably request. The Company will furnish to the Agents
as many copies of the Prospectus (as amended or supplemented) as the
Agents shall reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. So long as
the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes, if any event
shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Company, after consultation with counsel
for the Agents, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, 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 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
9
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:
(a) The preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto and all Incorporated Documents;
(b) The preparation, filing and printing of this Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes;
(d) The fees and disbursements of the Trustee and its counsel,
of any calculation agent or exchange rate agent and of The Depository
Trust Company;
(e) The reasonable fees and disbursements of 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;
10
(f) 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 counsel to the Agents
in connection therewith and in connection with the preparation of any
Blue Sky survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection with
solicitations of offers to purchase, or confirmations of sales of, the
Notes;
(h) Any fees charged by rating agencies for the rating of the
Notes;
(i) Any advertising and other out-of-pocket expenses of the
Agents incurred with the prior written approval of the Company; and
(j) 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 Dewey Ballantine LLP,
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 is a corporation validly
existing and in good standing under the laws of the State of
Delaware.
(ii) The Company has the 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 by
all necessary corporate action on the part of the Company and
duly executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to
the
11
qualification that the enforceability of the Indenture is
subject to and may be limited by (a) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws relating to or affecting the enforcement of
creditors' rights generally, (b) general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity, (c) provisions of law which
may require that a judgment for money damages rendered by a
court in the United States be expressed only in United States
dollars, (d) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a judgment
denominated other than in U.S. dollars in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law and
(e) governmental authority to limit, delay or prohibit the
making of payments outside the United States or in foreign
currency, currency units or composite currencies.
(v) No Governmental Approval is required on the
part of the Company in connection with the issuance or sale of
the Notes, other than registration thereof under the 1933 Act,
the 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 the final terms of a
particular Note and its issuance and sale have been
established in accordance with the provisions of the Indenture
and 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 this
Agreement, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms, subject to the qualification that the
enforceability of the Notes is subject to and may be limited
by (a) applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights
generally, (b) general principles of equity, regardless of
whether such enforceability is considered in a proceeding at
law or in equity, (c) provisions of law which may require that
a judgment for money damages rendered by a court in the United
States be expressed only in United States dollars, (d)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a judgment
denominated other than in U.S. dollars in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law and
(e) governmental authority to limit, delay or prohibit the
making of payments outside the United States or in foreign
currency, currency units or composite currencies.
(vii) The Registration Statement has been
declared 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.
12
(viii) The execution and delivery of this
Agreement and the Indenture by the Company, the issuance and
sale of the Notes and the performance by the Company of its
obligations under this Agreement and the Indenture will not
(A) violate the Restated Certificate of Incorporation or
Bylaws, as amended, of the Company, (B) violate any Applicable
Laws or (C) breach or otherwise violate any obligation of or
restriction on the Company under any judgment, decree or
order, applicable to the Company and 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 opinion
is expressed as to the securities or Blue Sky laws of the
various jurisdictions in which any of the Notes are to be
offered.
(ix) The Registration Statement, as of its
effective date, and the Prospectus, as of the date of the
prospectus supplement relating to the Notes, appeared on their
face to comply as to form in all material respects with the
applicable requirements of the 1933 Act and the related
applicable rules and regulations of the Commission thereunder
then in effect, except that in each case such counsel need not
express an opinion as to (i) the Incorporated Documents, (ii)
the financial statements, schedules and other financial and
statistical data included or incorporated by reference therein
or excluded therefrom or (iii) the exhibits to the
Registration Statement, including, without limitation, the
Statement of Eligibility under the 1939 Act of the Trustee on
Form T-1 incorporated by reference therein (the "Form T-1").
(x) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Description of
the Notes," insofar as they purport to summarize certain
provisions of the Notes and the Indenture, fairly present the
information required by Form S-3.
In rendering the opinions set forth above, such counsel may state
that, with respect to Notes the payments of principal or interest on which
will be determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors, no opinion is expressed
with respect to the Commodity Exchange Act, as amended, or the rules,
regulations and interpretations of the Commodities Futures Trading Commission
promulgated thereunder.
In rendering the opinions set forth 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 such counsel has, in the exercise of customary
diligence, recognized as applicable to the Company or 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 order, consent, permit or approval of any
Governmental Authority pursuant to Applicable Laws.
In addition, such counsel may state that such counsel has not
undertaken to determine independently, and therefore does not assume any
responsibility explicitly or implicitly for, the accuracy, completeness or
fairness of the statements contained or incorporated by reference in
13
the Registration Statement and Prospectus (except as set forth in clause (x)
above). Such counsel may also state that such counsel has participated in
conferences with representatives of the Company and the Agents in the course
of the preparation of the Registration Statement and Prospectus and has
considered the matters required to be stated therein and the statements
contained therein. However, such counsel shall state that, based upon and
subject to the foregoing, nothing has come to such counsel's attention that
causes such counsel to believe that the Registration Statement, as of the
time it 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, 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)
includes an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (except in each case as to the
financial statements and schedules and other financial and statistical data
included or incorporated by reference therein or excluded therefrom and, in
the case of the Registration Statement, except as to exhibits thereto
(including, without limitation, the Form T-1, as to all of which such counsel
need express no opinion).
(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) 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) Except as set forth in the Prospectus, 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.
(iii) 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.
(iv) To the best of such counsel's knowledge,
after reasonable inquiry, the Company is not in violation of
its Restated Certificate of Incorporation or Bylaws, as
amended.
(v) To the best of such counsel's knowledge,
after reasonable inquiry, the execution, delivery and
performance of this Agreement and the Indenture will
14
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.
(vi) Each of the Incorporated Documents, as of
the date such document was filed with the Commission, complied
as to form in all material respects with the requirements of
the 1934 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 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 as of the date of this Agreement (and, if the
opinion is being given pursuant to Section 6(b) hereof as a result of the
Company having entered into a Terms Agreement, as of the Settlement Date with
respect to such Terms Agreement) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that such counsel need express
no opinion with respect to the financial statements, schedules and other
financial data included or incorporated by reference 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 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 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
15
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 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
16
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 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 (other than a Current Report on Form 8-K unless delivery of a
certificate is reasonably requested by the Agents with respect to such
filing) incorporated by reference into the Prospectus or the Company
sells Notes to an Agent pursuant to a Terms Agreement, the terms of
which so require, the Company shall use its best efforts to furnish or
cause to be furnished to the Agents or to the Agent party to the Terms
Agreement, as the case may be, promptly following such amendment,
supplement or filing or on the Settlement Date with respect to such
Terms Agreement, as the case may be, a certificate in form satisfactory
to counsel for the Agents to the effect that the statements contained
in the certificate referred to in Section 5(d) hereof, which was last
furnished to the Agents, are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred to in said
Section
17
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 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 the opinions referred to in Section 5(b) shall
expand the opinion rendered pursuant to Section 5(b)(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
18
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)(ii) 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
clause (iii) (other than the information required by clause (B)
thereof, except in the case of a Terms Agreement, the terms of which so
require) and clause (iv) of said Section 5(e) with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company;
PROVIDED, HOWEVER, that if the Registration Statement or the Prospectus
is amended or supplemented primarily to include financial information
as of and for a fiscal quarter, the Company's independent certified
public accountants may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement.
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
19
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 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 of
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; 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 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
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.
20
(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 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
21
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
Relevant Agent shall contribute to such aggregate losses, liabilities,
claims, damages and expenses incurred by the Company and the Relevant 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 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,
22
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, between the date of such Terms Agreement and
the related Settlement Date, 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)
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 such Terms Agreement, 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 such Agent, impracticable to market the Notes or to enforce
contracts for the sale of the Notes, (iv) 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
23
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 9 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:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: MTN Desk
Banc One Capital Markets, Inc.
1 Bank One Plaza
8th Floor, Suite IL1-0595
Chicago, Illinois 60670
Attention: Investment Grade Securities
(312) 732-4645 (voice)
(312) 732-4773 (fax)
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Betsy Malloy
Managing Director, MTN Desk
Credit Suisse First Boston Corporation
Fixed Income Department - 5th Floor
Eleven Madison Avenue
New York, New York 10010
Attention: Jean Fitzgerald
Goldman, Sachs & Co.
85 Broad Street
27th Floor
New York, New York 10004
Attention: Susan Dowling
24
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
Attention: MTN Trading, 10th Floor
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: MTN Department, 12th 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
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Manager, Continuously Offered Products
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Investment Banking Information Center
25
Salomon Smith Barney Inc.
Medium-Term Note Department
388 Greenwich Street
New York, New York 10013
(212) 816-5831 (voice)
(212) 816-0949 (fax)
The Williams Capital Group, L.P.
650 Fifth Avenue, 10th Floor
New York, New York 10019
Attention: Capital Markets
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, INCLUDING WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS
LAW AND NEW YORK CIVIL PRACTICE LAW RULE 327(b).
26
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/ Christine M. McCarthy
-----------------------------------
Name: Christine M. McCarthy
Title: Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED,
as of September 24, 2001:
BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
--------------------------------
Name: Lily Chang
Title: Principal
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Dana R. Levenson
--------------------------------
Name: Dana R. Levenson
Title: Managing Director
BEAR, STEARNS & CO. INC.
By: /s/ David Granville-Smith
--------------------------------
Name: David Granville-Smith
Title: Senior Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Helena M. Willmer
--------------------------------
Name: Helena M. Willmer
Title: Director
/s/ Goldman, Sachs & Co.
------------------------------------
(Goldman, Sachs & Co.)
HSBC SECURITIES (USA) INC.
By: /s/ Thomas M. Quinn
--------------------------------
Name: Thomas M. Quinn
Title: Managing Director
J. P. MORGAN SECURITIES INC.
By: /s/ Robert B. Nordlinger
--------------------------------
Name: Robert B. Nordlinger
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ Martin Goldberg
--------------------------------
Name: Martin Goldberg
Title: Senior Vice President
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
---------------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
---------------------------------
Name: Michael Fusco
Title: Executive Director
SALOMON SMITH BARNEY INC.
By: /s/ Martha D. Bailey
----------------------------------
Name: Martha D. Bailey
Title: Senior Vice President
THE WILLIAMS CAPITAL GROUP, L.P.
By: /s/ David A. Coard
----------------------------------
Name: David A. Coard
Title: Principal
EXHIBIT A
Term(1) Commission 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.
(2) With respect to each Note that is a Discount Security (as defined in
the Indenture), the commission payable to each Agent with respect to
each such Note sold as a result of a solicitation made by such Agent
shall be based on the purchase price of such Note.
A-1
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:
B-1
Final Maturity (for Renewable Notes):
Initial Maturity (for Renewable Notes):
Purchase Price: _____%
Settlement Date and Time:
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:
B-2
EXHIBIT C
THE WALT DISNEY COMPANY
MEDIUM TERM NOTES, SERIES B
ADMINISTRATIVE PROCEDURES
September 24, 2001
The administrative procedures and specific terms of the offering of
Medium-Term Notes, Series B (the "Notes") on a continuing basis by The Walt
Disney Company (the "Issuer") pursuant to the Distribution Agreement, dated
September 24, 2001 (as amended, modified or supplemented from time to time,
the "Distribution Agreement"), between the Issuer and each of Banc of America
Securities LLC, Banc One Capital Markets, Inc., Bear, Stearns & Co. Inc.,
Credit Suisse First Boston Corporation, Goldman, Sachs & Co., HSBC Securities
(USA) Inc., J.P. Morgan Securities Inc., Lehman Brothers Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc. and The Williams Capital Group, L.P. (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
Wells Fargo Bank, N.A., as trustee (the "Trustee"), dated as of September 24,
2001 (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 the Notes, the Indenture or the Distribution Agreement shall be controlling.
Unless otherwise
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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 September
24, 2001, and a Medium-Term Note Certificate Agreement between the Trustee
and DTC, dated May 14, 1991, 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
$500,000,000 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 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 850 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
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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 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,
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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 $500,000,000
in aggregate principal amount, one Global
Security will be authenticated and issued to
represent each $500,000,000 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.
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 two Business Days before 60 days, but
not less than two 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 $500,000,000. If one or more
Book-Entry Notes having an aggregate principal
amount in excess of $500,000,000 would, but for
the preceding sentence, be represented by a
single
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Global Security, then one Global Security will
be issued to represent each $500,000,000
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
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 any Interest
Payment Date for 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
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of each year, as specified in the related Global
Security, and at Stated 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 on Floating
Rate Book-Entry Notes will be made 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 and with respect to Eleventh
District Cost of Funds Rate Notes, 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) 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. In
the case of Eleventh District Cost of Funds Rate
Notes, interest will be payable on the first
calendar day of each March, June, September and
December.
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
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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, Prime Rate Notes, J.J. Kenny Rate Notes,
Eleventh District Cost of Funds Rate Notes and
EURIBOR 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 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, the payment due
on such Interest Payment Date will be made on
the following day that is a Business Day with
respect to such Floating 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,
except that in the case of a Floating Rate
Book-Entry Note that is a LIBOR Note or a
EURIBOR Note (or a Floating Rate Book-Entry Note
for
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which LIBOR or EURIBOR is the applicable Base
Rate), if such Business Day is in the next
succeeding calendar month, the payment due on
such Interest Payment Date will be made on 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 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 Wells Fargo
Bank, N.A., as the Paying Agent, the principal
amount of such Global Security, together with
interest due at such Maturity. Wells Fargo Bank,
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
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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 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 The Issuer has the sole right to accept offers
OF 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 Note sold by the Issuer through an
Agent, as agent, shall
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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
Wells Fargo Bank, 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.
6. Original Issue Price.
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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.
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
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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 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"
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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 For orders of Book-Entry Notes solicited by an
TIMETABLE: Agent, as agent, and accepted by the Issuer for
settlement on the first Business 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 am. 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
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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.
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
C-14
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 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
C-15
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, The Issuer may instruct the Agents to suspend
AMENDMENT OR SUPPLEMENT: 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
C-16
with respect to such Certificated Note (or
Predecessor Security) to which interest has been
paid or 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 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
C-17
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 and except with
respect to Eleventh District Cost of Funds Rate
Notes, 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.
In the case of Eleventh District Cost of Funds
Rate Notes, interest will be payable on the
first calendar day of each March, June,
September and December.
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, Prime Rate Notes, J.J. Kenny Rate Notes,
Eleventh District Cost of Funds Rate Notes and
EURIBOR 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 The Trustee will pay the principal amount of each
Certificated
C-18
INTEREST: 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 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 EURIBOR Note (or a
Floating Rate Certificated Note for which LIBOR
or EURIBOR is the applicable Base Rate), if such
Business Day is in the next succeeding calendar
month, such Interest
C-19
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 The Issuer has the sole right to accept offers
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,
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
C-20
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;
e. Interest Reset Period;
f. Interest Payment Dates;
g. Index Maturity;
h. Interest Payment Period;
i. Calculation Agent (if other than
Wells Fargo Bank, 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
C-21
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 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
C-22
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
acknowledgment 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
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 For offers of Certificated Notes solicited by an
TIMETABLE: 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
C-23
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 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, The Issuer may instruct the Agents to suspend
AMENDMENT OR SUPPLEMENT: 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
C-24
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 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.
C-25
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 September 24, 2001 (the "Distribution Agreement"), among the Company
and Banc of America Securities LLC, Banc One Capital Markets, Inc., Bear,
Stearns & Co. Inc., Credit Suisse First Boston Corporation, Goldman, Sachs &
Co., HSBC Securities (USA) Inc., J.P. Morgan Securities Inc., Lehman Brothers
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley &
Co. Incorporated, Salomon Smith Barney Inc. and The Williams Capital Group,
L.P. (collectively, the "Agents"), relating to the offering from time to time
by the Company directly or through the Agents of up to $6,500,000,000
aggregate principal amount of Medium-Term Notes, Series B of the Company,
hereby certify on behalf of the Company that:
1. 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 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 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 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.
Capitalized terms used but not defined herein have the meanings given in
the Distribution Agreement.
Appendix I-1
IN WITNESS WHEREOF, I have hereunto signed my name this _____ day of
__________.
By:
-----------------------------------
Name:
Title:
Appendix I-2
Appendix II
FORM OF RELIANCE LETTER OF COUNSEL
[Date]
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Bear, Stearns & Co. Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
HSBC Securities (USA) Inc.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
Re: THE WALT DISNEY COMPANY MEDIUM-TERM NOTES, SERIES B
Dear Sirs:
[We] [I] have delivered an opinion to you dated __________ as counsel to
The Walt Disney Company (the "Company"), pursuant to Section [5(a)][5(b)] of
the Distribution Agreement, dated as of September 24, 2001 (the "Distribution
Agreement"), among the Company and Banc of America Securities LLC, Banc One
Capital Markets, Inc., Bear, Stearns & Co. Inc., Credit Suisse First Boston
Corporation, Goldman, Sachs & Co., HSBC Securities (USA) Inc., J.P. Morgan
Securities Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc.
and The Williams Capital Group, L.P. 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,
Appendix II-1
EX-4.1
5
a2059822zex-4_1.txt
EXHIBIT 4.1
EXHIBIT 4.1
THE WALT DISNEY COMPANYT
SENIOR DEBT SECURITIES
--------------------------------------------------------------------------------
INDENTURE
DATED AS OF SEPTEMBER 24, 2001
--------------------------------------------------------------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
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)...............................................................12.6
(f)................................................................4.3
315 (a)................................................................7.1
(b)..........................................................7.5; 12.2
(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.
317 (a)(1).............................................................6.8
------------------
N.A. means not applicable.
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
i
(a)(2).............................................................6.9
(b)................................................................2.6
318 (a)...............................................................12.1
ii
TABLE OF CONTENTS(2)
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............................................................1
Section 1.1 Definitions.............................................................................1
Section 1.2 Other Definitions.......................................................................5
Section 1.3 Incorporation by Reference of Trust Indenture Act.......................................6
Section 1.4 Rules of Construction...................................................................6
ARTICLE II THE SECURITIES.........................................................................................6
Section 2.1 Forms Generally.........................................................................6
Section 2.2 Securities in Global Form...............................................................7
Section 2.3 Title, Terms and Denominations..........................................................9
Section 2.4 Execution, Authentication, Delivery and Dating.........................................12
Section 2.5 Registrar and Paying Agent.............................................................15
Section 2.6 Paying Agent to Hold Money and Securities in Trust.....................................15
Section 2.7 Securityholder Lists...................................................................16
Section 2.8 Transfer and Exchange..................................................................16
Section 2.9 Replacement Securities and Coupons.....................................................19
Section 2.10 Outstanding Securities; Determinations of Holders' Action..............................20
Section 2.11 Temporary Securities...................................................................21
Section 2.12 Cancellation...........................................................................22
Section 2.13 Payment of Interest; Interest Rights Preserved.........................................23
Section 2.14 Persons Deemed Owners..................................................................24
Section 2.15 Computation of Interest................................................................25
ARTICLE III REDEMPTION...........................................................................................25
Section 3.1 Right to Redeem; Notices to Trustee....................................................25
Section 3.2 Selection of Securities to be Redeemed.................................................25
Section 3.3 Notice of Redemption...................................................................25
Section 3.4 Effect of Notice of Redemption.........................................................26
Section 3.5 Deposit of Redemption Price............................................................27
Section 3.6 Securities Redeemed in Part............................................................27
ARTICLE IV COVENANTS.............................................................................................27
Section 4.1 Payment of Securities..................................................................27
Section 4.2 SEC Reports............................................................................28
Section 4.3 Compliance Certificate.................................................................28
Section 4.4 Further Instruments and Acts...........................................................28
Section 4.5 Maintenance of Office or Agency........................................................28
Section 4.6 Additional Amounts.....................................................................29
----------------------
(2) Note: This Table of Contents shall not, for any purpose, be deemed to be
part of the Indenture.
iii
ARTICLE V SUCCESSOR CORPORATION..................................................................................30
Section 5.1 When Company May Merge or Transfer Assets..............................................30
ARTICLE VI DEFAULTS AND REMEDIES.................................................................................31
Section 6.1 Events of Default......................................................................31
Section 6.2 Acceleration...........................................................................32
Section 6.3 Other Remedies.........................................................................32
Section 6.4 Waiver of Past Defaults................................................................33
Section 6.5 Control by Majority....................................................................33
Section 6.6 Limitation on Suits....................................................................33
Section 6.7 Rights of Holders to Receive Payment...................................................34
Section 6.8 Collection Suit by Trustee.............................................................34
Section 6.9 Trustee May File Proofs of Claim.......................................................34
Section 6.10 Priorities.............................................................................35
Section 6.11 Undertaking for Costs..................................................................35
Section 6.12 Waiver of Stay, Extension or Usury Laws................................................35
ARTICLE VII TRUSTEE..............................................................................................36
Section 7.1 Duties of Trustee......................................................................36
Section 7.2 Rights of Trustee......................................................................37
Section 7.3 Individual Rights of Trustee, Etc......................................................38
Section 7.4 Trustee's Disclaimer...................................................................38
Section 7.5 Notice of Defaults.....................................................................38
Section 7.6 Reports by Trustee to Holders..........................................................38
Section 7.7 Compensation and Indemnity.............................................................39
Section 7.8 Replacement of Trustee.................................................................39
Section 7.9 Successor Trustee by Merger............................................................41
Section 7.10 Eligibility; Disqualification..........................................................41
Section 7.11 Preferential Collection of Claims Against Company......................................41
ARTICLE VIII SATISFACTION AND DISCHARGE..........................................................................41
Section 8.1 Discharge of Liability on Securities...................................................41
Section 8.2 Repayment to the Company...............................................................42
Section 8.3 Option to Effect Defeasance or Covenant Defeasance.....................................43
Section 8.4 Defeasance and Discharge...............................................................43
Section 8.5 Covenant Defeasance....................................................................43
Section 8.6 Conditions to Defeasance or Covenant Defeasance........................................44
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................44
Section 9.1 Supplemental Indentures without Consent of Holders.....................................44
Section 9.2 Supplemental Indentures with Consent of Holders........................................45
Section 9.3 Compliance with Trust Indenture Act....................................................46
Section 9.4 Revocation and Effect of Consents, Waivers and Actions.................................46
Section 9.5 Notation On or Exchange of Securities..................................................47
Section 9.6 Trustee to Sign Supplemental Indentures................................................47
iv
Section 9.7 Effect of Supplemental Indentures......................................................47
ARTICLE X SINKING FUNDS..........................................................................................47
Section 10.1 Applicability of Article...............................................................47
Section 10.2 Satisfaction of Sinking Fund Payments with Securities..................................47
Section 10.3 Redemption of Securities for Sinking Fund..............................................48
ARTICLE XI ACTIONS OF HOLDERS OF SECURITIES......................................................................48
Section 11.1 Purposes for which Meetings May Be Called..............................................48
Section 11.2 Call, Notice and Place of Meetings.....................................................48
Section 11.3 Persons Entitled to Vote at Meetings...................................................49
Section 11.4 Quorum; Action.........................................................................49
Section 11.5 Determination of Voting Rights; Conduct and Adjournment of Meetings....................50
Section 11.6 Counting Votes and Recording Action of Meetings........................................50
Section 11.7 Actions of Holders Generally...........................................................51
ARTICLE XII MISCELLANEOUS........................................................................................52
Section 12.1 Trust Indenture Act Controls...........................................................52
Section 12.2 Notices................................................................................52
Section 12.3 Communication by Holders with Other Holders............................................54
Section 12.4 Certificate and Opinion as to Conditions Precedent.....................................54
Section 12.5 Form of Documents Delivered to Trustee.................................................54
Section 12.6 Statements Required in Certificate or Opinion..........................................55
Section 12.7 Separability Clause....................................................................55
Section 12.8 Rules by Trustee, Paying Agent and Registrar...........................................55
Section 12.9 Legal Holidays.........................................................................55
Section 12.10 Governing Law and Jurisdiction.........................................................55
Section 12.11 No Recourse against Others.............................................................56
Section 12.12 Successors.............................................................................56
Section 12.13 Effect of Headings and Table of Contents...............................................56
Section 12.14 Benefits of Indenture..................................................................56
Section 12.15 Multiple Originals.....................................................................57
EXHIBIT A - FORM OF CERTIFICATE RELATING TO SECURITIES...................................A-1
EXHIBIT B - FORM OF ACCOUNTHOLDER'S CERTIFICATION.....................................................B-1
v
INDENTURE dated as of September 24, 2001, by and between
The Walt Disney Company, a Delaware corporation ("Company"), and Wells Fargo
Bank, National Association, 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.
"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.
"Clearstream" means Clearstream Banking, societe anonyme.
"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 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.
2
"Euroclear" means Euroclear Bank S.A./N.V., as operator of
the Euroclear System or any successor entity.
"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 12.6, 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.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 12.4 and 12.6, 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.
3
"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," when used with respect to any Security
to be redeemed, shall mean the date specified for redemption of such Security
in accordance with the terms of such Security and this Indenture.
"Redemption Price," 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.
4
"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 any officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the
first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"United States" means the United States of America, its
territories, its possessions (including the Commonwealth of Puerto Rico), and
other areas subject to its jurisdiction.
"United States Alien" means any person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
Section 1.2 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Bankruptcy Law" 6.1
"Common Depositary" 2.2
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Date" 2.2
"Legal Holiday" 12.9
"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
5
Section 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture Securities" means the Securities.
"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:
(i) a term has the meaning assigned to it;
(ii) 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;
(iii) "OR" is not exclusive;
(iv) "INCLUDING" means including, without limitation;
and
(v) 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
6
exchange or as may, consistently herewith, be determined by the Officers
executing such Securities or coupons as evidenced by their execution of the
Securities or coupons. The Officers' Certificate so establishing the form of
Security or coupons, if any, of any series shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 2.4
for the authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section
2.3(a), Bearer Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be
printed, lithographed, 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 12.6 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 12.6 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the Principal
Amount of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13,
unless otherwise specified as contemplated by Section 2.3(a), payment of
Principal of and any interest on any Security in global form shall be made to
the person or persons specified therein.
7
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 a depositary designated by the Company, as common depositary
(the "Common Depositary"), for credit to their respective accounts (or to
such other accounts as they may direct) at Euroclear Bank S.A./N.V., Brussels
office, as operator of Euroclear or Clearstream.
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
Euroclear 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 Clearstream 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 Euroclear or Clearstream
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 Euroclear and
Clearstream 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 Euroclear and Clearstream 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.
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 Euroclear, Clearstream 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
8
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;
(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;
9
(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 premium or
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 premium or
interest on the Securities of the series shall be payable if other
than the currency of the United States, and if so, whether the
Securities of the series may be satisfied and discharged other than
as provided in Article VIII;
(13) if the amount of payments of Principal of and any
premium or 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
10
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;
(20) whether the Securities of the series, in whole
or any specified part, shall not be defeasible pursuant to Section
8.4 or Section 8.5 or both such Sections and, if other than by an
Officers' Certificate, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(21) any addition to or change in the Events of Default
which apply to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 6.2;
(22) any addition to or change in the covenants set
forth in Article IV which apply to Securities of the series; and
(23) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(7)).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be substantially
identical except as to denomination and the rate or rates of interest, if
any, and Stated Maturity, the date from which interest, if any, shall accrue
and except as may otherwise be provided in or pursuant to an Officers'
Certificate pursuant to this Section 2.3(a) or in any indenture supplemental
hereto.
All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series or for the establishment of
additional terms with respect to the Securities of such series.
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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 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 or its authenticating agent
with respect to Bearer Securities prior to the delivery to the Trustee of
such Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate Principal Amount not exceeding the aggregate
Principal Amount established for such series, pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be specified
from time to time by a Company Order, (c) the rate or rates of interest, if
any, the Stated Maturity or Maturities, the original issue date or dates, the
redemption provisions, if any, and any other terms of Securities of such
series shall be determined by a Company Order or pursuant to
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such procedures and (d) if provided for in such procedures, such Company
Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company, or the Company's duly authorized
agent or agents designated in an Officers' Certificate, which 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 Trustee's 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 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:
(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
13
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 or
any of its Trust Officers has actual knowledge to the contrary, that the
Company's instructions to authenticate and deliver such Securities do not
violate any rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the
preceding three paragraphs, if all Securities of a series are subject to a
Periodic Offering, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 2.3(a) at or prior to the
time of authentication of each Security of such series if such Officers'
Certificate is delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication; and, unless otherwise specified as contemplated by Section
2.3(a), each Bearer Security (including a Bearer Security represented by a
temporary global Security) shall be dated as of the date of original issuance
of the first Security of such series to be issued.
The Trustee (at the expense of the Company) may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
Unless otherwise provided in the appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent.
No Security or coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein duly executed by the Trustee by manual signature of
an authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. The Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Wells Fargo Bank, National Association,
as Trustee
By:
-------------------------------------
Authorized Officer
14
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 12.6 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued
and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 2.5 REGISTRAR AND PAYING AGENT. The Company shall
maintain, with respect to each series of Securities, an office or agency
where such Securities may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where such Securities may be
presented for purchase or payment ("Paying Agent"). The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may have one or more co-registrars and one or more additional paying agents.
The term Paying Agent includes any additional paying agent.
The Company shall enter into an appropriate agency
agreement with respect to each series of Securities with any Registrar,
Paying Agent or co-registrar (if not the Trustee). The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent.
If the Company fails to maintain a Registrar or Paying Agent for a particular
series of Securities, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar
and Paying Agent in connection with such Securities.
Section 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN
TRUST. Except as otherwise provided herein, prior to or on each due date of
payments in respect of any series of Securities, the Company shall deposit
with the Paying Agent with respect to such Securities a sum of money
sufficient to make such payments when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying Agent for the making of payments in
respect of the Securities of such series and shall notify the Trustee 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.
15
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 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
16
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 4.5, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be, and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee or a duly appointed authenticating
agent shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
If at any time the Depositary for the Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice, the
Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in an
aggregate Principal Amount equal to the Principal Amount of the Security or
Securities in global form representing such series in exchange for such
Security or Securities in global form 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 specified as contemplated by Section 2.3(a), then without
unnecessary delay but in any event not later than
17
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 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
18
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
outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or coupon, or to the Security to
which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security or coupon; PROVIDED, HOWEVER, that the Principal of and any interest
on Bearer Securities shall, except as otherwise provided in Section 4.5, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 2.3(a), any interest on
Bearer Securities shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new Securities under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee or Paying
Agent) connected therewith.
19
Every new Security of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all benefits of this Indenture equally
and proportionately with any and all other Securities of that issue and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
Section 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION. Securities of any series "Outstanding" at any time are, as of the
date of determination, all the Securities of such series theretofore
authenticated by the Trustee for such series except for those cancelled by
it, those delivered to it for cancellation and those described in this
Section 2.10 as not outstanding. A Security does not cease to be
"Outstanding" because the Company or an Affiliate thereof holds the Security;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Principal Amount of Outstanding Securities have given or concurred in any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles VI and IX). 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.
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If the Trustee (other than the Company) holds, in
accordance with this Indenture, on a Redemption Date or on Stated Maturity,
money sufficient to pay Securities and any coupons thereto appertaining
payable on that date, then on and after that date such Securities shall cease
to be Outstanding and interest, if any, on such Securities shall cease to
accrue; PROVIDED, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made.
Section 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities
may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of Securities represented by a temporary
global Security (which shall be exchanged in accordance with the provisions
of the three succeeding paragraphs), if temporary Securities for some or all
of the Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. 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 Euroclear and Clearstream, 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
21
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 Trustee 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 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 Euroclear or Clearstream, as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or Clearstream, 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
Euroclear or Clearstream.
Until exchanged in full as here-in-above 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 Euroclear and Clearstream on
such Interest Payment Date, upon delivery by Euroclear and Clearstream 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 Euroclear or
Clearstream, as the case may be, any certificate specified as contemplated by
Section 2.3(a).
Section 2.12 CANCELLATION. All Securities or coupons
surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any sinking fund payment, shall, if surrendered to any
person other than the Trustee, be delivered to the Trustee and all Registered
Securities and matured coupons so delivered shall be promptly cancelled by
it. All Bearer Securities and unmatured coupons so delivered shall be held by
the Trustee and, upon instruction by a Company Order, shall be cancelled or
held for reissuance. Bearer Securities and unmatured coupons held for
reissuance may be reissued only in replacement of mutilated, lost,
22
stolen or destroyed Bearer Securities of the same series and like tenor or
the related coupons pursuant to Section 2.9. All Bearer Securities and
unmatured coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or
payment for other Securities of the Company) and may deliver to the Trustee
(or to any other person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled
by the Trustee. The Company may not reissue, or issue new Securities to
replace, Securities it has paid or delivered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted in the form of Securities for any particular series or as
permitted by this Indenture. All cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee in accordance with its customary
procedures and a certificate of their destruction shall be 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
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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 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 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.
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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
as the Trustee considers fair and appropriate, which method may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the Principal Amount of Registered Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series. The Trustee shall make the selection not more than 60 days
before the Redemption Date from Outstanding Securities of such series not
previously called for redemption. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company promptly in writing of
the Securities to be redeemed and, in the case of any portions of Securities
to be redeemed, the principal amount thereof to be redeemed.
Section 3.3 NOTICE OF REDEMPTION. Unless otherwise specified
as contemplated by Section 2.3(a) with respect to any series of Securities,
at least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed.
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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 request, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense; PROVIDED,
HOWEVER, that, in all cases, the text of such Company notice shall be
prepared by the Company.
Section 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is given, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price stated in the notice, and
from and after such date (unless the 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.
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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. By or before 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 Securities
called for redemption which prior thereto have been delivered by the Company
to the Trustee for cancellation. If such money is then held by the Company in
trust and is not required for such purpose, it shall be discharged from such
trust.
Section 3.6 SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and upon such surrender, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security a new Registered Security or Securities of the same series and
of like tenor, in an authorized denomination as requested by such Holder,
equal in aggregate Principal Amount to and in exchange for the unredeemed
portion of the Principal of the Security surrendered.
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
27
of the Company) holds on that date funds (in the currency or currencies of
payment with respect to such Securities) designated for and sufficient to pay
such installment. Unless otherwise specified as contemplated by Section
2.3(a) with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payments
of Principal or interest may be made by check or by transfer to an account
maintained by the payee, subject, in the case of Bearer Securities, to the
provisions of Section 4.5.
Section 4.2 SEC REPORTS. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with
the other provisions of TIA Section 314(a).
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, 2002) 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
28
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
707 Wilshire Boulevard, 17th Floor, Los Angeles, California 90017, Attention:
Corporate Trust Department, shall be such office or agency for all of the
aforesaid purposes unless the Company shall maintain some other office or
agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change in the location, of such other office or
agency. In the event that Registered Securities are issued or if the
Depositary shall so require, the Company will appoint a Paying Agent and
Registrar in The City of New York. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof,
such presentations and surrenders of Securities of that series may be made
and notices and demands may be made or served at the address of the Trustee
set forth in Section 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) 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
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context, additional amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment
of additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that
series will not bear interest prior to Maturity, the first day on which
payment of Principal is made), and at least 10 days prior to each date of
payment of Principal and any interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying
Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of Principal of and any interest on the Securities of
that series shall be made to Holders of Securities of that series or any
related coupons who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by the Securities of such series and this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or willful misconduct 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
validly existing under the laws of the United States or any state thereof or
the District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(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
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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;
(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
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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 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
32
Principal and interest, with interest upon the overdue Principal and, to the
extent that payment of such interest shall be legally enforceable, upon
overdue installments of interest from the date such interest was due, at the
rate or rates prescribed therefor in such Securities and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including amounts due the Trustee under Section 7.7
or (b) enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee
does not possess any of the Securities or coupons or does not produce any of
the Securities or coupons in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a
waiver of, or acquiescence in, the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.
Section 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority
in aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may
on behalf of the Holders of all the Securities of such series and any related
coupons waive an existing Default with respect to such series and its
consequences except (1) an Event of Default described in Section 6.1(1) with
respect to such series or (2) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of the Holder of each
Outstanding Security of such series affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
Section 6.5 CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee with respect to the Securities of such series. However, the Trustee
may refuse to follow any direction that conflicts with 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
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(5) the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of that series do not give the
Trustee a direction inconsistent with such request during such
60-day period.
A Securityholder may not use this Indenture to prejudice
the rights of any other Securityholder or to obtain a preference or priority
over any other Securityholder.
Section 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right, which is
absolute and unconditional, of any Holder of any Security or coupon to
receive payment of the Principal of and (subject to Section 2.13) interest on
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected adversely without the consent of each such Holder.
Section 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.1(1) with respect to Securities of any series occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount owing
with respect to such series of Securities and the amounts provided for in
Section 7.7.
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.
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Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Indebtedness to authorize or consent to or
accept or adopt on behalf of any Holder of a Security or coupon any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
Section 6.10 PRIORITIES. If the Trustee collects any money
pursuant to this Article VI, 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 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,
35
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, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.5 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.
36
(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 in writing 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) 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) 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 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 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;
37
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.
(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.
Section 7.4 TRUSTEE'S DISCLAIMER. The recitals contained
herein and in the Securities, except the Trustee's certificate 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.
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Section 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or willful misconduct; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities and any coupons on
all money or property held or collected by the Trustee, except that held in
trust to pay the Principal of or interest, if any, on particular Securities
or for the payment of particular coupons.
The Company's payment obligations pursuant to this Section
7.7 shall survive the discharge 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 respect to the Securities of
that or those series (it being understood that any such successor Trustee may
be appointed
39
with respect to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the Securities of
any series).
In the case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and
to the Company. Thereupon, the resignation or removal of the retiring Trustee
shall become effective and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders of Securities of the
particular series with respect to which such successor Trustee has been
appointed. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees as
co-Trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, subject, nevertheless, to its lien, if any, provided for in Section
7.7.
If a successor Trustee with respect to the Securities of
any series does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of a
majority in aggregate Principal Amount of the Outstanding Securities of such
series at the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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If the Trustee fails to comply with Section 7.10, any
Holder of a Security of such series may petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a
successor Trustee.
Section 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall
be the successor Trustee.
Section 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5).
The Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9). In
determining whether the Trustee has conflicting interests as defined in TIA
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), this Indenture shall upon Company
Request cease to be of further effect as to all Outstanding Securities or all
Outstanding Securities of any series, as the case may be (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for, and any right to receive additional amounts, as
provided in Section 4.6), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when:
(a) either
(1) all Outstanding Securities or all Outstanding
Securities of any series, as the case may be, theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Section 2.8, (ii) Securities or Securities of
such series, as the case may be, and coupons, if any, which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9, (iii) coupons, if any, appertaining to
Securities or Securities of such series, as the case may be, called
for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 3.4, and (iv)
Securities or Securities of such series, as the case may be, and
coupons, if any, for whose payment money has
41
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 8.2) have been delivered to
the Trustee for cancellation; or
(2) all such Securities and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company.
The Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust
for the purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and any interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
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.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities of any series, the obligations of
the Company to the Trustee with respect to the Securities of that series
under Section 7.7, the obligations of the Company to any Authenticating Agent
appointed by the Trustee pursuant to Section 2.4 and, if money shall have
been deposited with the Trustee pursuant to clause (b) of this Section,
Section 8.2 shall survive. The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
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
42
expense and direction of the Company cause to be published once in an
Authorized Newspaper in each Place of Payment of or mail to each such Holder
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed money then remaining will be returned
to the Company. After return to the Company, Holders entitled to the money
must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
Section 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. Unless otherwise specified as contemplated by Section 2.3(a) with
respect to Securities of a particular series, the Company, may at its option,
by Board Resolution, at any time, with respect to any series of Securities,
elect to have either Section 8.4 or Section 8.5 be applied to all of the
outstanding Securities of any series (the "Defeased Securities"), upon
compliance with the conditions set forth below in Article VIII.
Section 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's
exercise under Section 8.3 of the option applicable to this Section 8.4, the
Company shall be deemed to have been discharged from its obligations with
respect to the Defeased Securities on the date the conditions set forth below
are satisfied (hereinafter "defeasance"). For this purpose, such defeasance
means that the Company 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.
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Section 8.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the
Trustee, in trust, (i) sufficient funds in the currency or currency unit in
which the Securities of such series are denominated to pay the Principal of
and interest to Stated Maturity (or redemption) on, the Debt Securities of
such series, or (ii) such amount of direct obligations of, or obligations the
principal of and interest on which are fully guaranteed by, the government
which issued the currency in which the Securities of such series are
denominated, and which are not subject to prepayment, redemption or call, as
will, together with the predetermined and certain income to accrue thereon
without consideration of any reinvestment thereof, be sufficient to pay when
due the Principal of, and interest to Stated Maturity (or redemption) on, the
Debt Securities of such series.
(b) The Company shall (i) have delivered an Opinion of Counsel
that the 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
44
payment of Principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or
to permit the issuance of Securities in uncertificated form; or
(4) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections 2.1 and
2.3(a), respectively; or
(5) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 7.8; or
(6) to cure any ambiguity, defect or inconsistency; or
(7) to add to, change or eliminate any of the
provisions of this Indenture (which addition, change or elimination
may apply to one or more series of Securities), PROVIDED that any
such addition, change or elimination shall neither (A) apply to any
Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision; or
(8) to secure the Securities; or
(9) to make any other change that does not adversely
affect the rights of any Securityholder in any material respect.
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 where, or
change the coin or currency in which, any Principal of, or any
installment of interest on, any such Security is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
45
(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 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
46
such record date. No such consent shall be valid or effective for more than
90 days after such record date.
Section 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture with respect to such series pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of such series so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for outstanding
Securities of that series.
Section 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article IX 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 shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
Section 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, except to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
Section 10.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise specified as contemplated by
Section 2.3(a) for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a
"Mandatory Sinking Fund Payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "Optional Sinking Fund Payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 10.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series
as provided for by the terms of the Securities of such series.
Section 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company (1) may deliver Outstanding Securities of a series
with the same issue date, interest rate and Stated Maturity (other than any
previously called for redemption), together in the case of any Bearer
Securities of such series with the same issue date, interest rate and Stated
Maturity with all unmatured coupons appertaining thereto, and (2) may apply
as a credit Securities of a series with
47
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
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
48
meeting of the Holders of Securities of such series for any purpose specified
in Section 11.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York, or for a series of Securities issued as Bearer Securities, in London,
or in such other place as shall be determined and approved by the Company,
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section 11.2.
Section 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any series, a
person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be
the persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 11.4 QUORUM; ACTION. The persons entitled to vote a
majority in Principal Amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case, the meeting may
be adjourned for a period determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 11.2(a), except that such notice need
be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of a majority in Principal Amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by 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.
49
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Section 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 11.7 and the appointment of any proxy shall be proved in
the manner specified in Section 11.7 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 11.7 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 11.7 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 11.2(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the persons entitled to vote a majority in Principal
Amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to vote with respect to the Outstanding Securities of
such series held or represented by him; PROVIDED, HOWEVER, that no vote shall
be cast or counted at any meeting in respect to any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except
as a Holder of a Security of such series or proxy.
(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
50
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting.
A record, at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 11.2 and, if applicable, Section 11.4. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
Section 11.7 ACTIONS OF HOLDERS GENERALLY.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of this Article, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by
any person of a Security, shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 11.6.
(b) The fact and date of the execution by any person of any
such instrument or writing, or the authority of the persons executing the
same, may be proved in any reasonable manner which the Trustee deems
sufficient.
(c) The Principal Amount and serial numbers of Registered
Securities held by the person, and the date of holding the same, shall be
proved by the books of the Registrar.
(d) The Principal Amount and serial numbers of Bearer
Securities held by any person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed by any trust company, bank, banker or other depositary, wherever
situated, as depositary, if such certificate shall be deemed by the Trustee
to be satisfactory, showing that at the date therein mentioned such person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate
or affidavit of the person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company
51
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.
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:
52
if to the Company:
The Walt Disney Company
500 South Buena Vista Street
Burbank, California 91521
Attention: Legal Department
if to the Trustee:
Wells Fargo Bank, National Association
707 Wilshire Boulevard, 17th Floor
Los Angeles, California 90017
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication given to a Holder of Registered
Securities shall be mailed to such Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed. Notice shall be
sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities
as may be specified in such Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with
respect to other Holders of Securities of the same series. If a notice or
communication is mailed in the manner provided above, it is duly given,
whether or not received by the addressee.
If the Company mails a notice or communication to the
Holders of Securities of a particular series, it shall mail a copy to the
Trustee and each Registrar, co-registrar or Paying Agent, as the case may be,
with respect to such series.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the acceptance of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the
53
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 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 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of
54
the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Section 12.6 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 12.7 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 12.8 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. With
respect to the Securities of a particular series, the Trustee with respect to
such series of Securities may make reasonable rules for action by or a
meeting of Holders of such series of Securities. With respect to the
Securities of a particular series, the Registrar and the Paying Agent with
respect to such series of Securities may make reasonable rules for their
functions.
Section 12.9 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 12.10 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
55
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 THAT
SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 12.11 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 12.12 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.
Section 12.13 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 12.14 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.
56
Section 12.15 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/ Christine M. McCarthy
-----------------------------------
Name: Christine M. McCarthy
-----------------------------
Title: Senior Vice President
and Treasurer
----------------------------
Attest:
/s/ Suet Lai
----------------------------------
Name: Suet Lai
---------------------------
Title: Vice President-Counsel
---------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Jeanie Mar
-----------------------------------
Name: Jeanie Mar
----------------------------
Title: Vice President
----------------------------
Attest:
/s/ Robert Schneider
----------------------------------
Name: Robert Schneider
---------------------------
Title: Vice President
---------------------------
57
EXHIBIT A
FORM OF CERTIFICATE RELATING TO
__________ SECURITIES
This is to certify that, based on certificates we have
received from our member organizations substantially in the form set out in
Exhibit B to 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)(iv) ("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 its 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.
A-1
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 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: *
-----------------------
*To be dated no earlier than the Exchange Date.
[EUROCLEAR BANK S.A./N.V., BRUSSELS
OFFICE, AS OPERATOR OF THE EUROCLEAR
CLEARANCE SYSTEM]
[CLEARSTREAM BANKING, SOCIETE ANONYME]
---------------------------------------
A-2
EXHIBIT B
FORM OF ACCOUNTHOLDER'S CERTIFICATION
THE WALT DISNEY COMPANY
(incorporated with limited liability under
the laws of the State of Delaware, United States of America)
[CURRENCY][AMOUNT]
[TITLE OF NOTES]
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (a) are owned by
persons that are not (i) citizens or residents of the United States, (ii)
corporations, partnerships or other entities created or organized in or under
the laws of the United States, (iii) estates if the income of such estates
falls within the federal income tax jurisdiction of the United States
regardless of the source of such income, or (iv) trusts if a United States
court is able to exercise primary supervision over their administration and
one or more United States Persons have the authority to control all of their
substantial decisions ("United States Persons"), (b) are owned by United
States Person(s) that (i) are foreign branches of a United States financial
institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(iv)) ("financial institutions") purchasing for their own
account or for resale, or (ii) acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (i) or (ii), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the
issuer or the issuer's agent that, for the benefit of the Issuer and the
Issuer's agent, it will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (c) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in U.S. Treasury Regulations Section 1.163- 5(c)(2)(i)(D)(7)),
and in addition if the owner of the Securities is a United States or foreign
financial institution described in clause (c) (whether or not also described
in clause (a) or (b)) this is to further certify that such financial
institution has not acquired the Securities for purposes of resale directly
or indirectly to a United States Person or to a person within the United
States or its possessions.
[If the Securities are of the category contemplated in Section 230.903(b)(3)
of Regulation S under the Securities Act of 1933, as amended (the "Act"),
then this is also to certify that, except as set forth below, the Securities
are beneficially owned by (1) non-U.S. person(s) or (2) U.S. person(s) who
purchased the Securities in transactions which did not require registration
under the Act. As used in this paragraph the term "U.S. person" has the
meaning given to it by Regulation S under the Act.]
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands. We undertake to advise you promptly by tested
telex on or prior to the date on which you intend to submit your
certification
B-1
relating to the Securities held by you for our account in accordance with
your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that this certification applies as of such date. This certification excepts
and does not relate to [currency] [amount] of such interest in the above
Securities in respect of which we are not able to certify and as to which we
understand exchange and delivery of definitive Securities (or, if relevant,
exercise of any rights or collection of any interest) cannot be made until we
do so certify. This certificate is intended to comply with U.S. Treasury
Regulation Section 1.163-5(c)(2)(i)(D) and shall be interpreted and retained
in accordance therewith. We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws
of the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to
produce this certification to any interested party in such proceedings.
Dated:
--------------------------------
[NAME OF ACCOUNT HOLDER]
AS, OR AS AGENT FOR,
THE BENEFICIAL OWNER(S) OF THE SECURITIES
TO WHICH THIS CERTIFICATE RELATES.
By:
----------------------------------
Authorized signatory
B-2
EX-4.2
6
a2059822zex-4_2.txt
EXHIBIT 4.2
EXHIBIT 4.2
THE WALT DISNEY COMPANY
OFFICERS' CERTIFICATE
Pursuant to Sections 2.1 and 2.3(a) of the Indenture, dated as
of September 24, 2001 (the "Indenture"), between The Walt Disney Company, a
Delaware corporation (the "Company"), and Wells Fargo Bank, N.A., a national
banking association, as trustee (the "Trustee"), the undersigned Christine M.
McCarthy and David K. Thompson, the Senior Vice President and Treasurer 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
Two-Year Notes (as defined below) and the Three-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 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 title of the series of Securities are
the "3.90% Global Notes due September 15, 2003" (the "Two-Year
Notes") and the "4.50% Global Notes due September 15, 2004"
(the "Three-Year Notes"), respectively.
(ii) AGGREGATE PRINCIPAL AMOUNT. The initial
aggregate principal amount of each of the Two-Year Notes and
Three-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 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 $500,000,000 for
each of the Two-Year Notes and Three-Year Notes. Each series
may
be reopened subsequent to the issuance of the Securities
of such series and additional Securities of such series
issued. Any Securities issued pursuant to such reopening shall
be consolidated with the outstanding Securities of such series
as a single series.
(iii) REGISTERED SECURITIES IN BOOK-ENTRY FORM. Each
of the Two-Year Notes and Three-Year Notes will be issued in
book-entry form ( "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. Investors may
elect to hold interests in the Global Notes through either the
Depositary (in the United States) or through Clearstream
Banking, SOCIETE ANONYME, Luxembourg or Euroclear Bank
S.A./NV, as operator of the Euroclear System (in Europe) if
they are participants in such systems, or indirectly through
organizations that are participants in such systems. 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
2
surrendered, to the Person who surrenders such Note, or
portion thereof, for redemption).
(v) STATED MATURITY. The principal amount of the
Two-Year Notes and Three-Year Notes will be payable on
September 15, 2003 and September 15, 2004, respectively.
(vi) RATE OF INTEREST; INTEREST PAYMENT DATES;
REGULAR RECORD DATES; ACCRUAL OF INTEREST. The Two-Year Notes
and Three-Year Notes will bear interest at the rate of 3.90%
and 4.50%, respectively, per annum. Interest on the Notes will
be payable semiannually in arrears on March 15 and September
15 of each year, commencing on March 15, 2002. The Regular
Record Date shall be the 15th day (whether or not a Business
Day) immediately preceding the related Interest Payment Date.
The Notes will bear interest from September 24, 2001 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
September 24, 2001 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, initially designated
to be the Corporate Trust Office of the Trustee in Los
Angeles, California, 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 any Holder of the Notes (if such
Holder holds $10,000,000 or more in aggregate principal amount
of the Notes) shall be entitled to receive payments of
interest on the Notes by wire transfer of immediately
available funds, if appropriate wire transfer
3
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 maintained for that purpose, initially designated to
be the Corporate Trust Office of the Trustee in Los Angeles,
California, or at such additional offices or agencies as the
Company may designate.
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 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
4
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;
(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 30 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,
5
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 or that is a bank receiving interest on an
extension of credit made pursuant to a loan agreement entered
into in the ordinary course of its trade or business;
(h) any tax, assessment or other governmental charge
payable by means of deduction or withholding imposed on a
payment to an individual and required to be made pursuant to
any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of
26th-27th November, 2000 or any law implementing or complying
with, or introduced in order to conform to, such Directive; 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 payment of
Additional Amounts would not have been necessary) had such
beneficiary, settlor, member or beneficial owner been the
Holder of such Note.
A "United States Alien" means any person that, 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
6
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
September 24, 2001, 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 September 24, 2001, 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
Two-Year Notes and/or the Three-Year 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
Two-Year Notes and/or the Three-Year 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 Two-Year
Notes and/or the Three-Year Notes pursuant to their terms.
(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.
7
(xii) BUSINESS DAY. "Business Day" means any day,
other than a Saturday or Sunday, that is not a day on which
banking institutions are authorized or required by law or
executive order to close in The City of New York.
(xiii) FORM. The Two-Year Notes and the Three-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.
(xiv) LISTING. In the event that the Two-Year Notes
and/or the Three-Year Notes are listed on the Luxembourg Stock
Exchange, the Company may, by an Officers' Certificate
supplemental hereto, provide for a Luxembourg Transfer Agent,
for the publication of notices in Luxembourg and for such
other provisions as may be appropriate to effect a Luxembourg
Stock Exchange listing.
All capitalized terms used in this Officers' Certificate and not
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
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.
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.
8
IN WITNESS WHEREOF, the undersigned have hereunto signed this
Certificate on behalf of the Company as of the 24th day of September, 2001.
THE WALT DISNEY COMPANY
By: /s/ Christine M. McCarthy
-------------------------------
Name: Christine M. McCarthy
Title: Senior Vice President and Treasurer
By: /s/ David K. Thompson
-------------------------------
Name: David K. Thompson
Title: Senior Vice President - Assistant
General Counsel
9
EXHIBIT A
SPECIMEN TWO-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, a New York corporation ("DTC"), 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 in such other name
as requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
THE WALT DISNEY COMPANY
3.90% Global Note due September 15, 2003
NO. R Principal Amount: U.S. $
CUSIP: 254687AQ9
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 September 15, 2003 and to pay interest thereon from September 24,
2001 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for semiannually in arrears on March 15 and September 15,
in each year, commencing on March 15, 2002, and at Maturity, at the rate of
3.90% per annum, until the principal hereof is paid or made available for
payment. Interest on this Note shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. 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 (as
defined herein) (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date, which shall be the 15th day
(whether or not a Business Day) immediately 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 Person who was
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, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at any
additional offices or agencies 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 (if such Holder holds $10,000,000 or more in aggregate
principal amount of the Notes) shall be entitled to receive payments of
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 Interest 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 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.
11
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:_______________________
Christine M. McCarthy
Senior Vice President
and Treasurer
ATTEST:
By:___________________
Marsha L. Reed
Vice President and Secretary
Dated: September 24, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
WELLS FARGO BANK, N.A., as Trustee
By:_____________________
Authorized Signatory
12
THE WALT DISNEY COMPANY
3.90% GLOBAL NOTES DUE SEPTEMBER 15, 2003
This Note is one of a duly authorized issue of 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 of Securities designated by the Company as its
3.90% Global Notes due September 15, 2003 (herein called the "Notes"), initially
limited in aggregate principal amount to $500,000,000. The series may be
reopened subsequent to the issuance of the Notes and additional Securities
issued. Any Securities issued pursuant to such reopening shall be consolidated
with the outstanding Notes as a single series. The Indenture does not limit the
aggregate principal amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
September 24, 2001 (herein called the "Indenture"), between the Company and
Wells Fargo Bank, N.A., a national banking association, as 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 to any 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 this 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 or will
become obligated to pay Additional
13
Amounts or (b) any act is taken by a taxing authority of the United States
that on or after September 24, 2001 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.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of and accrued and unpaid interest on all the Notes
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, 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, 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 maintained for that purpose, initially
designated to be the Corporate Trust Office of the Trustee in Los Angeles,
California, or at such additional 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.
14
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, 9.5 or 10.3 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 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.
15
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.
--------------------------
16
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 Print or Typewrite Name and Address, Including Postal Zip Code of
Assignee)
-------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________________________attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:_______________ 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.
17
EXHIBIT B
SPECIMEN THREE-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, a New York corporation ("DTC"), 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 in such other name
as requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
THE WALT DISNEY COMPANY
4.50% Global Note due September 15, 2004
NO. R Principal Amount: U.S. $
CUSIP: 254687AR7
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 September 15, 2004 and to pay interest thereon from September 24,
2001 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for semiannually in arrears on March 15 and September 15,
in each year, commencing on March 15, 2002, and at Maturity, at the rate of
4.50% per annum, until the principal hereof is paid or made available for
payment. Interest on this Note shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. 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 (as
defined herein) (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date, which shall be the 15th day
(whether or not a Business Day) immediately 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 Person who was
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, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at any
additional offices or agencies 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 (if such Holder holds $10,000,000 or more in aggregate
principal amount of the Notes) shall be entitled to receive payments of
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 Interest 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 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.
19
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:__________________________
Christine M. McCarthy
Senior Vice President
and Treasurer
ATTEST:
By:______________________
Marsha L. Reed
Vice President and Secretary
Dated: September 24, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
WELLS FARGO BANK, N.A., as Trustee
By:_______________________
Authorized Signatory
20
THE WALT DISNEY COMPANY
4.50% GLOBAL NOTES DUE SEPTEMBER 15, 2004
This Note is one of a duly authorized issue of 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 of Securities designated by the Company as its
4.50% Global Notes due September 15, 2004 (herein called the "Notes"), initially
limited in aggregate principal amount to $500,000,000. The series may be
reopened subsequent to the issuance of the Notes and additional Securities
issued. Any Securities issued pursuant to such reopening shall be consolidated
with the outstanding Notes as a single series. The Indenture does not limit the
aggregate principal amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
September 24, 2001 (herein called the "Indenture"), between the Company and
Wells Fargo Bank, N.A., a national banking association, as 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 to any 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 this 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 or will
become obligated to pay
21
Additional Amounts or (b) any act is taken by a taxing authority of the United
States on or after September 24, 2001 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.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of and accrued and unpaid interest on all the Notes
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, 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, 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 maintained for that purpose, initially
designated to be the Corporate Trust Office of the Trustee in Los Angeles,
California, or at such additional 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.
22
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, 9.5 or 10.3 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 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.
23
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.
------------------------
24
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 Print or Typewrite Name and Address, Including Postal Zip Code of
Assignee)
-------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
______________________________________________________attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:_______________ 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.
25
EX-4.5
7
a2059822zex-4_5.txt
EXHIBIT 4.5
EXHIBIT 4.5
THE WALT DISNEY COMPANY
OFFICERS' CERTIFICATE
Pursuant to Sections 2.1 and 2.3(a) of the Indenture, dated as
of September 24, 2001 (the "Indenture"), between The Walt Disney Company, a
Delaware corporation (the "Company"), and Wells Fargo Bank, N.A., a national
banking association, as trustee (the "Trustee"), the undersigned Christine M.
McCarthy and David K. Thompson, the Senior Vice President and Treasurer 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, Series B" (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
$6,500,000,000 or the equivalent thereof at the date of issue
in one or more foreign or composite currencies or currency
units. The Company may from time to time, without the consent
of existing holders of Notes, issue
additional Notes having the same terms and conditions
(including maturity and interest payment terms) as previously
issued Notes in all respects, except for issue date, issue
price and the first payment of interest. Additional Notes
issued in this manner will be fungible with the previously
issued Notes to the extent specified in the applicable Pricing
Supplement.
(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 $500,000,000 in aggregate principal amount, one
Global Security will be issued to represent each $500,000,000
of aggregate principal amount and an additional Global
Security will be issued to represent any remaining principal
amount. The initial Depositary with respect to any Global
Security will be The Depository Trust Company, New York, New
York. So long as the Depositary for a Global Security, or its
nominee, is the registered owner of the Global Security, 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 Security for all purposes
under the Indenture. Book-Entry Notes will not be exchangeable
for Definitive Notes except that, if the Depositary with
respect to any Global Security or Securities 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 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
2
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 payment of interest;
provided, however, that interest payable at Maturity will be
payable to the person to whom principal is payable.
(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 commercial banks 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 commercial banks are authorized or required by
law, regulation or executive order to close in the Principal
Financial Center (as defined below) of the country of such
Denominated Currency; PROVIDED, HOWEVER, that, with respect to
LIBOR Notes only, such day is also a London Business Day (as
defined below); and PROVIDED, FURTHER, that with respect to
EURIBOR Notes and notes denominated in Euros only, such day is
also a TARGET Business Day (as defined below). "London
Business Day" means any day on which commercial banks are open
for business (including dealings in the LIBOR currency) in
London. "TARGET Business Day" means any day on which the
Trans-European Automated Real-Time Gross Settlement Express
Transfer System is open. "Principal Financial Center" means,
as applicable, (i) the capital city of the country issuing the
payment currency, or (ii) the capital city of the country to
which the LIBOR currency relates; provided, however, that with
respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire,
Portuguese escudos, South African rand and Swiss francs, the
"Principal Financial Center" shall be The City of New York,
Sydney and (solely in the case of the payment currency)
Melbourne, Toronto, Frankfurt, Amsterdam, Milan, London
(solely in the case of the LIBOR currency), Johannesburg and
Zurich, respectively.
(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
3
any Note is payable will be on a Business 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 Company may, at its option,
revoke the interest rate, in the
4
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
accrued interest, if any, 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 Stated 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
applicable), or may bear no interest for a specified
period following the date of issue. Interest on each
Fixed Rate Note will be computed on the basis of a
360-day year of twelve 30-day months.
5
(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 (1) in the case of a Floating Rate Note which
resets daily, weekly or monthly, other than an
Eleventh District Cost of Funds Rate Note (as defined
below), 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) in the case of an Eleventh District
Cost of Funds Rate Note, on the first calendar day of
each March, June, September and December; (3) in the
case of a Floating Rate Note which resets quarterly,
on the third Wednesday of March, June, September and
December of each year; (4) in the case of a Floating
Rate Note which resets semiannually, on the third
Wednesday of each of the two months specified in the
Floating Rate Note and in the applicable Pricing
Supplement; and (5) in the case of a Floating Rate
Note which resets 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
6
postponed to the following day that is a Business Day
with respect to such Note, except that, in the case
of a LIBOR Note or a EURIBOR Note (or a Note for
which LIBOR (as defined below) or EURIBOR (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 or a Floating Rate Note falls on a
day that is not a Business Day with respect to such
Fixed Rate Note or Floating 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 or Floating 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.
However, if the Floating Rate Note is determined with
reference to the provisions under the heading
"Determination of LIBOR" or "Determination of
EURIBOR" in the prospectus supplement and such
following Business Day is in the succeeding calendar
month, such Interest Payment Date shall be the
mmediately preceding day that is a Business Day.
(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.
7
(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
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 applicable 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 office or agency of the Company
maintained for that purpose, initially designated to
be the Corporate Trust Office of the Trustee in Los
Angeles, California, or at any additional offices or
agencies 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. At the option of the Company,
payments of principal of and interest on the Notes
may be made by check mailed to the address of the
Person entitled thereto as such address shall appear
in the register of Securities, PROVIDED, HOWEVER,
that the holder of any Note (if such holder holds
$10,000,000 or more in aggregate principal amount of
the Notes) shall be entitled to receive payments of
interest on such Note by wire transfer of immediately
available funds to the account of the holder of
8
such Note if appropriate wire transfer instructions
have been received in writing by the Trustee not less
than 15 days prior to the applicable Interest Payment
Date.
(ii) REGISTRATION OF EXCHANGE AND TRANSFER.
Definitive Notes may be presented for exchange and
registration of transfer at the office or agency of
the Company maintained for that purpose, initially
designated to be the Corporate Trust Office of the
Trustee in Los Angeles, California, or at such
additional offices or agencies 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.
(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.
9
(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 below), 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"; (8) the J.J. Kenny Rate (as
defined below), in which case such Note will be a
"J.J. Kenny Rate Note"; (9) the Eleventh District
Cost of Funds Rate (as defined below), in which case
such Note will be an "Eleventh District Cost of Funds
Rate Note"; (10) EURIBOR (as defined below), in which
case such Note will be a EURIBOR Note; or (11) 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
10
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 Date") and the
period between Interest Reset Dates (each, an
"Interest Reset Period"). Unless otherwise specified
in a Floating Rate Note and the applicable Pricing
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, other
than Eleventh District Cost of Funds Rate Notes,
which will reset the first calendar day 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 EURIBOR Note (or a Note for which
LIBOR or EURIBOR is the applicable Base Rate), if
such Business Day is in the next succeeding calendar
month, such
11
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, (a) the Interest
Determination Date with respect to a Commercial Paper
Rate Note (the "Commercial Paper Interest
Determination Date"), a Federal Funds Rate Note (the
"Federal Funds Interest Determination Date") and a
Prime Rate Note (the "Prime Rate Interest
Determination Date"), will be the Business Day
preceding each Interest Reset Date, (b) the Interest
Determination Date with respect to a CD Rate Note
(the "CD Interest Determination Date"), a CMT Rate
Note (the "CMT Interest Determination Date") and a
J.J. Kenny Rate Note (the "J.J. Kenny Interest
Determination Date"), will be the second Business Day
preceding each Interest Reset Date, (c) 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, (d) the Interest Determination Date with
respect to a EURIBOR Note (the "EURIBOR Interest
Determination Date") will be the second TARGET
Business Day preceding each Interest Reset Date, and
(e) the Interest Determination Date with respect to
an Eleventh District Cost of Funds Rate Note (the
"Eleventh District Cost of Funds Interest
Determination Date") will be the last working day of
the month immediately preceding each Interest Reset
Date on which the Federal Home Loan Bank of San
Francisco publishes the Eleventh District Cost of
Funds Index. Unless otherwise specified in an
applicable Pricing Supplement, the Interest
Determination Date with respect to a Treasury Rate
Note (the "Treasury Rate Interest Determination
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
12
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 latest 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
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").
13
(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, Prime Rate
Notes J.J. Kenny Rate Notes, Eleventh District Cost
of Funds Rate Notes and EURIBOR 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 specified in the applicable
Prospectus Supplement 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
amounts used in or resulting from such calculation on
Floating Rate Notes will be rounded, in the case of
United States dollars, to the nearest cent, or in the
case of a foreign currency, to the nearest unit (with
one-half cent or unit being rounded upward).
(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
14
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
Commercial 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 in
H.15(519), under the heading
"Commercial Paper-Nonfinancial." 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
15
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 in
H.15 Daily Update, or such other
recognized electronic source used
for the purpose of displaying the
applicable rate, under the heading
"Commercial Paper-Nonfinancial." If
such rate is not published in either
H.15(519) or H.15 Daily Update 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 United States dollar
commercial paper in New York, New
York (which may include one or more
of the Agents or their affiliates)
selected by the Calculation Agent
(after consultation with the
Company) for commercial paper of the
specified Index 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) calculated in accordance
with the following formula:
D X 360
Money Market Yield = ------- X 100
360 - (D X M)
16
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.
"H.15(519)" as used in the
calculation of Floating Rates means
the weekly statistical release
designated as H.15(519), or any
successor publication, published by
the Board of Governors of the
Federal Reserve System.
"H.15 Daily Update" as used in the
calculation of Floating Rates means
the daily update of H.15(519),
available through the world-wide-web
site of the Board of Governors of
the Federal Reserve System at
http:/www.bog.frb.fed.us/releases/
h15/update, or any successor site or
publication.
(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 as follows: (a) if
"LIBOR Reuters" is specified in the applicable
Pricing Supplement, the arithmetic mean of the
offered rates 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 appear on the
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 LIBOR Page, or (b) if "LIBOR Telerate" is
specified in
17
the applicable Pricing Supplement or if neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified in
the applicable Pricing Supplement, 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 LIBOR Page
(as defined below) as of 11:00 A.M., London time, on
that LIBOR Interest Determination Date. "LIBOR Page"
means either, (a) if "LIBOR Reuters" is specified in
the applicable Pricing Supplement, the display on the
Reuter Monitor Money Rates Service (or any successor
service) on the page specified in the applicable
Pricing Supplement (or any other page as may replace
that page on that service) for the purpose of
displaying the London interbank rates of major banks
for the Index Currency; or (b) if "LIBOR Telerate" is
specified in the applicable pricing supplement or
neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Pricing Supplement as the
method for calculating LIBOR, the display on Bridge
Telerate, Inc. (or any successor service) on the page
specified in the applicable Pricing Supplement (or
any other page as may replace such page on such
service) for the purpose of displaying the London
interbank rates of major banks for the Index
Currency. If fewer than two offered rates appear on
the LIBOR Page, or if no rate appears on the 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 LIBOR Page, or if no rate appears on the LIBOR
Page, as applicable, LIBOR will be determined as of
approximately 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 by four major
reference banks (which may include affiliates of the
Agents) 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
18
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, then LIBOR for such
LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two
quotations are provided, then 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 (which may include affiliates of the Agents) 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, 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
in the applicable Pricing Supplement as the
currency for which LIBOR shall be
calculated. If no such index currency is
specified in the applicable Pricing
Supplement, the Index Currency shall be U.S.
dollars.
(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 nego-
19
tiable certificates of deposit having the Index
Maturity designated in the applicable Pricing
Supplement as published in H.15(519) under the
caption "CDs (Secondary Market)" or, if not so
published by 3:00 P.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 as
published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption
"CDs (secondary market)". 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 H.15(519) or H.15 Daily Update,
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 or their
affiliates) selected by the Calculation Agent (after
consultation with the Company) for negotiable
certificates of deposit of major United States money
market banks for negotiable United States
certificates of deposit with a remaining maturity
closest to the Index Maturity designated in the
applicable Pricing Supplement in an amount that is
representative for a single transaction in that
market at that time; 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
20
Federal Funds Interest Determination Date, the rate
on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds
(Effective)" and displayed on Bridge Telerate, Inc.
(or any successor service) on page 120 (or any
other page as may replace the specified page on that
service) ("Telerate Page 120") or, if the rate does
not so appear on Telerate Page 120 or is not so
published by 3:00 P.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 for United States dollar federal
funds as published in H.15 Daily Update, or such
other recognized electronic source used for the
purpose of displaying the applicable rate, under the
caption "Federal Funds (Effective)". 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
H.15(519), 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 United States dollar Federal Funds arranged
by three leading brokers of Federal Funds
transactions in The City of New York (which may
include one or more of the Agents or their
affiliates), which brokers 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 brokers 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 from the
21
auction held on the Treasury Rate Interest
Determination Date (the "Auction") of direct
obligations of the United States ("Treasury
Bills") having the Index Maturity specified in the
applicable Pricing Supplement under the caption
"INVESTMENT RATE" on the display on Bridge Telerate,
Inc. (or any successor service) on page 56 (or any
other page as may replace that page on that service)
("Telerate Page 56") or page 57 (or any other page as
may replace that page on that service) ("Telerate
Page 57") 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 Bond
Equivalent Yield (as defined below) of the rate for
the aplicable Treasury Bills as published in H.15
Daily Update, or another recognized electronic source
used for the purpose of displaying the applicable
rate, under the caption "U.S. Government
Securities/Treasury Bills/Auction High", or if the
rate referred to in the preceding sentence is not so
published by 3:00 P.M., New York City time, on such
Calculation Date, the Treasury Rate for that Treasury
Interest Determination Date will be the Bond
Equivalent Yield of the auction rate of the
applicable Treasury Bills as announced by the United
States Department of the Treasury, or if the rate
referred to in the preceding sentence is not so
announced by the United States Department of the
Treasury, or if the Auction is not held, the Treasury
Rate for that Treasury Rate Interest Determination
Date will be the Bond Equivalent Yield of the rate on
the Treasury Rate Interest Determination Date of the
applicable Treasury Bills as published in H.15(519)
under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or if
the rate referred to in the preceding sentence is not
so published by 3:00 P.M., New York City time, on
such Calculation Date, the Treasury Rate for that
Treasury Rate Interest Determination Date will be the
rate on the Treasury Rate Interest Determination Date
of the applicable Treasury Bills as published in H.15
Daily Update, or another recognized electronic source
used for the purpose of displaying the applicable
rate, under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or if
the rate referred to in the preceding sentence is not
so published by 3:00 P.M., New York City time, on
such Calculation Date, the Treasury Rate for that
Treasury Rate Interest Determination
22
Date will be the rate on the Treasury Rate Interest
Determination Date calculated by the Calculation
Agent as the Bond Equivalent Yield 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 (which may include one or more of the Agents
or their affiliates) 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.
"Bond Equivalent Yield" means a yield (expressed as a
percentage) calculated in accordance with the following
formula:
D X N
Bond Equivalent Yield = _____________ X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for Treasury
Bills quoted on a bank discount basis and expressed as a
decimal, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the applicable interest
reset period.
(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.
23
Unless otherwise specified in an applicable
Pricing Supplement, "Prime Rate" means, with respect
to any Prime Rate Interest Determination Date, the
rate published in H.15(519) for such date under the
caption "Bank Prime Loan", or if not so published by
3:00 P.M., New York City time, on the Calculation
Date pertaining to that Prime Rate Interest
Determination Date, the rate on that Prime Rate
Interest Determination Date as published in H.15
Daily Update or such other recognized electronic
source used for the purpose of displaying the
applicable rate, under the caption "Bank Prime Loan".
If neither rate is so published by 3:00 P.M., New
York City time, on the Calculation Date, the Prime
Rate for such Prime Rate Interest Determination Date
will be calculated by the Calculation Agent as the
arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters
Screen USPRIME1 (as defined below) as such bank's
prime rate or base lending rate as of 11:00 A.M., New
York City time, 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 three major
banks (which may include one or more of the Agents or
their affiliates) in The City of New York selected by
the Calculation Agent (after consultation with the
Company); provided, however, that if the banks
selected by the Calculation Agent are not quoting as
mentioned above, the "Prime Rate" for the Interest
Reset Period will be the same as the Prime Rate for
the 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).
Unless otherwise specified in the applicable Pricing
Supplement, "Reuters Screen USPRIME1" means the
display designated as page "USPRIME1" on the Reuters
Monitor Money Rates Service, or any successor service
or page, for the purpose of displaying prime rates or
base lending rates of major United States banks.
24
(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 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,
if CMT Telerate Page 7051 is specified in the
applicable pricing supplement:
(a) the percentage equal to the yield for United
States Treasury securities at "constant maturity"
having the Index Maturity specified in the applicable
Pricing Supplement as published in H.15(519) under
the caption "Treasury Constant Maturities", as the
yield is displayed on Bridge Telerate, Inc. (or any
successor service) on page 7051 (or any other page as
may replace the specified page on that service)
("Telerate Page 7051"), for that CMT Interest
Determination Date, or
(b) if the rate referred to in clause (a) does not so
appear on Telerate Page 7051, the percentage equal to
the yield for United States Treasury securities at
"constant maturity" having the particular Index
Maturity and for that CMT Interest Determination Date
as published in H.15(519) under the caption "Treasury
Constant Maturities", or
(c) if the rate referred to in clause (b) does not so
appear in H.15(519), the rate on that CMT Interest
Determination Date for the period of the particular
Index Maturity as may then be published by either the
Federal Reserve System Board of Governors or the
United States Department of the Treasury that the
Calculation Agent determines to be comparable to the
rate which would otherwise have been published in
H.15(519), or
(d) if the rate referred to in clause (c) is not so
published, the rate on that CMT Interest
Determination Date calculated by the
25
Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices at
approximately 3:30 P.M., New York City time, on that
CMT Interest Determination Date of three leading
primary United States government securities dealers
in The City of New York (which may include one or
more of the Agents or their affiliates) (each, a
"Reference Dealer"), selected by the Calculation
Agent from five Reference Dealers selected by the
Calculation Agent and eliminating the highest
quotation, or, in the event of equality, one of the
highest, and the lowest quotation or, in the event of
equality, one of the lowest, for United States
Treasury securities with an original maturity equal
to the particular Index Maturity, a remaining term to
maturity no more than 1 year shorter than that Index
Maturity and in a principal amount that is
representative for a single transaction in the
securities in that market at that time, or
(e) if fewer than five but more than two of the
prices referred to in clause (d) are provided as
requested, the rate on that CMT Interest
Determination Date calculated by the Calculation
Agent based on the arithmetic mean of the bid prices
obtained and neither the highest nor the lowest of
the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause
(d) are provided as requested, the rate on that CMT
Interest Determination Date calculated by the
Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices as
of approximately 3:30 P.M., New York City time, on
that CMT Interest Determination Date of three
Reference Dealers selected by the Calculation Agent
from five Reference Dealers selected by the
Calculation Agent and eliminating the highest
quotation or, in the event of equality, one of the
highest and the lowest quotation or, in the event of
equality, one of the lowest, for United States
Treasury securities with an original maturity greater
than the particular Index Maturity, a remaining term
to maturity closest to that Index Maturity and in a
principal amount that is representative for a single
transaction in the securities in that market at that
time, or
(g) if fewer than five but more than two prices
referred to in clause (f) are provided as requested,
the rate on that CMT Interest Determination Date
calculated by the Calculation Agent based on
26
the arithmetic mean of the bid prices obtained and
neither the highest nor the lowest of the quotations
will be eliminated, or
(h) if fewer than three prices referred to in clause
(f) are provided as requested, the CMT Rate in effect
on that CMT Interest Determination Date;
if CMT Telerate Page 7052 is specified in the
applicable Pricing Supplement:
(a) the percentage equal to the one-week or
one-month, as specified in the applicable Pricing
Supplement, average yield for United States Treasury
securities at "constant maturity" having the Index
Maturity specified in the applicable Pricing
Supplement as published in H.15(519) opposite the
caption "Treasury Constant Maturities", as the yield
is displayed on Bridge Telerate, Inc. (or any
successor service) (on page 7052 or any other page as
may replace the specified page on that service)
("Telerate Page 7052"), for the week or month, as
applicable, ended immediately preceding the week or
month, as applicable, in which that CMT Interest
Determination Date falls, or
(b) if the rate referred to in clause (a) does not so
appear on Telerate Page 7052, the percentage equal to
the one-week or one-month, as specified in the
applicable Pricing Supplement, average yield for
United States Treasury securities at "constant
maturity" having the particular Index Maturity and
for the week or month, as applicable, preceding that
CMT Interest Determination Date as published in
H.15(519) opposite the caption "Treasury Constant
Maturities," or
(c) if the rate referred to in clause (b) does not so
appear in H.15(519), the one-week or one-month, as
specified in the applicable Pricing Supplement,
average yield for United States Treasury securities
at "constant maturity" having the particular index
maturity as otherwise announced by the Federal
Reserve Bank of New York for the week or month, as
applicable, ended immediately preceding the week or
month, as applicable, in which that CMT Interest
Determination Date falls, or
(d) if the rate referred to in clause (c) is not so
published, the
27
rate on that CMT Interest Determination Date
calculated by the Calculation Agent as a yield to
maturity based on the arithmetic mean of the
secondary market bid prices at approximately 3:30
P.M., New York City time, on that CMT Interest
Determination Date of three Reference Dealers
selected by the Calculation Agent from five Reference
Dealers selected by the Calculation Agent and
eliminating the highest quotation, or, in the event
of equality, one of the highest, and the lowest
quotation or, in the event of equality, one of the
lowest, for United States Treasury securities with an
original maturity equal to the particular Index
Maturity, a remaining term to maturity no more than 1
year shorter than that Index Maturity and in a
principal amount that is representative for a single
transaction in the securities in that market at that
time, or
(e) if fewer than five but more than two of the
prices referred to in clause (d) are provided as
requested, the rate on that CMT Interest
Determination Date calculated by the Calculation
Agent based on the arithmetic mean of the bid prices
obtained and neither the highest nor the lowest of
the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause
(d) are provided as requested, the rate on that CMT
Interest Determination Date calculated by the
Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices as
of approximately 3:30 P.M., New York City time, on
that CMT Interest Determination Date of three
Reference Dealers selected by the Calculation Agent
from five Reference Dealers selected by the
Calculation Agent and eliminating the highest
quotation or, in the event of equality, one of the
highest and the lowest quotation or, in the event of
equality, one of the lowest, for United States
Treasury securities with an original maturity greater
than the particular Index Maturity, a remaining term
to maturity closest to that Index Maturity and in a
principal amount that is representative for a single
transaction in the securities in that market at the
time, or
(g) if fewer than five but more than two prices
referred to in clause (f) are provided as requested,
the rate on that CMT Interest Determination Date
calculated by the Calculation Agent based on the
arithmetic mean of the bid prices obtained and
neither the
28
highest or the lowest of the quotations will be
eliminated, or
(h) if fewer than three prices referred to in
clause (f) are provided as requested, the CMT Rate
in effect on that CMT Interest Determination Date.
If two United States Treasury securities with an
original maturity greater than the Index Maturity
specified in the applicable Pricing Supplement have
remaining terms to maturity equally close to the
particular Index Maturity, the quotes for the United
States Treasury security with the shorter original
remaining term to maturity will be used.
(H) J.J. KENNY RATE NOTES. J.J. Kenny Rate
Notes will bear interest at the interest rate
(calculated with reference to the J.J. Kenny Rate and
the spread or spread multiplier, if any) specified in
the J.J. Kenny Rate Notes and the applicable Pricing
Supplement.
Unless otherwise specified in the applicable
Pricing supplement, the "J.J. Kenny Rate" means, with
respect to any J.J. Kenny Interest Determination
Date, the per annum rate on the date equal to the
index made available and subsequently published by
Kenny Information Systems or its successor. The rate
will be based upon 30-day yield evaluations at par of
bonds of not less than five "high grade" component
issuers. The bonds evaluated will be bonds on which
the interest is excludable from gross income for
federal income tax purposes under the Internal
Revenue Code of 1986. Kenny Information Systems will
select such issuers from time to time, including
issuers of general obligation bonds. However, the
bonds on which the index is based will not include
any bonds the interest on which may trigger an
"alternative minimum tax" or similar tax under the
Code, unless such tax may be imposed on all
tax-exempt bonds. If the rate is not made available
by 3:00 P.M., New York City time, on the calculation
date pertaining to that J.J. Kenny Interest
Determination Date, the J.J. Kenny Rate will be the
rate quoted by a successor indexing agent selected by
the Calculation Agent (after consultation with us).
This rate will be equal to the prevailing rate for
bonds included in the highest short-term rating
category by Moody's Investors Service, Inc. and
Standard & Poor's
29
Corporation for issuers selected by such successor
indexing agent most closely resembling the "high
grade" component issuers selected by Kenny
Information Systems. The bonds for which rates are
quoted will be bonds that may be tendered by their
holders for purchase on not more than seven days'
notice and the interest on which: is variable on a
weekly basis; is excludable from gross income for
federal income tax purposes under the Code; and does
not give rise to an "alternate minimum tax" or
similar tax under the Code, unless all tax-exempt
bonds give rise to such a tax. If a successor
indexing agent is not available, the J.J. Kenny Rate
on the J.J. Kenny Interest Determination Date will be
the J.J. Kenny Rate for the immediately preceding
Interest Reset Period. If there was no such Interest
Reset Period, the J.J. Kenny Rate will be the Initial
Interest Rate.
(I) ELEVENTH DISTRICT COST OF FUNDS RATE
NOTES. Eleventh District Cost of Funds Rate Notes
will bear interest at the interest rate (calculated
with reference to the Eleventh District Cost of Funds
Rate and the spread or spread multiplier, if any)
specified in the Eleventh District Cost of Funds Rate
Notes and in the applicable Pricing Supplement.
Unless otherwise specified in an applicable
Pricing Supplement, the "Eleventh District Cost of
Funds Rate" means, with respect to any Eleventh
District Cost of Funds Interest Determination Date,
the rate equal to the monthly weighted average cost
of funds for the calendar month immediately preceding
the month in which such Eleventh District Cost of
Funds Interest Determination Date falls as set forth
under the caption "11th District" on the display on
Bridge Telerate, Inc. (or any successor service) on
page 7058 (or any other page as may replace the
specified page on that service) ("Telerate Page
7058") as of 11:00 A.M., San Francisco time, on the
Eleventh District Cost of Funds Interest
Determination Date. If such rate does not appear on
Telerate page 7058 on any related Eleventh District
Cost of Funds Interest Determination Date, the
Eleventh District Cost of Funds Rate for the Eleventh
District Cost of Funds Interest Determination Date
will be the Eleventh District Cost of Funds Rate
Index. If the FHLB of San Francisco fails to announce
the rate for the calendar month next preceding the
Eleventh District Cost of Funds Interest
Determination Date, then the Eleventh
30
District Cost of Funds Rate for that date will be the
Eleventh District Cost of Funds Rate in effect on
that Eleventh District Cost of Funds Interest
Determination Date. The "Eleventh District Cost of
Funds Rate Index" will be the monthly weighted
average cost of funds paid by member institutions of
the Eleventh Federal Home Loan Bank District that the
FHLB of San Francisco most recently announced as the
cost of funds for the calendar month preceding the
date of the announcement.
(J) EURIBOR NOTES. EURIBOR Notes will bear
interest at the interest rate (calculated with
reference to EURIBOR and the spread or spread
multiplier, if any) specified in the EURIBOR Notes
and in the applicable Pricing Supplement.
Unless otherwise specified in an applicable
Pricing Supplement, "EURIBOR" means, with respect to
an EURIBOR Determination Date, the rate determined by
the Calculation Agent for each Interest Reset Period
as follows:
The Calculation Agent will determine the
offered rates for deposits in Euros for the period of
the Index Maturity specified in the applicable
Pricing Supplement, commencing on the Interest Reset
Date, which appears on page 248 on Bridge Telerate,
Inc., or any successor service or any page that may
replace page 248 on that service, which is commonly
referred to as "Telerate Page 248" as of 11:00 A.M.,
Brussels time, on that date. If EURIBOR cannot be
determined on a EURIBOR Determination Date as
described above, then the Calculation Agent will
determine EURIBOR as follows:
The Calculation Agent will select four major
banks in the Euro-zone interbank market. The
Calculation Agent will request that the principal
Euro-zone offices of those four selected banks
provide their offered quotations to prime banks in
the Euro-zone interbank market at approximately 11:00
A.M., Brussels time, on the EURIBOR Determination
Date. These quotations shall be for deposits in Euros
for the period of the specified Index Maturity,
commencing on such Interest Reset Date. Offered
quotations must be based on a principal amount equal
to at least $1,000,000 or the approximate equivalent
in Euros that is representative of a single
31
transaction in such market at such time. If two or
more quotations are provided, EURIBOR for the
Interest Reset Period will be the arithmetic mean of
the quotations. If fewer than two quotations are
provided, the Calculation Agent will select four
major banks in the Euro-zone and follow the steps
below.
(1) The Calculation Agent will then determine
EURIBOR for the Interest Reset Period as the
arithmetic mean of rates quoted by those four
major banks in the Euro-zone to leading European
banks at approximately 11:00 A.M., Brussels time,
on the EURIBOR Determination Date. The rates
quoted will be for loans in Euros, for the period
of the specified Index Maturity, commencing on the
Interest Reset Date. Rates quoted must be based on
a principal amount of at least $1,000,000 or the
approximate equivalent in Euros that is
representative of a single transaction in such
market at such time.
(2) If the banks so selected by the Calculation
Agent are not quoting rates as described above,
EURIBOR for the Interest Reset Period will be the
same for the immediately preceding Interest Reset
Period. If there was no such Interest Reset
Period, EURIBOR will be the Initial Interest Rate.
"Euro-zone" means the region comprised of
member states of the European Union that adopt the
single currency in accordance with the Treaty
establishing the European Community, as amended by
the Treaty on European Union.
(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
32
"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 notice of such effect to the Trustee not less
than nor more than the 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.
33
An election to terminate the automatic extension of
the maturity of the Renewable Notes, if not revoked as
described 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, if any,
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
34
which principal and interest on the Note will 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.
The Denominated Currency, the First and
Second Indexed Currencies and the Payment Currency
will be identified in the
35
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 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
36
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 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.
37
(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
38
will be determined by any one of the persons whose name is set
forth below.
NAME OFFICE SPECIMEN SIGNATURE
---- ------ ------------------
Thomas O. Staggs Senior Executive Vice President and /s/ Thomas O. Staggs
Chief Financial Officer --------------------------
Christine M. McCarthy Senior Vice President and Treasurer /s/ Christine M. McCarthy
--------------------------
Jeffrey R. Speed Vice President and Assistant /s/ Jeffrey R. Speed
Treasurer - Corporate Finance --------------------------
Mitchell K. Polon Vice President - Financial Risk /s/ Mitchell K. Polon
Management, Corporate Treasury --------------------------
Natacha J. Rafalski Senior Manager - Corporate Finance /s/ Natacha J. Rafalski
--------------------------
Brenda Hunsinger Senior Manager - Corporate Finance /s/ Brenda Hunsinger
--------------------------
Suet Lai Vice President - Counsel /s/ Suet Lai
--------------------------
David K. Thompson Senior Vice President - Assistant /s/ David K. Thompson
General Counsel --------------------------
(v) FORMS. Unless and until another form is established
pursuant to a subsequent Officers' Certificate pursuant to Section 2.1
of the Indenture, the Discount Notes, the Fixed Rate Notes, the
Floating Rate Notes and the Zero Coupon 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.
39
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.
40
IN WITNESS WHEREOF, the undersigned have hereunto signed this
Certificate on behalf of the Company as of the 24th day of September, 2001.
THE WALT DISNEY COMPANY
By: /s/ Christine M. McCarthy
----------------------------------
Name: Christine M. McCarthy
Title: Senior Vice President and Treasurer
By: /s/ David K. Thompson
----------------------------------
Name: David K. Thompson
Title: Senior Vice President - Assistant
General Counsel
EXHIBIT "A"
REGISTERED REGISTERED
NO. MEDIUM-TERM NOTE, SERIES B 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, New York, New York ("DTC"), 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 DTC and any payment is made to Cede & Co. or
such other entity as requested by an authorized representative of DTC, 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 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.
WELLS FARGO BANK, N.A., as Trustee
By: __________________________________
Authorized Signatory
A-1
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,
initially designated to be the Corporate Trust Office of the Trustee in Los
Angeles, California, and at such additional 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, payments of principal of
and interest on this Note may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the register of
Securities or by wire transfer of immediately available funds to the account of
the Holder of this Note if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 days prior to the applicable
payment date. Notwithstanding the foregoing, the Company will make payments of
interest, if any, on any Interest Payment Date other than the Maturity Date to
each registered Holder of $10,000,000 (or, if the payment currency is other than
United States dollars, the equivalent thereof in the particular payment
currency) or more in aggregate principal amount of definitive Notes (whether
having identical or different terms and provisions) by wire transfer of
immediately available funds if the applicable registered Holder has delivered
appropriate wire transfer instructions in writing to the Trustee not less than
15 days prior to the particular Interest Payment Date. Any wire transfer
instructions received by the Trustee shall remain in effect until revoked by the
applicable registered Holder.
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
A-2
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.
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, Series B. The Indenture does not limit the
aggregate principal amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
September 24, 2001 (herein called the "Indenture"), between the Company and
Wells Fargo Bank, 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.
The Company may from time to time, without the consent of existing Note
Holders, issue additional Notes having the same terms and conditions (including
maturity and interest payment terms) as previously issued Notes in all respects,
except for issue date, issue price and the first payment of interest. Additional
Notes issued in this manner will be fungible with the previously issued Notes to
the extent specified in the applicable Pricing Supplement.
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
A-3
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, 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 maintained for that purpose, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at such
additional 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, 9.5 or 10.3 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, including without limitation,
Sections 5-1401 and 5-1402 of the New York General Obligations Law and New York
Civil Practice Law Rule 327(b).
All undefined terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-4
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: ______________________________________
NAME: Christine M. McCarthy
TITLE: Senior Vice President and Treasurer
Attest:
------------------------------------------
NAME: Marsha L. Reed
TITLE: Vice President and Secretary
A-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM " as tenants in common UNIF GIFT MIN ACT Custodian
------ ------
(Cust.) (Minor)
TEN ENT " as tenants by the
entireties
Under Uniform Gifts to Minors Act
JT TEN " as joint tenants with
right of survivorship
and not as tenants
in common _________________________________
(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.
A-6
EXHIBIT "B"
REGISTERED REGISTERED
NO. FXR- MEDIUM-TERM NOTE, SERIES B 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, New York, New York ("DTC"), 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 DTC and any payment is made to Cede & Co. or
such other entity as requested by an authorized representative of DTC, 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.
WELLS FARGO BANK, N.A., as Trustee
By:
---------------------------------------
Authorized Signatory
B-1
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.
Interest on this Note will be computed on the basis of a 360-day year of twelve
30-day months. 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, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at such
additional 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, payments of principal of and interest on this Note may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Securities or by wire transfer of
immediately available funds to the account of the Holder of this Note if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 days prior to the applicable payment date.
Notwithstanding the foregoing, the Company will make payments of interest, if
any, on any Interest Payment Date other than the Maturity Date to each
registered Holder of $10,000,000 (or, if the payment currency is other than
United States dollars, the equivalent thereof in the particular payment
currency) or more in aggregate principal amount of definitive Notes (whether
having identical or different terms and provisions) by wire transfer of
immediately available funds if the applicable registered Holder has delivered
appropriate wire transfer instructions in writing to the Trustee not less than
15 days prior to the particular Interest Payment Date. Any wire transfer
instructions received by the Trustee shall remain in effect until revoked by the
applicable registered Holder.
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.
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, Series B. The Indenture
does not limit the aggregate principal amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
September 24, 2001 (herein called the "Indenture"), between the Company and
Wells Fargo Bank, N.A., a national banking association, as trustee (herein
B-2
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.
The Company may from time to time, without the consent of existing Note
Holders, issue additional Notes having the same terms and conditions (including
maturity and interest payment terms) as previously issued Notes in all respects,
except for issue date, issue price and the first payment of interest. Additional
Notes issued in this manner will be fungible with the previously issued Notes to
the extent specified in the applicable Pricing Supplement.
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 but excluding 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 and including the Redemption Date and the place or places where Notes
may be surrendered for redemption. However, payment of the Redemption Price,
together with accrued interest to but excluding the Redemption Date, for a Note
for which a redemption notice has been delivered is conditioned upon delivery of
such Note (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) to the office or agency of the Company maintained for that purpose,
initially designated to be the Corporate Trust Office of the Trustee in Los
Angeles, California, and at such additional offices or agencies as the Company
may designate, at any time (whether prior to, on or after the Redemption Date)
after delivery of the redemption notice. Payment of the Redemption Price for the
Note (or portion thereof to be redeemed), together with accrued interest to the
Redemption Date, will be made on the later of the Redemption Date or promptly
following the time of delivery of the Note. 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 aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Notes so surrendered will be
issued in the name of the Holder hereof upon the cancellation hereof.
B-3
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 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, 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 maintained for that purpose, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at such
additional 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, 9.5 or 10.3 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, including without limitation,
Sections 5-1401 and 5-1402 of the New York General Obligations Law and New York
Civil Practice Law Rule 327(b).
All undefined terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
B-4
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: __________________________________________
NAME: Christine M. McCarthy
TITLE: Senior Vice President and Treasurer
Attest:
---------------------------------------
NAME: Marsha L. Reed
TITLE: Vice President and Secretary
B-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT _______ Custodian _______
(Cust.) (Minor)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as tenants ___________________________________________
in common (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.
B-6
EXHIBIT "C"
REGISTERED REGISTERED
NO. FLR- MEDIUM-TERM NOTE, SERIES B 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, New York, New York ("DTC"), 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 DTC and any payment is made to Cede & Co. or
such other entity as requested by an authorized representative of DTC, 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
____ Bridge Telerate, Inc. REGULAR RECORD DATES:
____ Index Currency
____ CD RATE
____ FEDERAL FUNDS RATE INTEREST PAYMENT PERIOD:
____ TREASURY RATE ____ Monthly
____ PRIME RATE ____ Quarterly
____ CMT RATE
____ Telerate Page 7051
____ Telerate Page 7052 ____ Semiannually
____Week ____ Annually
____Month
____ CMT Maturity Index:______________
____ J.J. KENNY RATE
____ ELEVENTH DISTRICT COST OF FUNDS RATE
____ EURIBOR
____ 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:
____ WELLS FARGO BANK, N.A.
C-1
MAXIMUM INTEREST RATE: % ____ OTHER:_____________________
MINIMUM INTEREST RATE: %
---------------------------
C-2
Dated: _______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
WELLS FARGO BANK, N.A., as Trustee
By: __________________________________
Authorized Signatory
C-3
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 Prime Rate,"
"Determination of CMT Rate," "Determination of J.J. Kenny Rate," "Determination
of Eleventh District Cost of Funds Rate" or "Determination of EURIBOR" depending
upon whether the applicable Base Rate specified above is the Commercial Paper
Rate, LIBOR, CD Rate, Federal Funds Rate, Treasury Rate, Prime Rate, CMT Rate,
J.J. Kenny Rate, Eleventh District Cost of Funds Rate or EURIBOR, 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 the 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, initially
designated to be the Corporate Trust Office of the Trustee in Los Angeles,
California, and at such additional 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, payments of principal of
and interest on this Note may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the register of
Securities or by wire transfer of immediately available funds to the account of
the Holder of this Note if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 days prior to the applicable
payment date. Notwithstanding the foregoing, the Company will make payments of
interest, if any, on any Interest Payment Date other than the Maturity Date to
each registered Holder of $10,000,000 (or, if the payment currency is other than
United States dollars, the equivalent thereof in the particular payment
currency) or more in aggregate principal amount of definitive Notes (whether
having identical or different terms and provisions) by wire transfer of
immediately available funds if the applicable registered Holder has delivered
appropriate wire transfer instructions in writing to the Trustee not less than
15 days prior to the particular Interest Payment Date. Any wire transfer
instructions received by the Trustee shall remain in effect until revoked by the
applicable registered Holder.
C-4
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.
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, Series B. The Indenture does not limit the
aggregate principal amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
September 24, 2001 (herein called the "Indenture"), between the Company and
Wells Fargo Bank, 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.
The Company may from time to time, without the consent of existing Note
Holders, issue additional Notes having the same terms and conditions (including
maturity and interest payment terms) as previously issued Notes in all respects,
except for issue date, issue price and the first payment of interest. Additional
Notes issued in this manner will be fungible with the previously issued Notes to
the extent specified in the applicable Pricing Supplement.
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 but excluding 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 and including 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. However, payment of the
Redemption Price, together with accrued interest to but excluding the Redemption
Date, for a Note for which a redemption notice has been delivered is conditioned
upon delivery of such Note (with, if the Company or
C-5
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) to the
office or agency of the Company maintained for that purpose, initially
designated to be the Corporate Trust Office of the Trustee in Los Angeles,
California, and at such additional offices or agencies as the Company may
designate, at any time (whether prior to, on or after the Redemption Date)
after delivery of the redemption notice. Payment of the Redemption Price for
the Note (or portion thereof to be redeemed), together with accrued interest
to the Redemption Date, will be made on the later of the Redemption Date or
promptly following the time of delivery of the Note. 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 aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Notes so surrendered 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 under the heading "Determination of
LIBOR" or "Determination of EURIBOR" 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 to the provisions under the heading "Determination of
LIBOR" or "Determination of EURIBOR" 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
commercial banks 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 other than
U.S. dollars, such day is also not a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center of the country of such denominated currency;
PROVIDED, HOWEVER, that with respect to LIBOR Notes only, such day is also a
London Business Day; AND PROVIDED, FURTHER, that with respect to EURIBOR Notes
and notes denominated in Euros only, such day is also a TARGET Business Day.
"London Business Day" means any day on which commercial banks are open for
business (including dealings in the LIBOR currency) in London. "TARGET Business
Day" means any day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer System is open. "Principal Financial Center" means,
as applicable: (a) the capital city of the country issuing the payment currency;
or (b) the capital city of the country to which the LIBOR currency relates;
PROVIDED, HOWEVER, that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian lire,
Portuguese escudos, South African rand and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney and (solely in the case
of the payment currency) Melbourne, Toronto, Frankfurt, Amsterdam, Milan, London
(solely in the case of the LIBOR currency), Johannesburg and Zurich,
respectively. 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
C-6
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
amounts used in or resulting from such calculation on this Note will be rounded,
in the case of United States dollars, to the nearest cent, or in the case of a
foreign currency, to the nearest unit (with one-half cent or unit 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 in H.15(519), under the heading
"Commercial Paper-Nonfinancial." 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 in H.15 Daily
Update, or such other recognized electronic source used for the purpose
of displaying the applicable rate, under the heading "Commercial
Paper-Nonfinancial." If such rate is not published in either H.15(519)
or H.15 Daily Update 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 United States dollar commercial paper
in New York, New York (which may include one or more of the Agents or
their affiliates) selected by the Calculation Agent (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) calculated in accordance with the following formula:
D X 360
Money Market Yield = --------- X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal and "M"
refers to the actual number of days in the interest period for which
interest is being calculated.
"H.15(519)" as used herein means the weekly statistical release
designated as H.15(519), or any successor publication, published by the Board of
Governors of the Federal Reserve System.
C-7
"H.15 Daily Update" as used herein means the daily update of H.15(519),
available through the world-wide-web site of the Board of Governors of the
Federal Reserve System at http:/www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication.
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
as follows: (a) if "LIBOR Reuters" is specified above, 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 such LIBOR Interest Determination
Date, that appears on the 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 LIBOR Page, or (b) if "LIBOR
Telerate" is specified above or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified above, the rate for deposits in the Index
Currency having the Index Maturity specified above, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date, that appears on the LIBOR Page (as defined below)
as of 11:00 A.M., London time, on such LlBOR Interest Determination
Date. "LIBOR Page" means either: (1) if "LIBOR Reuters" is specified
above, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified above (or any other page as
may replace that page on that service) for the purpose of displaying
the London interbank rates of major banks for the index currency; or
(2) if "LIBOR Telerate" is specified above or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified above as the method for calculating
LIBOR, the display on Bridge Telerate, Inc. (or any successor service)
on the page specified above (or any other page as may replace such page
on such service) for the purpose of displaying the London interbank
rates of major banks for the index currency. If fewer than two offered
rates appear on the LIBOR Page, or if no rate appears on the LIBOR
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 LIBOR Page or if
no rate appears on the LIBOR Page, as applicable, LIBOR will be
determined as of approximately 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
above are offered by four major reference banks (which may include
affiliates of the Agents) 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, then LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, then 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 above), on such LIBOR Interest
Determination Date by three major banks (which may include affiliates
of the Agents) 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, 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.
C-8
"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.
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 H.15(519) under
the caption "CDs (Secondary Market)" or, if not yet published by 3:00
P.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 as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "CDs (secondary market)". 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
H.15(519) or H.15 Daily Update, 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 or their affiliates) selected by the Calculation
Agent (after consultation with Disney) for negotiable certificates of
deposit of major United States money market banks for negotiable United
States certificates of deposit with a remaining maturity closest to the
Index Maturity specified above in an amount that is representative for
a single transaction in that market at that time; 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 such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)"
and displayed on Bridge Telerate, Inc. (or any successor service) on
page 120 (or any other page as may replace the specified page on that
service) ("Telerate Page 120") or, if the rate does not so appear on
Telerate Page 120 or is not so published by 3:00 P.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 for United States dollar
federal funds as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "Federal Funds (Effective)". 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 H.15(519), 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 United States dollars Federal Funds arranged by three
leading brokers of Federal Funds transactions in The City of New York
(which may include one or more of the Agents or their affiliates),
which brokers 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 brokers 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.
C-9
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 from the auction held on the Treasury
Rate Interest Determination Date (the "Auction") of direct obligations
of the United States ("Treasury Bills") having the Index Maturity
specified above, under the caption "INVESTMENT RATE" on the display on
Bridge Telerate, Inc. (or any successor service) on page 56 (or any
other page as may replace that page on that service) ("Telerate Page
56") or page 57 (or any other page as may replace that page on that
service) ("Telerate Page 57"), 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 Bond Equivalent Yield (as defined
below) of the rate for the applicable Treasury Bills as published in
H.15 Daily Update, or another recognized electronic source used for the
purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High". If the rate
referred to in the preceding sentence is not so published by 3:00 P.M.,
New York City time, on the related Calculation Date, the Treasury Rate
for that Treasury Rate Interest Determination Date will be the Bond
Equivalent Yield of the auction rate of the applicable Treasury Bills
as announced by the United States Department of the Treasury. If the
rate referred to in the preceding sentence is not so announced by the
United States Department of the Treasury, or if the Auction is not
held, the Treasury Rate for that Treasury Rate Interest Determination
Date will be the Bond Equivalent Yield of the rate on that Treasury
Rate Interest Determination Date of the applicable Treasury Bills as
published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market". If the rate referred to in
the preceding sentence is not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the Treasury Rate for that
Treasury Rate Interest Determination Date will be the rate on that
Treasury Rate Interest Determination Date of the applicable Treasury
Bills as published in H.15 Daily Update, or another recognized
electronic source used for the purpose of displaying the applicable
rate, under the caption "U.S. Government Securities/Treasury
Bills/Secondary Market". If the rate referred to in the preceding
sentence is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the Treasury Rate for that Treasury Rate
Interest Determination Date will be the rate on that Treasury Rate
Interest Determination Date calculated by the Calculation Agent as the
Bond Equivalent Yield 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 (which may include one or
more of the Agents or their affiliates) 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 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.
"Bond Equivalent Yield" means a yield (expressed as a
percentage) calculated in accordance with the following formula:
D X N
Bond Equivalent Yield - ------------- X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for Treasury Bills
quoted on a bank discount basis and expressed as a decimal, "N" refers
to 365 or 366, as the case may be, and "M" refers to the actual number
of days in the applicable Interest Reset Period.
C-10
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 published in H.15(519) for such date under the caption "Bank Prime
Loan" or, if not so published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to that Prime Rate Interest Determination
Date, the rate on that Prime Rate Interest Determination Date as
published in H.15 Daily Update or such other recognized electronic
source used for the purpose of displaying the applicable rate, under
the caption "Bank Prime Loan". If neither rate is so published by 3:00
P.M., New York City time, on the Calculation Date, the Prime Rate for
such Prime Rate Interest Determination Date will be calculated by the
Calculation Agent as the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen
USPRIME1 (as defined below) as such bank's prime rate or base lending
rate as of 11:00 A.M., New York City time, 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 three major banks (which may include one or more of the Agents or
their affiliates) in The City of New York selected by the Calculation
Agent (after consultation with Disney). If the banks selected by the
Calculation Agent are not quoting as mentioned in the preceding
sentence, the "Prime Rate" for the 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). Unless otherwise
specified in the applicable Pricing Supplement, "Reuters Screen
USPRIME1" means the display designated as page "USPRIME1" on the
Reuters Monitor Money Rates Service, or any successor service or page,
for the purpose of displaying prime rates or base lending rates of
major United States banks.
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") relating to
a CMT Rate Note or any Floating Rate Note for which the interest rate
is determined with reference to the CMT Rate, if CMT Telerate Page 7051
is specified above:
(a) the percentage equal to the yield for United States
Treasury securities at "constant maturity" having the Index Maturity
specified above as published in H.15(519) under the caption "Treasury
Constant Maturities", as the yield is displayed on Bridge Telerate,
Inc. (or any successor service) on page 7051 (or any other page as may
replace the specified page on that service) ("Telerate Page 7051"), for
that CMT Interest Determination Date, or
(b) if the rate referred to in clause (a) does not so appear
on Telerate Page 7051, the percentage equal to the yield for United
States Treasury securities at "constant maturity" having the particular
index maturity and for that CMT Interest Determination Date as
published in H.15(519) under the caption "Treasury Constant
Maturities", or
(c) if the rate referred to in clause (b) does not so appear
in H.15(519), the rate on that CMT Interest Determination Date for the
period of the particular Index Maturity as may then be published by
either the Federal Reserve System Board of Governors or the United
States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate which would otherwise have been published
in H.15(519), or
(d) if the rate referred to in clause (c) is not so published,
the rate on that CMT Interest Determination Date calculated by the
Calculation Agent as a yield to maturity based on the arithmetic mean
of the secondary
C-11
market bid prices at approximately 3:30 P.M., New York City
time, on that CMT Interest Determination Date of three leading
primary United States government securities dealers in The City of New
York (which may include one or more of the Agents or their affiliates)
(each, a "Reference Dealer"), selected by the Calculation Agent from
five Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation, or, in the event of equality, one of
the highest, and the lowest quotation or, in the event of equality, one
of the lowest, for United States Treasury securities with an original
maturity equal to the particular Index Maturity, a remaining term to
maturity no more than 1 year shorter than that Index Maturity and in a
principal amount that is representative for a single transaction in the
securities in that market at that time, or
(e) if fewer than five but more than two of the prices
referred to in clause (d) are provided as requested, the rate on that
CMT Interest Determination Date calculated by the Calculation Agent
based on the arithmetic mean of the bid prices obtained and neither the
highest nor the lowest of the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause (d) are
provided as requested, the rate on that CMT Interest Determination Date
calculated by the Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices as of approximately
3:30 P.M., New York City time, on that CMT Interest Determination Date
of three Reference Dealers selected by the Calculation Agent from five
Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation or, in the event of equality, one of the highest and
the lowest quotation or, in the event of equality, one of the lowest,
for United States Treasury securities with an original maturity greater
than the particular Index Maturity, a remaining term to maturity
closest to that Index Maturity and in a principal amount that is
representative for a single transaction in the securities in that
market at that time, or
(g) if fewer than five but more than two prices referred to in
clause (f) are provided as requested, the rate on that CMT Interest
Determination Date calculated by the Calculation Agent based on the
arithmetic mean of the bid prices obtained and neither the highest nor
the lowest of the quotations will be eliminated, or
(h) if fewer than three prices referred to in clause (f) are
provided as requested, the CMT Rate in effect on that CMT Interest
Determination Date;
if CMT Telerate Page 7052 is specified above:
(a) the percentage equal to the one-week or one-month, as
specified above, average yield for United States Treasury securities at
"constant maturity" having the Index Maturity specified above as
published in H.15(519) opposite the caption "Treasury Constant
Maturities", as the yield is displayed on Bridge Telerate, Inc. (or any
successor service) (on page 7052 or any other page as may replace the
specified page on that service) ("Telerate Page 7052"), for the week or
month, as applicable, ended immediately preceding the week or month, as
applicable, in which that CMT Interest Determination Date falls, or
(b) if the rate referred to in clause (a) does not so appear
on Telerate Page 7052, the percentage equal to the one-week or
one-month, as specified above, average yield for United States Treasury
securities at "constant maturity" having the particular Index Maturity
and for the week or month, as applicable, preceding that CMT Interest
Determination Date as published in H.15(519) opposite the caption
"Treasury Constant Maturities," or
(c) if the rate referred to in clause (b) does not so appear
in H.15(519), the one-week or one-month, as specified above, average
yield for United States Treasury securities at "constant maturity"
having the particular Index Maturity as otherwise announced by the
Federal Reserve Bank of New York for the week or month, as applicable,
ended immediately preceding the week or month, as applicable, in which
that CMT Interest Determination Date falls, or
(d) if the rate referred to in clause (c) is not so published,
the rate on that CMT Interest Determination Date calculated by the
Calculation Agent as a yield to maturity based on the arithmetic mean
of the secondary
C-12
market bid prices at approximately 3:30 P.M., New York City
time, on that CMT Interest Determination Date of three Reference
Dealers selected by the Calculation Agent from five Reference Dealers
selected by the Calculation Agent and eliminating the highest
quotation, or, in the event of equality, one of the highest, and the
lowest quotation or, in the event of equality, one of the lowest, for
United States Treasury securities with an original maturity equal to
the particular Index Maturity, a remaining term to maturity no more
than 1 year shorter than that Index Maturity and in a principal amount
that is representative for a single transaction in the securities in
that market at that time, or
(e) if fewer than five but more than two of the prices
referred to in clause (d) are provided as requested, the rate on that
CMT Interest Determination Date calculated by the Calculation Agent
based on the arithmetic mean of the bid prices obtained and neither the
highest nor the lowest of the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause (d) are
provided as requested, the rate on that CMT Interest Determination Date
calculated by the Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices as of approximately
3:30 P.M., New York City time, on that CMT Interest Determination Date
of three Reference Dealers selected by the Calculation Agent from five
Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation or, in the event of equality, one of the highest and
the lowest quotation or, in the event of equality, one of the lowest,
for United States Treasury securities with an original maturity greater
than the particular Index Maturity, a remaining term to maturity
closest to that Index Maturity and in a principal amount that is
representative for a single transaction in the securities in that
market at the time, or
(g) if fewer than five but more than two prices referred to in
clause (f) are provided as requested, the rate on that CMT Interest
Determination Date calculated by the Calculation Agent based on the
arithmetic mean of the bid prices obtained and neither the highest or
the lowest of the quotations will be eliminated, or
(h) if fewer than three prices referred to in clause (f) are
provided as requested, the CMT Rate in effect on that CMT Interest
Determination Date.
If two United States Treasury securities with an original maturity
greater than the Index Maturity specified above have remaining terms to maturity
equally close to the particular Index Maturity, the quotes for the United States
Treasury security with the shorter original remaining term to maturity will be
used.
DETERMINATION OF J.J. KENNY RATE. If the J.J. Kenny 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
J.J. Kenny Rate and the Spread or Spread Multiplier, if any, specified above, in
accordance with the following provisions:
"J.J. Kenny Rate" means, with respect to any Interest
Determination Date specified below (a "J.J. Kenny Rate Interest
Determination Date"), the per annum rate on the date equal to the index
made available and subsequently published by Kenny Information Systems
or its successor. The rate will be based upon 30-day yield evaluations
at par of bonds of not less than five "high grade" component issuers.
The bonds evaluated will be bonds on which the interest is excludable
from gross income for federal income tax purposes under the Internal
Revenue Code of 1986. Kenny Information Systems will select such
issuers from time to time, including issuers of general obligation
bonds. However, the bonds on which the index is based will not include
any bonds the interest on which may trigger an "alternative minimum
tax" or similar tax under the Code, unless such tax may be imposed on
all tax-exempt bonds. If such rate is not made available by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to that J.J.
Kenny Interest Determination Date, the J.J. Kenny Rate will be the rate
quoted by a successor indexing agent selected by the Calculation Agent
(after consultation with Disney). This rate will be equal to the
prevailing rate for bonds included in the highest short-term rating
category by Moody's Investors Service, Inc. and Standard & Poor's
Corporation for issuers selected by such successor indexing agent most
closely resembling the "high grade" component issuers selected by Kenny
Information Systems. The bonds for which
C-13
rates are quoted will be bonds that may be tendered by their holders
for purchase on not more than seven days' notice and the interest on
which: is variable on a weekly basis; is excludable from gross income
for federal income tax purposes under the Code; and does not give rise
to an "alternate minimum tax" or similar tax under the Code, unless all
tax-exempt bonds give rise to such a tax. If a successor indexing agent
is not available, the J.J. Kenny Rate on the J.J. Kenny Interest
Determination Date will be the J.J. Kenny Rate for the immediately
preceding Interest Reset Period. If there was no such Interest Reset
Period, the J.J. Kenny Rate will be the Initial Interest Rate.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. If the Eleventh District
Cost of Funds 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 Eleventh District Cost of Funds Rate and
the Spread or Spread Multiplier, if any, specified above, in accordance with the
following provisions:
"Eleventh District Cost of Funds Rate" means, with respect to
any Interest Determination Date specified below (an "Eleventh District
Cost of Funds Interest Determination Date"), the rate equal to the
monthly weighted average cost of funds for the calendar month
immediately preceding the month in which the Eleventh District Cost of
Funds Interest Determination Date falls as set forth under the caption
"11th District" on the display on Bridge Telerate, Inc. (or any
successor service) on page 7058 (or any other page as may replace the
specified page on that service) ("Telerate Page 7058") as of 11:00
A.M., San Francisco time, on the Eleventh District Cost of Funds
Interest Determination Date. If such rate does not appear on Telerate
page 7058 on any related Eleventh District Cost of Funds Interest
Determination Date, the Eleventh District Cost of Funds Rate for the
Eleventh District Cost of Funds Interest Determination Date will be the
Eleventh District Cost of Funds Rate Index. If the FHLB of San
Francisco fails to announce the rate for the calendar month next
preceding the Eleventh District Cost of Funds Interest Determination
Date, then the Eleventh District Cost of Funds Rate for that date will
be the Eleventh District Cost of Funds Rate in effect on that Eleventh
District Cost of Funds Interest Determination Date.
The "Eleventh District Cost of Funds Rate Index" will be the
monthly weighted average cost of funds paid by member institutions of
the Eleventh Federal Home Loan Bank District that the FHLB of San
Francisco most recently announced as the cost of funds for the calendar
month preceding the date of the announcement.
DETERMINATION OF EURIBOR. If EURIBOR 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 EURIBOR and the Spread or
Spread Multiplier, if any, specified above, in accordance with the following
provisions:
"EURIBOR" means, with respect to any Interest Determination Date
specified below (a "EURIBOR Interest Determination Date"), the offered
rates for deposits in Euros for the period of the Index Maturity
specified above, commencing on the Interest Reset Date, which appears
on page 248 on Bridge Telerate, Inc., or any successor service or any
page that may replace page 248 on that service, which is commonly
referred to as "Telerate Page 248" as of 11:00 A.M., Brussels time, on
that date. If EURIBOR cannot be determined on a EURIBOR Interest
Determination Date as described in the preceding sentence, then the
Calculation Agent will select four major banks in the Euro-zone
interbank market and request that the principal Euro-zone offices of
those four selected banks provide their offered quotations to prime
banks in the Euro-zone interbank market at approximately 11:00 A.M.,
Brussels time, on the EURIBOR Determination Date. These quotations
shall be for deposits in Euros for the period of the specified Index
Maturity, commencing on such Interest Reset Date. Offered quotations
must be based on a principal amount equal to at least $1,000,000 or the
approximate equivalent in Euros that is representative of a single
transaction in such market at such time. If two or more quotations are
provided, EURIBOR for the Interest Reset Period will be the arithmetic
mean of the quotations. If fewer than two quotations are provided, the
Calculation Agent will select four major banks in the Euro-zone and
then determine EURIBOR for the Interest Reset Period as the arithmetic
mean of rates quoted by those four major banks in the Euro-zone to
leading European banks at approximately 11:00 A.M., Brussels time, on
the EURIBOR Determination Date. The rates quoted will be for loans in
Euros, for the period of the specified Index Maturity, commencing on
the
C-14
Interest Reset Date. Rates quoted must be based on a principal
amount of at least $1,000,000 or the approximate equivalent in Euros
that is representative of a single transaction in such market at such
time. If the banks so selected by the Calculation Agent are not quoting
rates as described above, EURIBOR for the Interest Reset Period will be
the same for the immediately preceding Interest Reset Period. If there
was no such Interest Reset Period, EURIBOR will be the Initial Interest
Rate.
"Euro-zone" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the Treaty establishing
the European Community, as amended by the Treaty on European Union.
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. If no notice period is specified in the
Pricing Supplement, such notice shall be given no less than 30 days and
no more than 60 days 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.
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
C-15
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.
APPLICABLE INTEREST DETERMINATION DATE AND CALCULATION 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." The Commercial Paper Interest
Determination Date, the Federal Funds Interest Determination Date and the Prime
Rate Interest Determination Date will be the Business Day preceding each
Interest Reset Date. The CD Interest Determination Date, the CMT Interest
Determination Date and the J.J. Kenny 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 EURIBOR Interest Determination Date will be the second
TARGET Business Day preceding such Interest Reset Date. The Eleventh District
Cost of Funds Interest Determination Date will be the last working day of the
month immediately preceding each Interest Reset Date on which the Federal Home
Loan Bank of San Francisco publishes the Eleventh District Cost of Funds Index.
The Treasury Rate Interest Determination Date will be the day in the week in
which the Interest Reset Date falls 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 latest 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 that will
become effective as a result of the determination made for the next Interest
Reset Date.
The Calculation Agent shall calculate the interest rate on this Note in
accordance with the foregoing rate or rates 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.
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, Prime Rate, J.J. Kenny Rate,
Eleventh District Cost of Funds Rate and EURIBOR 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.
C-16
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, 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 maintained for that purpose, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at such
additional 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, 9.5 or 10.3 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, including without limitation,
ss.ss. 5-1401 and 5-1402 of the New York General Obligations Law and New York
Civil Practice Law Rule 327(b).
All undefined terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
C-17
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:
-------------------------------------
NAME: Christine M. McCarthy
TITLE: Senior Vice President and Treasurer
Attest:
---------------------------------------
NAME: Marsha L. Reed
TITLE: Vice President and Secretary
C-18
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT Custodian
------ ------
(Cust.) (Minor)
TEN ENT - as tenants by the
entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as -----------------------------------------
tenants in common (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.
C-19
EXHIBIT "D"
REGISTERED REGISTERED
NO. MEDIUM-TERM NOTE, SERIES B 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, New York, New York ("DTC"), 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 DTC and any payment is made to Cede & Co. or
such other entity as requested by an authorized representative of DTC, 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: 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.
WELLS FARGO BANK, N.A., as Trustee
By: __________________________________
Authorized Signatory
D-1
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, initially designated to be the Corporate Trust
Office of the Trustee in Los Angeles, California, and at such additional 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,
payments of principal of and interest on this Note may be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the register of Securities or by wire transfer of immediately available funds to
the account of the Holder of this Note if appropriate wire transfer instructions
have been received in writing by the Trustee not less than 15 days prior to the
applicable payment date. Notwithstanding the foregoing, the Company will make
payments of interest, if any, on any Interest Payment Date other than the
Maturity Date to each registered Holder of $10,000,000 (or, if the payment
currency is other than United States dollars, the equivalent thereof in the
particular payment currency) or more in aggregate principal amount of definitive
Notes (whether having identical or different terms and provisions) by wire
transfer of immediately available funds if the applicable registered Holder has
delivered appropriate wire transfer instructions in writing to the Trustee not
less than 15 days prior to the particular Interest Payment Date. Any wire
transfer instructions received by the Trustee shall remain in effect until
revoked by the applicable registered Holder.
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.
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, Series B. The Indenture does not limit the
aggregate principal amount of the Securities.
The Company issued this Note pursuant to an Indenture, dated as of
September 24, 2001 (herein called the "Indenture"), between the Company and
Wells Fargo Bank, 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.
D-2
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.
The Company may from time to time, without the consent of existing Note
Holders, issue additional Notes having the same terms and conditions (including
maturity and interest payment terms) as previously issued Notes in all respects,
except for issue date, issue price and the first payment of interest. Additional
Notes issued in this manner will be fungible with the previously issued Notes to
the extent specified in the applicable Pricing Supplement.
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, 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 maintained for that purpose, initially designated to be the
Corporate Trust Office of the Trustee in Los Angeles, California, and at such
additional 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, 9.5 or 10.3 of the Indenture, not involving any transfer).
D-3
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, including without limitation,
Sections 5-1401 and 5-1402 of the New York General Obligations Law and New York
Civil Practice Law Rule 327(b).
All undefined terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
D-4
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: ______________________________________
NAME: Christine M. McCarthy
TITLE: Senior Vice President and Treasurer
Attest:
______________________________________
NAME: Marsha L. Reed
TITLE: Vice President and Secretary
D-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common UNIF GIFT MIN ACT _____ Custodian _____
(Cust.) (Minor)
TEN ENT as tenants by the entireties
Under Uniform Gifts to Minors Act
JT TEN as joint tenants with right
of survivorship and not as tenants ________________________________________
in common (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.
D-6