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).
|
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
|
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).
|
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:
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
|
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.
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
|
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
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.
(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
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
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
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
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
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.
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.
(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
"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
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
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
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
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
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
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.
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"),
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
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.
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.
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.
(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
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
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,
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
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.
(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
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;
(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
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.
(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
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
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
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
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
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
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
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.
(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
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,
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
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
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
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).
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.
EXHIBIT B
The following terms, if applicable, shall be agreed to by each Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $__________ (or principal amount of foreign currency or composite currency)
Interest Rate
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Index Maturity:
CMT Maturity Index, if any:
Interest Determination Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent (if other than the Trustee):
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Stated Maturity:
Final Maturity (for Renewable Notes):
Initial Maturity (for Renewable Notes):
Purchase Price: _____%
Settlement Date and Time:
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:
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
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
|
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,
|
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
|
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
|
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
|
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
|
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
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
|
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.
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
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"
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
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
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
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
|
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
|
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.
|
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 __________.
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
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
|
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
|
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.
"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.
"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.
"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
|
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
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.
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
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;
(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
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.
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
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
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
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.
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
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
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
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.
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.
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
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,
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
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.
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.
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.
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
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
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
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
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
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
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
(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.
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,
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.
(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;
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.
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
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.
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
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
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.
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
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);
(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
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
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
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.
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
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
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:
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
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
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
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.
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
---------------------------
|
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.
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.
*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]
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
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.
[NAME OF ACCOUNT HOLDER]
AS, OR AS AGENT FOR,
THE BENEFICIAL OWNER(S) OF THE SECURITIES
TO WHICH THIS CERTIFICATE RELATES.
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
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
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
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,
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
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.
(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.
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
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.
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
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
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.
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.
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
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
______________________________________________________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.
|
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.
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
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
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.
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.
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
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
______________________________________________________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.
|
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
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
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
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.
(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
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.
(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
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.
(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
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
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
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").
(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
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
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)
|
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
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
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-
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
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
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
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.
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.
(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
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
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
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
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
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
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
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
"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.
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
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
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
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.
(u) PERSONS TO ESTABLISH SPECIFIC TERMS. The principal amount, any interest rate (or manner in which interest is to be determined), any Interest Payment Dates, any Regular Record Dates, the Stated Maturity, any Redemption Date or Dates (and if on any such Redemption Date a premium is to be paid by the Company, the amount of such premium) and any other relevant terms of any Note
will be determined by any one of the persons whose name is set forth below.
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.
Each of the undersigned, for himself, states that he has read and is familiar with the provisions of Article Two of the Indenture relating to the establishment of a series of Securities thereunder and the establishment of forms of Securities representing a series of Securities thereunder and, in each case, the definitions therein relating thereto; that he is generally familiar with the other provisions of the Indenture and with the affairs of the Company and its acts and proceedings and that the statements and opinions made by him in this Certificate are based upon such familiarity; and that he has made such examination or investigation as is necessary to enable him to determine whether or not the covenants and conditions referred to above have been complied with; and in his opinion, such covenants and conditions have been complied with.
IN WITNESS WHEREOF, the undersigned 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:
---------------------
|
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
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
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
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.
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
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
+--------------------------
| - -
+--------------------------
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.
|
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:
-------------------------
|
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
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
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.
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.
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
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.
|
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: %
---------------------------
|
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
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.
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
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
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.
"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.
"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.
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.
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
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
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
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
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
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.
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.
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:
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
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.
|
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:
---------------------
|
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
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.
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).
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.
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
|
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 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.
|