EXHIBIT 4.23
FORM OF AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES
By and Between
THE XXXX DISNEY COMPANY,
as Sponsor
and
DISNEY CAPITAL TRUST [I / II / III]
Dated as of ________ __, 200_
AGREEMENT AS TO EXPENSES AND LIABILITIES
This AGREEMENT AS TO EXPENSES AND LIABILITIES (this
"Agreement") is made as of _______ __, 200_, between THE XXXX DISNEY COMPANY,
a Delaware corporation ("Disney"), as Sponsor and DISNEY CAPITAL TRUST
[I / II / III], a Delaware business trust (the "Trust").
WHEREAS, Disney, as Sponsor, and Wilmington Trust Company,
as Delaware Trustee, established the Trust pursuant to a Trust Agreement
dated as of August 16, 2001 (the "Original Trust Agreement") and a
Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on August 16, 2001;
WHEREAS, the Trust intends to issue and sell its ___% Trust
Common Securities (the "Trust Common Securities") to, and purchase Series
___% Junior Subordinated Debt Securities (the "Debt Securities") from,
Disney, and to issue and sell its ___% Trust Preferred Securities (the "Trust
Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of _______ __, 200_, as the same may be amended from time
to time (the "Trust Agreement");
WHEREAS, Disney will directly or indirectly own all of the
Trust Common Securities of the Trust and will issue the Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Trust Preferred Securities, which purchase Disney hereby agrees
shall benefit Disney and which purchase Disney acknowledges will be made in
reliance upon the execution and delivery of this Agreement, Disney and the
Trust hereby agree as follows:
ARTICLE I
GUARANTEE BY DISNEY
1.1 GUARANTEE BY DISNEY. Subject to the terms and
conditions hereof, Disney hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries") the full payment, when and as due,
of any and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any Trust
Preferred Securities the amounts due such holders pursuant to the terms of
the Trust Preferred Securities. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
1.2 TERMS OF AGREEMENT. This Agreement shall terminate
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; PROVIDED, HOWEVER, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Trust Preferred Securities or
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any Beneficiary must restore payment of any sums paid under the Trust
Preferred Securities, under any Obligation, under the Guarantee Agreement
dated _______ __, 200_ by the guarantor and Xxxxx Fargo Bank, National
Association, as guarantee trustee, or under this Agreement for any reason
whatsoever. Except as set forth in this Section 1.2, this Agreement is
continuing, irrevocable, unconditional and absolute.
1.3 WAIVER OF NOTICE. Disney hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Disney hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
1.4 NO IMPAIRMENT. The obligations, covenants,
agreements and duties of Disney under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of
the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Disney with respect to the happening of any of the
foregoing.
1.5 ENFORCEMENT. A Beneficiary may enforce this
Agreement directly against Disney, and Disney waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against Disney.
1.6 SUBROGATION. Disney shall be subrogated to all
rights (if any) of the Trust in respect of any amounts paid to the
Beneficiaries by Disney under this Agreement; PROVIDED, HOWEVER, that Disney
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
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ARTICLE II
BINDING EFFECT
2.1 BINDING EFFECT. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Disney and shall inure to the benefit of the
Beneficiaries.
2.2 AMENDMENT. So long as there remains any
Beneficiary, or any Trust Preferred Securities of any series remain
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Trust Preferred
Securities.
2.3 NOTICES. Any notice or communication by Disney or
the Trust to the other is duly given if in writing and delivered in person or
mailed by first-class mail:
(a) if to Disney to:
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
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Telecopy No.:
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(b) if to the Trust to:
Disney Capital Trust [I / II / III]
c/o The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
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Telecopy No.:
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Disney or the Trust by notice to the other may designate
additional or different addresses for subsequent notices or communications.
2.4 COUNTERPARTS.
This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
2.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THEREOF.
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IN WITNESS WHEREOF, the parties caused this agreement to be
duly executed as of the day and year first above written.
THE XXXX DISNEY COMPANY, as Sponsor
By:
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Name:
Title:
DISNEY CAPITAL TRUST [I / II / III]
By:
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[NAME OF ADMINISTRATIVE TRUSTEE],
as Administrative Trustee
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